Orissa High Court
Adhunik Metaliks Ltd. vs Union Of India (Uoi) And Ors. on 12 March, 2007
Equivalent citations: 103(2007)CLT617, AIR 2007 (NOC) 1045 (ORI.)
Bench: Chief Justice, N. Prusty
JUDGMENT A.K. Ganguly, C.J.
1. This Writ Petition has been filed by M/s. Adhunik Metaliks Ltd. (formerly known as Neepaz Metalics Ltd.) which is a company registered under the Companies Act, 1956. The second Petitioner is one Shri Sanjay Pratap. In this petition there are about five Opposite Parties, four of which are governmental authorities and the fifth Opposite Party is one M/s. Bhushan Steel and Strips Ltd., another company registered under the Companies Act. Opposite Party Nos. 6 to 11 are different companies, arrayed as pro forma Opposite Parties. This Writ Petition has been filed challenging the decision taken by Opposite Party No. 1 on 13.01.2006. The said decision was taken about the mode of allocation of new Patrapada Coal Block in Mahanadi Coal Fields area to Opposite Party No. 5 and also to the Petitioner and various other pro forma Respondents. Whether the scheme of allotment disclosed in the said letter is legally sustainable or not is directly in issue in this Writ Petition.
2. Before the Court can go into the said question on merits, a preliminary objection has been raised on behalf of the Union of India, inter alia on the ground that the present Writ Petition is barred by principles of Res Judicata or at any rate by constructive Res Judicata or principles analogous thereto.
3.The Court heard the parties at length on the said preliminary question. Since the decision on this question, one way or the other, is vital to the maintainability of the Writ Petition, the Court proposes to decide the same. The aforesaid preliminary objection has been raised in the following factual background.
4. The Petitioner's case is that this Patrapada coal block was allocated after 2003 to the Petitioner and various other companies in different quantities. The Petitioner complains that as a result of the impugned order, the allocation of the Petitioner company of 42 MMT in 2003, has been reduced to 31 MMT. Apart from that under the present scheme in the impugned order, Opposite Party No. 5 in whose name a mining lease is to be granted would become a leader and Opposite Party No. 5 would do the mining operations at its own cost and the coal raised by it would form a common pool. Out of the said common pool, Mahanadi Coal Fields would purchase the coal from Opposite Party No. 5 and then would supply the same to 7 other companies including the Petitioner in accordance with their individual allotments against,a price.
5. In this Judgment on preliminary objection the Court is not going into the legality or otherwise of the said scheme of allotment. The Court is only Considering the validity of the preliminary objection.
6. The Learned Counsel for the Union of India submitted that prior to the passing of the impugned order, a letter dated 13th October, 2005 was written by the Government of India, Ministry of Coal to the Petitioner informing it that it has been identified as one of the joint allocatees in a captive coal block of Patrapada. Various options/proposals were given in the said letter and asking the Petitioner to give its response. The Learned Counsel pointed out that, to the said letter, response came jointly from the Petitioner as well as the pro forma Opposite Party Nos. 6 to 11 together in writing by a representation dated 3.11.2005. The Learned Counsel further submitted that anybody reading the said letter dated 3rd November, 2005 signed under the signature of all the above mentioned parties would reasonably come to the conclusion that they have a common interest in the matter of allotment of coal block and they were moving together. The Learned Counsel further pointed out that another letter dated 8th December, 2005 was also jointly issued by all these parties.,g4vingi their common views to the Opposite Party No. 1 in respect of its letter dated 13th October, 2005. For the third time another letter was written by all the seven parties together on 19th December, 2005 against the letter of the Opposite Party No. 1 dated 13th October, 2005. The Learned Counsel further submitted that all these parties were moving together for a common interest which is demonstrated by those three letters. Even after the impugned Order dated 13.01.2006 a joint representation dated 4th February, 2006 against the impugned order was sent to the Opposite Party No. 1 by them together. The Learned Counsel submitted that all these parties were moving together will also appear from the draft minutes of the 28th meeting of the Screening Committee held on 15.04.2005 in Bhaba Hall, Scope Building, New Delhi as also from the minutes of the meeting with the allocatees of that captive coal blocks held on 7th June, 2005 in the Aluminium Room of Shastri Bhawan, New Delhi. The Learned Counsel submitted that in view of such materials on record, it is clear that the interest of the Petitioner was common with the pro forma Opposite Parties 6 to 11 in this case.
7. In the background of these facts, one of those seven parties, SMC Power Generation Ltd.- pro forma Opposite Party No. 9 in this case (hereinafter called 'SMC') and who was always acting in unison with the Petitioner filed a Writ Petition in Delhi High Court relying on the very same representations which are jointly signed by the Petitioner and others. Such Writ Petition was filed on or about 28th February,2006 being W.P. No 2852 of 2006 and was heard by a Learned Single Judge of Delhi High Court at length. The Writ Petitioner in this case was the Respondent No. 9 in the said case filed in Delhi.
8. After hearing in that matter was concluded on 1.3.2006, the Learned Single Judge of Delhi High Court reserved its Judgment and the said Judgment was pronounced on 5th April, 2006 dismissing the Writ Petition, The Writ Petitioner, who was Respondent No. 9 in the said Writ Petition before Delhi High Court, filed the present Writ Petition on 6.3.2006. It also appears from the record that even after the dismissal of the Writ Petition by the Delhi High Court, an L.P.A. has been filed and in the said L.P.A. notices were issued by the Division Bench on 8.5.2006. It is not in dispute that the present Petitioner has got notice of the L.P.A. proceedings in Delhi and entered appearance. It is submitted that under these circumstances, the decision in the Delhi High Court case operates, as Res Judicata and the present Writ Petition in Orissa High Court is barred under the general principles of Res Judicata or constructive Res Judicata and principles analogous thereto.
9. Before considering the various decisions cited in this case by the rival parties, this Court proposes to consider the facts urged by the Learned Counsel for the Petitioner in answer to the preliminary objection of maintainability. The stand of the Petitioner is that the Writ Petition filed by SMC before the Delhi High Court was without its knowledge and also without the knowledge of five other allottees and in that Writ Petition no relief has been claimed against the Petitioner. No notice of the Delhi Writ Petition was served on the Petitioner. In the Writ Petition which has been filed before the Orissa High Court, there are two principal Opposite Parties, namely, Union of India and M. S. Bhushan Steel and Strips Ltd., 5th Opposite Party. Apart from that, State of Orissa is also a party. The other allottees have been arrayed as pro forma Respondents. It is also stated that the cause of action and the relief claimed in the Writ Petition in Orissa High Court are not similar to the one which was filed in Delhi High Court. In the Writ Petition filed in Delhi High Court, SMC claimed its individual and independent right and the same was in no way related to any other parties. In the Judgment, Delhi High Court has recorded a finding that there is no "communality of right and interest" between the Petitioner and other allottees. It was also pointed out that the representation which has been signed by seven allottees together, including the Writ Petitioner and SMC, against the decision of the Central Government cannot be the basis to conclude that the Writ Petitioner had common right with the other allottees. It is also submitted that the decision of Delhi High Court is not final inasmuch as an appeal has been filed against it and the matter is therefore subjudice.
10. The Learned Counsel for Opposite Party No. 1 by way of giving factual reply contended that if the Writ Petition had succeeded in Delhi High Court and the impugned Order dated 13th January, 2006 had been quashed, in that case, the Petitioner certainly would have claimed the benefit of the said Judgment inter alia on the ground that throughout the Petitioner had jointly moved with SMC on the basis of a common interest. It was also submitted that it is wrong on the part of the Writ Petitioner to urge that the Judgment has not been finally decided. In fact the Writ Petition filed by SMC has been dismissed finally by a competent Court and the mere filing of an appeal does not alter the position.
11. From the facts discussed above, the following position emerges:
(a) Both in the Delhi High Court Writ Petition filed by SMC (hereinafter referred to as 'Delhi Petition') and in the present Writ Petition filed before the Orissa High Court (hereinafter referred to as 'Orissa Petition') the issue is the same. The central issue in both the cases is the correctness or otherwise of the Order dated 13.01.2006 passed by the Opposite Party No.1.
(b) The parties in both the cases, namely, in the Delhi petition and in the Orissa petition are the same.
(c) Both in the Delhi petition and in the Orissa petition there is a prayer to safeguard the interest of the Respondents 6 to 11 (in the Delhi petition) and Opposite Parties 5 to 11 (in the Orissa petition). Prayer 'e' and T of the Orissa Petition and prayer 'ii' and 'iv' of the Delhi petition would demonstrate that.
(d) A Court of competent jurisdiction has finally adjudicated the issue in Delhi petition by dismissing it and upholding the Order dated 13.01.2006 passed by Opposite Party No. 1.
(e) An appeal from the said Judgment has been taken by SMC and the same is pending before the Delhi High Court.
(f) The Petitioner has admittedly received notice of the said appeal in Delhi High Court and is representing itself through Counsel before the Appeal Bench of Delhi High Court.
12. Now the question is whether the subsequently filed Orissa petition questioning the legality of the Order dated 13.01.2006 in the aforesaid admitted factual background is maintainable or whether it can be said to be barred by principles of Res Judicata or Constructive Res Judicata or principles analogous thereto. Both sides have cited several Judgments in support of their submissions.
13. Before considering the decisions cited by the parties, this Court wants to clarify a few fundamentals. It is well settled that the provisions of Section 11 of the Civil Procedure Code 1908 are not exhaustive of the principles of Res Judicata.
14. Here we are not dealing with a suit. Therefore, the general principles of Res Judicata which are based on sound public policy are applicable. Res Judicata is a principle of judicial administration and is based on the common law maxim of public policy aiming at finality of litigation and preventing a litigant from being twice over on the same issue.
15. The Privy Council in a series of Judgments explained this doctrine. In Kalipada De v. Dwijapada Das reported in 57 IA 24, the Privy Council held:
The question as to what is to be considered to be res judicata is dealt with by Section 11 of the Code of Civil Procedure, 1908. In that Section are given many examples of circumstances in which the rule concerning res judicata applies; but it has often been explained by this Board that the terms of Section 11 are not be regarded as exhaustive.
In Kalipada, Lord Justice Darling, speaking for the Bench, quoted with approval the observations of Sir Lowrence Jenkins on Res Judicata in Sheoparsan Singh and Ors. v. Ramnandan Singh reported in 43 LA. 91. Those observations are very pertinent and I would rather quote them:
their Lordships desire to emphasise that the rule of res-judicata, while-founded on ancient precedent, is dictated by a wisdom which is for all time. 'It hath been well said,' declared Lord Coke, 'interest reipublicae ut sit finis litium-otherwise, great oppression might be done under colour and pretence of law' (6 Coke, 9a). Though the rule of the Code may be traced to an English source, it embodies a doctrine in no way opposed to the spirit of the law as expounded by the Hindu commentators. Vijnanesvara and Nilakantha include the plea of a former Judgment among those allowed by law, each citing for this purpose the text of Katyayana, who describes the plea thus: 'If a person, though defeated at law, sue again, he should be answered, "You were defeated formerly." This is called the plea of former Judgment. (See the Mitakshara (Vyavaharaj, bk. II., ch. I., edited by J.R. Gharpure, p.14, and the Mayuka, ch.l., s.1, p.11, of Mandlik's edition.) And so the application of the rule by the Courts in India should be influenced by no technical considerations of form, but by matter of substance within the limits allowed by law.
16. This statement of law in Sheoparsan v. Ramnandan (supra) has been approved by Justice Mathew in the case of Iftikhar Ahmed and Ors. v. Syed Meharban Ali and Ors. .
17. The Hon'ble Supreme Court in Lal Chand v. Radha Kishan , also held:
The principle of Res Judicata is conceived in the larger public interest which requires that all litigation must, sooner than later, come to an end. The principle is also founded on equity, justice and good conscience which require that a party which has once succeeded on an issue should not be permitted to be harassed by a multiplicity of proceedings involving determination of the same issue.
18. Apart from following those principles, this Court in order to apply the bar of Res Judicata among co-defendants must consider several criteria pointed out in the case of Mt. Munni Bibi and Anr. v. Tirloki Nath and Ors. AIR 1931 Privy Council 114 In Munni Bibi, three tests have been laid down to find out whether the decision in the former suit will operate as Res Judicata between co-defendants. Those tests are:
(i) There must be a conflict of interest between the co-defendants.
(ii) It must be necessary to decide this conflict in order to give relief to the Petitioner.
(iii) The question between the co-Respondent must be finally decided.
19. In the Delhi petition, the Petitioner in Orissa petition is admittedly a co-Respondent. In the Orissa petition there is a conflict of interest between the Petitioner and Bhusan (Opposite Party No. 5)and Central Government (Opposite Party No. 1). The said conflict is present in the Delhi petition, namely between SMC, Bhusan and Central Government. The said conflict of interest has to be decided if the Petitioner in Delhi petition i.e. SMC or the Petitioner in Orissa petition is to get any relief.The third requirement that the question on the issue has to be decided is also satisfied as the Delhi High Court had dismissed SMC's petition on merits by a detailed speaking order.
20. If these three criteria are satisfied, as they obviously are, the decision in Delhi petition would create the bar of Res Judicata on the Orissa petition. The fact that the Petitioner did not get notice or enter appearance in Delhi petition will not make any difference. The Petitioner was certainly a party in Delhi petition and in the Letters Patent Appeal which Has been filed by SMC in Delhi High Court, it has entered appearance. Therefore, the Orissa petition for deciding the same issue, namely, the correctness or otherwise of the Government decision taken by Opposite Party No. 1 on 13.1.2006 is barred. In the opinion of this Court, the ratio in Munni Bibi, rendered by the Privy Council is applicable to the facts of the present case.
21. The Learned Counsel for the Petitioner has urged that the decision in Delhi petition is not a final one as it is pending in appeal. This stand is not correct. A competent Court has decided the'question finally. The matter may be pending in appeal to which the Petitioner is a party and in which the Petitioner is represented. Therefore, it is open to the Petitioner to assail the said Judgment before the Appellate forum in Delhi. But the Petitioner cannot, by filing a separate Writ Petition before Orissa High Court, which is a concurrent forum, re-agitate the question of legality of the-said decision dated 13.1.2006.
22. The Learned Counsel for the Opposite Party No. 1 also relied on the-subsequent decision of the Privy Council in the case of Maung Sein Done v. Ma Pan Nyun and Ors. reported in AIR 1932 Privy Council 161 which affirmed the tests in Munni Bibi.
23. In coming to the said decision the Learned Judges in Maung Sein referred to the general principles of Res Judicata formulated by Wigram V.C. in Cottingham v. Earl of Shrewsbury reported in 67 ER 530.
24. In Gobind Chunder Koondoo and Ors. v. Taruck Chunder Bose and Ors. a Full Bench of Calcutta High Court, speaking through Chief Justice Sir Richard Garth I.L.R. Calcutta, Vol-3, 145 held at page 147-148:
When once it is made clear that the self-same right and title was substantially in issue for both the suits, the precise form in which the suit was brought, or the fact that the Plaintiff in the once case was the defendant in the other, becomes immaterial.
The Learned Full Bench held that the subsequent suit is barred by principles of Res Judicata. Those principles squarely apply to the facts in the present case. It cannot be disputed that both in the Delhi and Orissa petitions the issue is the same and the mere fact that in the previous Delhi petition, the Petitioner is a Respondent does not make any dffference.
25. Those three conditions formulated in Munni Bibi were also followed by the subsequent decision of the Privy Council in Syed Mohammad Saadat Ali Khan v. Mirza Wiquar Ali Beg and Ors. reported in A.I.R. (30) 1943 Privy Council 115 at page 120 and also by Justice Edgley, speaking for a Division Bench of Calcutta High Court in the case of Hafiz Mohammad Fateh Nasib v. Sir Swarup Chand Hukum Chand, Firm and Anr. reported in A.I.R. 1942 Calcutta 1 at page 16. A Learned Single Judge of Calcutta High Court, in Monjur Mandal v. Ahammad Mondal and Ors. after an exhaustive discussion of various decisions on that point, including the decisions cited above, held on the plea of Res Judicata that "a decision in a former suit cannot be avoided by a party merely on the plea that he was a 'pro forma' defendant therein and that no relief was there claimed against him" (page 158, para-16 of the report).
26. Similar views have been expressed by the Hon'ble Supreme Court in the case of Iftikhar Ahmed and Ors. v. Syed Meharban Ali and Ors. . At paragraph 13 of the Judgment, the Learned Judges expressly referred to the three tests formulated in Munni Bibi in order to lay down how a plea of Res Judicata should operate among the co-defendants. Subsequently, in Narayan Prabhu Venkateswara Prabhu v. Narayana Prabhu Krishna Prabhu , the Learned Judges of the Supreme Court apart from reiterating the aforesaid principles also added in paragraph 20 one further test by saying that the principles of Res Judicata one meant to prevent inconsistent decrees from coming into existence.
27. In Virudhunagar Steel Rolling Mills Ltd. v. The Government of Madras Five-Judge Constitution Bench of the Supreme Court held where a Writ Petition is dismissed on merits without notice to the other side and the order of dismissal is a speaking order, as it is in the instant case, such a decision would bar a petition under Article 32 of the Constitution on the same facts. In such a case, the only proper remedy to the person whose subsequent Writ Petition is barred is to come up in appeal from such a speaking order passed on the merits, even though the High Court may not have issued notice to him. In coming to the said conclusion the Learned Judges also considered the ratio in Daryao v. State of U.P. .
This decision in Virudhunagar clearly answers the objection of the Petitioner about applicability of the doctrine of Res Judicata to the Orissa petition.
28. In Mahboob Sahab v. Syed Ismail and Ors. , the Hon'ble Supreme Court apart from adopting the three tests formulated in Munni Bibi, has added a further test, namely, 'the co-defendants were necessary or proper parties in the former suit'. In the instant case, even that test has been fulfilled inasmuch as the Petitioner was impleaded in the Delhi petition. However the Learned Judges in Mahboob Sahab held that if the decision in the former case was obtained by fraud or collusion then it cannot constitute the bar of Res Judicata. In the instant case, no allegation has been made by the Petitioner herein that the decision of the Learned Single Judge of the Delhi High Court was obtained by fraud or collusion. Therefore, the principle of Mahboob Sahab also applies to the facts of this case. As late as in 2005, the Hon'ble Supreme Court in the case of Makhija Construction & Engineer (P) Ltd. v. Indore Development Authority and Ors. also applied the principles laid down in Munni Bibi.
29. Learned Counsel for the Petitioner while contesting the objection on the preliminary ground cited a number of Judgments which are now discussed herein below.
Reliance was placed on a Single Judge decision of the Madras High Court in the case of Kumarandy Kudumban and Ors. v. Venkatasubramania Aiyar and Ors. reported in AIR 1927 Madras 645. The facts in that case are that the Plaintiffs who are Pallars, sued on behalf of all the Pallars of four villages for a declaration of their exclusive right to the fishery in the Periakulam tank in Nenmani village. The defendants denied the Plaintiffs' right and contended that pangalis of the village alone are the owners of the fishery right. Both the lower Courts dismissed the Plaintiffs' suit as being barred by Res Judicata in view of the decision in O.S. No. 501 of 1907. In that case, the Learned Single Judge held that in order to attract the bar of Res Judicata the Court must enquire whether the question that was in issue in the previous case is an issue in the present suit between the same parties or between the parties under whom they or anyone of them claimed litigation. After posing the said question, Learned Judge answered the said question as follows:
In the former suit, the 2nd defendant set up the right of all the people of the villages to the fishery. In the present case Defendant 1 to 4 contend that the 80 pangalis alone are entitled to the fishery. The contention now put, forward in the present suit cannot be said to be the same contention that was put forward in the previous suit and there was no decision on the right of the inhabitants to the fishery in the former suit.
30. Therefore, the Court held that the decision in the former suit cannot operate as Res Judicata to bar the subsequent suit. In the instant case, the issue as pointed out above is the same in both the Delhi petition and the Orissa petition. Apart from that in the decision in Kumarandy Kudumban the suit in question was a declaratory one, filed in a representative capacity. So the ratio of the said decision on different facts is not attracted in the instant case. Learned Counsel also relied on the decision of the Supreme Court in the case of Shashibhushan Prasad Misra (dead) and Anr. v. Babuaji Rai (dead) by his legal representatives and others in order to contend that as soon as the appeal was filed from the decision of the Delhi High Court, the decision of the Learned Single Judge lost its finality and cannot operate as Res Judicata on the Orissa petition. In support of that contention, Learned Counsel has relied on paragraph-4 of Shashibhushan.
31. The facts in Shashibhushan were quite different and the issue was also different. In that case, the Plaintiff prayed for a declaration of right, title and possession in respect of certain land which it claimed to have obtained from the deity by way of settlement.
Due to change in the course of the river, a portion of the land of another village got annexed to the land settled with the Plaintiff. In that suit the proprietors of the other village were impleaded and the deity was joined as proforma defendant. The suit was dismissed. The 1st appeal also stood dismissed against the deity for non-payment of cost. The High court also dismissed the appeal against the contesting Respondents holdings that the issue between the deity and the contesting defendents as to whether the land in dispute appertain to village of the deity stood concluded against the deity and operated as Res Judicate between the deity and the contesting Respondents.
32. Reversing the said decision the Supreme Court held that the decision of the Trial Court will not operate as Res Judicata between the co-defendants because the deity was not a necessary party to the suit and no relief was claimed against it. The deity was therefore not a necessary party to the appeal. The Court also held that the Appellate Court should have given a decision on the merit of the case in the presence of the deity and there was no final decision against the deity on the question of title to the suit lands (para 5 of the Judgment).
33. In the background of these facts. The Apex Court held that the question whether the suit land appertains to Siripur Majrahia was not finally decided between the deity and the co-defendants and with the filing of the appeal by the Plaintiffs that question became open between the deity and the contesting defendants.
34. But in the instant case, the correctness or otherwise of the Order dated 13.1.2006 passed by the Opposite Party No. 1 was finally decided by the Delhi High Court in a proceeding between the SMC and Government of India (Opposite Party No. 1) and Government of India is obviously a necessary party. Therefore, the ratio in Shashibhushan given against a totally different factual background is not attracted here.
35. The decision in the case of Satyadhyan Ghosal and Ors. v. Smt. Deorajin Debi and Anr. cited by the Learned Counsel for the Petitioner doesnot support his contention, rather the opinion expressed in Satyadhayan goes against such contention. In paragraph 8 of tin, Learned Judges made it clear that the "principle of Res Judicata applies also as between two stages in the same litigation to this extent that a Court, whether the Trial Court or a higher Court having at an earlier stage decided a matter in one way will not allow the parties to reagitate the matter again at a subsequent stage of the same proceedings." The question which was posed by the Apex Court in satyadhyan was whether the same principle quoted above will apply in the case of an interlocutory order and the Court answered that question in negative in paragraph 13 at page 945-46 of the report.
36. Here the order in the Delhi petition is not an interlocutory one, but Judgment on merits. Therefore, this final Judgment on merits by a competent Court will bar the trial of another Writ Petition on the same issue at the instance of a co-Respondent in Delhi petition, before the concurrent jurisdiction of this Court.
37. The purport of the word "final Judgment" in the context of Res Judicata has been explained about more than 100 years ago by Lord Justice Cozens Hardy in Marchioness of Huntly v. Gaskell (1905) 2 Chancery Division 656 Delivering a unanimous, but a different opinion, the Learned Judge elucidated with remarkable clarity.
"Final' as applied to the Judgment on the trial on an action does not mean a Judgment not open to appeal, but merely "final" as opposed to an "interlocutory" Judgment. A Judgment on the trial of an action operates as an estoppel between the parties when bringing a subsequent action raising a contention which is in substance res judicata, and not the less so because that Judgment is liable to be reserved on appeal." (see page 667 of the report).
The following statement of Law in similar vein is in Halsbury's Laws of England, 4th Edition, Vol-16, para-1518.
A Judgment which purports finally to determine rights is none the less effective for the purposes of creating an estoppel because it is liable to be reversed on appeal, or because an appeal is pending.
Virtually the same opinion has been shared by the Apex Court in Satyadhyan Ghosal (supra).
38. The decision in the case of K. Muthuswami Gounder v. N. Palaniappa Gounder was about the width of Appellate Court's power under Order 41, Rule 33. The width of Appellate Court's power is not an issue in this ease. The Hon'ble Supreme Court pointed out that such power is discretionary and should be exercised in an appropriate case.
39. While discussing the width of the power under Order 41, Rule-33, the Court made an observation that when the matter had not attained finality the principle of Res Judicata cannot arise. There is no dispute about the said proposition. Similarly in the L.P.A., which has been filed before the Delhi High Court, the Judgment of the Learned Single Judge cannot operate as Res Judicata. But certainly that Judgment will operate as Res Judicata if another Writ Petition is filed raising the same issue by a co-Respondent before any other Court which is hearing the matter at the first stage. This is clear from the ratio in the case of Satyadhyan and also from the opinion of Cozens Hardy L.J. in Marchioness of Huntly (supra).
40. The next Judgment in the case of Sangram Singh v. Election Tribunal, Kotah and Anr. is one rendered in an election petition. While considering various provisions of the Code of Civil Procedure and The Representation of People Act, the Apex Court reiterated that procedural rules are designed to facilitate justice. These salutary principles expressed in general terms are never questioned. In fact Res Judicata is not a matter of procedure. It is always invoked as a sound judicial principle to streamline administration of justice.
41. The Judgment of the Learned Single Judge in the case of Noor Muhammad v. Mahmud Khan Fayaz Khan and Anr. reported in AIR 1930 Allahabad 699 was rendered in the context of an execution proceeding. The material facts in that case are that on 27.4.1922 the decree holder obtained a simple money decree. On 18.7.1924 he applied for a transfer of the decree for execution to Allahabad, but the said application was dismissed for default. On 23.5.1928 the decree holder certified to the Court a payment in part discharge of the decree. Then on 19.12.1928, the decree holder applied for transfer of his decree to Allahabad for the execution of the balance against the property of the Judgment-debtor in Allahabad. Upon receipt of the said application the munsarin of the Court expressed some doubts whether the application was barred by time, but the Learned Judge of the Small Causes Court passed an order holding that the same is within time and allowed the prayer of transfer. Those orders were made without notice to the Judgment debtor. Then the Judgment-debtor on 22.5.1929 filed an objection that the application was barred by limitation. The said objection was dismissed by the Learned Judge of the Small Causes Court holding that the same cannot be reopened subsequently in another Court. In that context of these facts the Learned Judge said that the matter decided behind the back of the Judgment-debtor, without notice to him, cannot be said to be Res Judicata. From the aforesaid facts, it is clear that opinion expressed in a Judgment must be appreciated in fact situation of the case. That is why the Hon'ble Supreme Court observed time and again that Judgments are not to be read as Statutes nor are they Euclid's theorems. They must be understood in the facts of that particular case.
42. Here in a totally different fact situation, the decision in Noor Mohammed has no application. The decision in the case of Dharam Dutt and Ors. v. Union of India and Ors. was not on the question of Res Judicata at all. The facts in that case were unusual as has been noted in paragraph 62, page 749 of the report. In that case the Court was considering the validity of the Learned Single Judge's Judgment rendered on 10.9.1990 and came to the conclusion that the said Judgment was not rendered on correct principles. In that context the Hon'ble Supreme Court observed that when an appeal is filed against such a Judgment, the finality of the Judgment is at large. An appeal was filed against the Judgment of the Learned Single Judge, but the Division Bench could not come to a decision in view of the lapse of the Ordinance itself. In that context, the Apex Court held that when the Ordinance itself had lapsed pending the appeal, the Judgment of the Learned single Judge about the legality of the Ordinance cannot bar the Supreme Court from deciding the validity of a fresh law on merit even if fresh law may contain some of the provisions of the lapsed Ordinance. The aforesaid ratio has nothing to do with the concept of Res Judicata as has been raised here. Therefore, none of the Judgments cited in the case by the Learned Counsel for the Petitioner actually address the issue.
43. This Court is of the opinion that if bar of Res Judicata is not applied to the present case in that event it would be open to all the pro forma Opposite Parties to file six different Writ Petitions assailing the Order dated 13.1.2006. This will result in multiplicity of proceedings and will bring about conflicting decisions and Opposite Party No. 1 and Opposite Party No. 5 will be repeatedly harassed on the same issue. Such a course of conduct is opposed to the very principles on which the concept of Res Judicata rests.
44. To put the records straight in this case, it may mentioned, when hearing was continuing in this case, Learned Counsel for the Petitioner filed an affidavit on 13.2.2007 affirmed by one Sri Sanjay Pratap describing himself as a Vice President of the Petitioner No. 1 company to the following effect:
That on 12.02.2007, the Petitioner No. 1 Company has filed a transfer petition in the Hon'ble Supreme Court of India which has been numbered as Transfer Petition No. 4485 of 2007, for hearing the present Writ Application and LPA No. 609 of 2006 analogously.
45. In the aforesaid stand of the Petitioner, this Court tentatively expressed an opinion that if the purpose of the said affidavit is to obtain an adjournment from this Court, the Court may adjourn the matter but at the same time the Court must consider the application for vacating the injunction filed by Opposite Party No. 5 and which it was pressing.
At that time the Learned Counsel for the Petitioner immediately filed on 13.2.2007 an affidavit affirmed by one Susanta Kishore Pati, describing himself as Executive Officer of the Petitioner No. 1 company to the effect that "the Petitioners undertake to withdraw the transfer petition No. 4485 of 2007 by filing an application for the same immediately."
After that this Court continued to hear the matter.
46. For the aforesaid reasons, this Court dismisses the Writ Petition No. 3455 of 2006 filed by M/s. Aahunik Metaliks Ltd. and another as barred by principles of Res Judicata and/or Constructive Res Judicata and principles analogous thereto.
47. In view of this Judgment, no decision is required to be given by this Court on the objection of the Opposite Party No. 5 about the lack of territorial jurisdiction of this Court to entertain this Writ Petition.
48. At the cost of repetition, this Court makes it clear that it has not pronounced on the merits of the contentions raised in the Writ Petition.
49. The Writ Petition is dismissed as such. All interim orders are vacated. There will be no order as to costs.
N. Prusty, J.
50. I agree