State Consumer Disputes Redressal Commission
Novelty Hyundai vs Rajinder Kumar And Ors. on 22 March, 2024
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
First Appeal No.984 of 2022
Date of institution : 16.11.2022
Reserved On : 12.03.2024
Date of decision : 22.03.2024
M/s Novelty Hyundai, Dalhousie Road, Mamoon Cantt. Chowk,
Pathakot, through Sh. Navtej Singh, Authorized Representative.
....Appellant/OP No.1
Versus
1.Rajinder Kumar son of Sh. Amar Nath, R/o H.No.552, Ram Sharnam Colony, Kahnuwan Road, Gurdaspur.
....Respondent/Complainant
2. Manager, The New India Assurance Co. Ltd., Branch Office (361602), G.T. Road, Mandi, Gurdaspur.
3. Managing Director, The New India Assurance Co. Ltd., Head Office, New India Assurance Building, 87, M.G. Road, Fort, Mumbai-400001.
....Respondents/OPs No.2 & 3
First Appeal under Section 41 of the Consumer Protection Act, 2019 against the order dated 09.09.2022 passed by the District Consumer Disputes Redressal Commission, Gurdaspur.
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President
1) Whether Reporters of the Newspapers may be allowed to see the Judgment? Yes/No
2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported in the Digest? Yes/No Present:-
For the Appellant : Sh. Nitin Thati, Advocate
For Respondent : Sh. Randeep Singh, Advocate
For Respondents No.2 & 3 : Sh. Vinod Chaudhari, Advocate First Appeal No.984 of 2022 2 JUSTICE DAYA CHAUDHARY, PRESIDENT Appellant/OP No.1 i.e. M/s Novelty Hyundai through its Authorized Representative has filed the present Appeal under Section 41 of the Consumer Protection Act, 2019 (hereinafter to be referred as 'the Act') against the order dated 09.09.2022 passed by the District Consumer Disputes Redressal Commission, Gurdaspur (in short, "the District Commission"), whereby the Complaint filed by Respondent No.1/Complainant had been partly allowed by issuing directions to the Appellant/OP No.1 to pay compensation of ₹6.5 lac i.e. 50% of the claimed amount to the Complainant along with interest at the rate of 6% per annum for the defaulted period of 2 years and 1 month and 7 days within a period of 45 days from the date of receipt of the certified copy of the order.
2. It would be apposite to mention here that hereinafter the parties will be referred, as had been arrayed before the District Commission.
3. Briefly, the facts of the case as made out by the Respondent/Complainant in the Complaint filed by him before the District Commission are that he was the owner of Hyundai car model I- 20 bearing Registration No.PB-06-S-0101, which was purchased by him from OP No.1 and was financed by Canara Bank, Gurdaspur. Said vehicle was insured with OP No.2-Insurance Company. It was further mentioned in the Complaint that the vehicle had met with an accident First Appeal No.984 of 2022 3 and was damaged. Intimation of accident was immediately given to OP No.2 and the Surveyor and Loss Assessor was appointed, who had visited the spot and asked the Complainant to take the vehicle to the workshop of OP No.1 for repairs. After inspection of the vehicle, an estimate was prepared for ₹70,000/- on 21.02.2015 towards the repair of the car. After repairs, the Complainant had approached OP No.1 on 13.03.2015 to take the delivery of the vehicle, who had prepared a bill of ₹2,30,000/-. However, OPs No.2 & 3 had failed to pay the said amount to OP No.1 and as such the vehicle was illegally withheld by OP No.1 w.e.f. 13.03.2015 to 21.04.2017.
4. The Complainant previously had filed Consumer Complaint No.230 of 2016 before the District Commission, which was decided on 08.12.2016 by issuing directions to the OPs to settle the impugned repairs bills etc. between themselves as per their inter-se arrangements and to hand over the fully repaired car to the Complainant without any invoice/charges and also to pay compensation of ₹5,000/- and litigation expenses of ₹3,000/- within a period of 15 days from the date of receipt of copy of the order, failing which the awarded amount was to carry interest at the rate of 9% per annum from the date of the order till its actual realization. The OPs had also filed the Appeals against the said order dated 08.12.2016 passed by the District Commission before this Commission. Both the Appeals were disposed off vide common order dated 06.07.2017 and FA First Appeal No.984 of 2022 4 No.197 of 2017 filed by OP No.2 was dismissed as withdrawn in view of the statement made by learned counsel for the Complainant about the settlement of the claim in the Execution Application. FA No.139 of 2017 filed by OP No.1 was also disposed off being not maintainable as the claim of the Complainant was settled. It was further mentioned that the vehicle of the Complainant had remained lying with OP No.1 even after repairs and it was not delivered to him on account of non- payment of full and final amount by OPs No.2 & 3 for a period of 2 years 1 month and 7 days. The Complainant had suffered loss of ₹1,500/- per day totaling ₹11,50,000/- due to fault of the OPs. The value of the vehicle had also been depreciated to the tune of ₹80,000/- and as such the Complainant had suffered total loss of ₹12,30,000/-.
5. The Complaint was filed with the prayer for issuance of directions to the OPs to pay the claim of ₹12,30,000/- as per the terms and conditions of the policy along with interest at the rate of 18% per annum from the date of accident (wrongly mentioned as 'theft') of the vehicle till its realization and also to pay compensation of ₹2 lac for causing mental agony and physical harassment to the Complainant .
6. Upon issuance of notices, the OPs had appeared before the District Commission through Counsel. OP No.1 had filed the written statement, wherein certain preliminary objections were raised stating therein that the Complaint filed by the Complainant was not maintainable, as he had tried to misguide and mislead the District First Appeal No.984 of 2022 5 Commission. The dispute between the parties had already been decided in favour of the Complainant in CC No.230 of 2016 and the Execution Application filed by him was also dismissed as withdrawn being fully satisfied. The second Complaint was filed on the same cause of action on which the earlier Complaint had been decided. As per the order dated 08.12.2016 passed by the District Commission in the earlier Complaint, OPs No.2 & 3 had not settled the claim of the Appellant/OP No.1 and the Appellant/OP No.1 had to file the Civil Suit against OPs No.2 & 3 for recovery of dues, which was pending in the Civil Court of Sh. Amandeep Singh, C.J.J.D., Gurdaspur. The Complainant had also filed a Civil Suit bearing No.CS/1421/2019 against the OPs before the Civil Court at Gurdaspur claiming the same relief but it was dismissed as withdrawn vide order dated 25.05.2022 as the Complainant had failed to deposit the Court Fee against the recovery of the claimed amount. It was further mentioned that after repairs of the vehicle, Invoice dated 18.03.2015 was prepared for an amount of ₹2,14,569/-, which was handed over to the Complainant as well as OPs No.2 & 3. OPs No.2 & 3 had paid only an amount of ₹1,25,840/- towards repairs of the vehicle and the remaining amount was to be paid by the Complainant. However, in-spite of repeated requests and reminders, the Complainant had failed to pay the remaining amount to OP No.1. A letter dated 10.05.2015 and reminder dated 21.04.2015 were sent to him but to no effect. The Complainant First Appeal No.984 of 2022 6 was informed that in case of failure to get the delivery of the vehicle, he would be liable to pay the car parking charges @ ₹250/- per day but he did not turn up to take the delivery of the vehicle or to pay the balance amount. Other averments as made in the Complaint were denied and it was prayed that the Complaint be dismissed.
7. OPs No.2 & 3 had filed separate reply, wherein certain preliminary objections were raised stating that the Complaint was not maintainable being barred by the principle of res judicata. Similar other pleas as raised by OP No.1 were reiterated and it was prayed that the Complaint be dismissed.
8. By considering the contents of the Complaint and reply thereof filed by the OPs, the Complaint was partly allowed by the District Commission vide impugned order dated 09.09.2022. The relevant portion of said order as mentioned in Para-16 is reproduced as under:
"16. Thus, we partly allow the present Complaint on the strength of our considered opinion and express that damages of Rs.6.5 Lacs i.e. 50% of the claimed amount in the Complainant 's favor (as compensation to losses suffered by him) with interest @ 6% PA for the defaulted period of Two years One month and Seven days will sufficiently meet the ends of justice. We further ORDER that the herein titled opposite party No.1 shall be liable to pay compliance to the orders within 45 days of receipt of certified copy of these orders."
9. Said order dated 09.09.2022 passed by the District Commission has been challenged by the Appellant/OP No.1 by way of filing the present Appeal by raising a number of arguments.
10. Mr. Nitin Thatai, learned counsel for the Appellant/OP No.1 has submitted that the District Commission had not properly First Appeal No.984 of 2022 7 appreciated the facts and circumstances of the case while passing the impugned order. The impugned order is based on conjectures and surmises. The District Commission had failed to consider a material fact that the Complainant had twisted the facts with malafide intention by concealing certain facts. The Complaint filed by the Complainant was barred by the principle of res judicata, as the relief sought in the Complaint had already been sought and decided vide order dated 08.12.2016 passed by the District Commission in the earlier Complaint filed by him. In the second Complaint, the Complainant had sought the same relief of compensation for the period during which the vehicle was parked with the Appellant/OP No.1. The second Complaint on the same cause of action was not maintainable. The Complainant had not filed any Appeal to challenge the order dated 08.12.2016 and as such said order dated 08.12.2016 had attained finality. Learned counsel has also submitted that the Complainant had also filed a Civil Suit No.1421 of 2019 for recovery against the Appellant/OP No.1 but it was dismissed as withdrawn vide order dated 25.05.2022 and no liberty was granted to file/initiate any case/proceedings on the same cause of action. Learned counsel has further submitted that second Complaint was also barred by limitation, as the Complainant had claimed the compensation for the period w.e.f. the year 2015 to 2017, during which the vehicle had remained parked with OP No.1, whereas the 2nd Complaint was filed on 31.05.2022. Learned counsel has also First Appeal No.984 of 2022 8 submitted that the second Complaint was decided vide impugned order dated 09.09.2022 and the urgency in deciding the Complaint had created a shadow of doubt upon the functioning of the District Commission, as a number of other Complaints were pending there, which are 5-6 years old. It has also been submitted that the Complainant had also not disclosed about the filing of other Complaint i.e. CC No.423 of 2013 against the OPs, wherein the Complainant was directed to pay the repair bill of ₹1,88,940/- as per invoice dated 22.10.2013 and he agreed to pay the said amount towards the repairs charges along with other charges and to take the delivery of the vehicle. Thereafter, he had sought permission to withdraw the said Complaint in view of the statements made by the parties and as such the Complaint was dismissed vide order dated 22.10.2013. Learned counsel has further submitted that the District Commission had also failed to consider that the receipts for claiming the amount of ₹13 lac were not produced on record by the Complainant and had awarded ₹6,50,000/- by the District Commission without any evidence and for the reasons best known to the District Commission. At the end, learned counsel has also submitted that the District Commission had not properly appreciated all these facts and circumstances and impugned order is liable to be set aside. Learned counsel has relied upon the following judgments in support of his contentions:
i) M. Nagabhushana v. State of Karnataka & Ors. 2011 (1) SCC (Civil) 733 (SC); and First Appeal No.984 of 2022 9
ii) State Bank of India v. M/s B.S. Agricultural Industries 2009 (5) SCC 121 (SC).
11. Mr. Randeep Singh, learned counsel for Respondent No.1/Complainant has submitted that the order passed by the District Commission is based on proper appreciation of the evidence produced by the parties on record. Learned counsel has further submitted that the second Complaint filed by the Complainant was not hit by the principle of res judicata, as the Civil Suit filed by the Complainant was dismissed on technical grounds and not on merits. The car was not delivered by OP No.1 for a considerable long period and as such OP No.1 was liable to pay compensation for illegally withholding the car for a period of more than 2 years without any sufficient reason. The order passed by the District Commission is well reasoned and the Appeal is liable to be dismissed. Learned counsel has relied upon the following judgments in support of his contentions:
i) Om Parkash Gupta v. The Chief General Manager, MTNL 1993 (1) CPJ 39 (NC); and
ii) Mohindra Cold Storage v. Punjab State Electricity Board & Anr. 1999 (1) CPJ 250 (Punjab State Commission).
12. Mr. Vinod Chaudhari, learned counsel for Respondents No.2 & 3/OPs No.2 & 3 has submitted that the earlier Complaint filed by the Complainant was disposed off by the District Commission and the Appeals filed by the OPs against the said order were also disposed off vide order dated 08.07.2017. The second Complaint filed by the First Appeal No.984 of 2022 10 Complainant was not maintainable being hit by the principle of res judicata and as such the impugned order is liable to be set aside.
13. We have heard the arguments raised by learned counsel for the parties. We have also carefully perused the impugned order passed by the District Commission and all other relevant documents available on the file.
14. Facts regarding filing of the Complaint by the Complainant before the District Commission, reply thereto filed by the OPs, partly allowing of said Complaint and thereafter filing of the present Appeal by the Appellant/OP No.1 are not in dispute.
15. Admittedly, the Complainant was the owner of Hyundai car Model I-20 bearing Registration No.PB-06-S-0101, which was purchased through finance from Canara Bank, Gurdaspur. Said vehicle was insured with OP No.2-New India Assurance Company Ltd. Said car had met with an accident and it was damaged. The Surveyor and Loss Assessor as appointed by the Insurance Company had visited the spot and the vehicle was taken to the workshop of OP No.1 for repair. The estimated cost of repair was assessed to be ₹70,000/- on 21.02.2015. The Job Sheet was prepared and the vehicle was to be delivered on 13.03.2015. However, the amount was not released to the Complainant and thereafter the Complainant had approached the District Commission by way of filing the Complaint i.e. Consumer Complaint No.230 of 2016, which was decided on 08.12.2016 by First Appeal No.984 of 2022 11 issuing directions to the OPs to settle the claim towards repairs bills etc. between themselves as per their inter-se arrangements and to hand over the fully repaired car to the Complainant without any invoice/charges and also to pay compensation of ₹5,000/- and litigation expenses of ₹3,000/- within a period of 15 days from the date of receipt of copy of the order, failing which the awarded amount was to carry interest at the rate of 9% per annum from the date of the order till its actual realization. Thereafter, the Complainant had filed Execution Application before the District Commission for compliance of the order dated 08.12.2016, which was dismissed as withdrawn being fully satisfied vide order dated 19.04.2017 (Annexure A-4), which is reproduced as under:
" Applicant has made a statement that he has received a cheque bearing No.073271 dated 17.04.2017 amounting to Rs.4,200/- drawn on Axis Bank Ltd., Pathankot from the Respondents No.2 & 3 and he has also received car in proper condition from the Respondent No.1. He has further stated that in view of this, he does not want to pursue with this execution application further and withdraw the same being fully satisfied.
In view of the statement made by the applicant, the present execution application is hereby dismissed as withdrawn being fully satisfied.
File be consigned."
16. It is also relevant to mention that against the order passed by the District Commission, both the OPs had filed the Appeals before this Commission, which were disposed off vide common order dated 06.07.2017. F.A. No.197 of 2017 filed by OP No.2 was dismissed as withdrawn in view of the statement made by learned counsel for the Complainant about the settlement of the claim in the Execution First Appeal No.984 of 2022 12 Application. F.A. No.139 of 2017 filed by OP No.1 was also disposed off being not maintainable as the claim of the Complainant was settled. The relevant portion of common order dated 06.07.2017 (Annexure A-
5) passed by this Commission in the said Appeals as mentioned in Paras-10 & 11 is reproduced as under:
"FIRST APPEAL NO. 197 OF 2017
10. During the pendency of the Appeal, counsel for Respondent No. 1/Complainant Mr. Dinesh Mahajan, Advocate made a statement that his claim has been satisfied in the execution proceedings. In view of the statement made by the counsel for Respondent No. 1/Complainant, counsel for the Appellant Mr. Vinod Gupta, Advocate made a statement to withdraw the Appeal as the claim of the Complainant has been settled in the execution proceedings. Accordingly, this Appeal is dismissed as withdrawn.
FIRST APPEAL NO. 139 OF 2017
11. This Appeal is by Op No. 1 for balance payment as repair charges. As per the order passed by the District Forum, OPs have been directed to settle the repair bill between them because the vehicle was comprehensively insured with OP Nos. 2 & 3. Once the claim of the Complainant has been satisfied in the execution proceedings, then Appeal filed by this Appellant/OP No. 1 cannot proceed. In case any amount according to them is outstanding against Op Nos. 2 & 3, they can file recovery suit or any other proceedings, as advised to them. Accordingly, the Appeal filed by OP No. 1 is not maintainable in view of the claim of the Complainant stand settled at the end of OP Nos. 2 & 3.
17. Thereafter, the Complainant had filed Civil Suit No.1421 of 2019 before the Civil Court at Gurdaspur for recovery of ₹12,30,000/-
from the OPs. Said Civil Suit was dismissed as withdrawn vide order dated 25.05.2022 (Annexure A-7) in view of the statement made by the Complainant that he did not want to pursue with the Civil Suit due to some technical ground. However, no liberty was granted to the Complainant to file/initiate any other proceedings before any First Appeal No.984 of 2022 13 Court. The order dated 25.05.2022 passed by the Civil Court is reproduced as under:
" Ld. Counsel for plaintiff suffered statement that he does not want to proceed with the present case, same may kindly be dismissed as withdrawn due to some technical ground.
In view of the above referred statement, the present suit is dismissed as withdrawn. File be consigned to Record Room, after due compliance."
18. Thereafter, the appellant/OP No.1 had filed a Civil Suit (Annexure A-8) before the Civil Court at Gurdaspur against the Complainant and the Insurance Company for recovery of ₹1,16,029/-, which is still pending.
19. Ultimately, the Complainant had filed the 2nd Complaint i.e. CC No.79 of 2022 before the District Commission on 31.05.2022 i.e. after a period of 5 years and 9 months from the date of order dated 08.12.2016 passed in the earlier Complaint and that too when it was decided on merits and the claim of the Complainant was settled and also complied with in the Execution Application filed by him before the District Commission. This fact is evident from the order dated 06.07.2017 (Annexure A-5) passed by this Commission while disposing off the Appeals filed by the OPs against the order dated 08.12.2016 passed by the District Commission in the previous Complaint.
20. Once the previous Complaint filed by the Complainant, wherein same vehicle, same accident and same issue was involved, was decided by the District Commission on merits and the claim of the First Appeal No.984 of 2022 14 Complainant was settled/complied with in the Execution Application, the second Complaint filed by the Complainant on the same cause of action was hit by the principle of Res judicata. The Civil Suit filed by the Complainant was also dismissed as withdrawn and no liberty was granted/sought to file any case in any Court.
21. Section 11 of the Code of Civil Procedure (CPC) deals with the principle of Res judicata, which is reproduced as under:
"No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court."
22. The Hon'ble Supreme Court in the case of M. Nagabhushana (supra) has elaborately discussed the principle of res judicata and constructive res judicata. The relevant portion of said judgment is reproduced as under:
"12. We find that disregarding the aforesaid clear finding of this Court, the Appellant, on identical issues, further filed a new writ petition out of which the present Appeal arises. That writ petition, as noted above, was rejected both by the learned Single Judge and by the Division Bench in clear terms.
13. It is obvious that such a litigative adventure by the present Appellant is clearly against the principles of Res Judicata as well as principles of Constructive Res Judicata and principles analogous thereto.
14. The principles of Res Judicata are of universal application as it is based on two age old principles, namely, 'interest reipublicae ut sit finis litium' which means that it is in the interest of the State that there should be an end to litigation and the other principle is 'nemo debet his ve ari, si constet curiae quod sit pro un aet eademn cause' meaning thereby that no one ought to be vexed twice in a litigation if First Appeal No.984 of 2022 15 it appears to the Court that it is for one and the same cause. This doctrine of Res Judicata is common to all civilized system of jurisprudence to the extent that a judgment after a proper trial by a Court of competent jurisdiction should be regarded as final and conclusive determination of the questions litigated and should for ever set the controversy at rest.
15. That principle of finality of litigation is based on high principle of public policy. In the absence of such a principle great oppression might result under the colour and pretence of law in as much as there will be no end of litigation and a rich and malicious litigant will succeed in infinitely vexing his opponent by repetitive suits and actions. This may compel the weaker party to relinquish his right. The doctrine of Res Judicata has been evolved to prevent such an anarchy. That is why it is perceived that the plea of Res Judicata is not a technical doctrine but a fundamental principle which sustains the Rule of Law in ensuring finality in litigation. This principle seeks to promote honesty and a fair administration of justice and to prevent abuse in the matter of accessing Court for agitating on issues which have become final between the parties.
16. Justice Tek Chand delivering the unanimous Full Bench decision in the case of Mussammat Lachhmi Vs. Mussammat Bhulli (ILR Lahore Vol.VIII 384) traced the history of this doctrine both in Hindu and Mohammedan jurisprudence as follows:-
"In the Mitakshra (Book II, Chap. I, Section V, verse 5) one of the four kinds of effective answers to a suit is "a plea by former judgment" and in verse 10, Katyayana is quoted as laying down that "one against whom a judgment had formerly been given, if he bring forward the matter again, must be answered by a plea of Purva Nyaya or former judgment" (Macnaughten and Colebrooke's translation, page 22).
The doctrine, however, seems to have been recognized much earlier in Hindu Jurisprudence, judging from the fact that both the Smriti Chandrika (Mysore Edition, pages 97-98) and the Virmitrodaya (Vidya-Sagar Edition, page 77) base the defence of Prang Nyaya (=former decision) on the following text of the ancient lawgiver Harita, who is believed by some Orientalists to have flourished in the 9th Century B.C. and whose Smriti is now extant only in fragments:-
"The plaintiff should be nonsuited if the defendant avers: 'in this very affair, there was litigation between him and myself previously,' and it is found that the plaintiff had lost his case".
There are texts of Prasara (Bengal Asiatic Society Edition, page
56) and of the Mayukha (Kane's Edition, page 15) to the same effect.
Among Muhammadan law-givers similar effect was given to the plea of "Niza-i-munfasla" or "Amar Mania taqrir mukhalif." Under Roman Law, as administered by the Proetors' Courts, a defendant could repel the plaintiff's claim by means of 'exceptio rei judicatoe" or plea of former judgment. The subject received considerable attention at the hands of Ruman jurists and as First Appeal No.984 of 2022 16 stated in Roby's Roman Private Law (Vol.II, page 338) the general principle recognised was that "one suit and one decision was enough for any single dispute" and that "a matter once brought to trial should not be tried except, of course, by way of Appeal". (Page 391-392 of the report)
17. The learned Judge also noted that in British India the rule of Res Judicata was first introduced by Section 16 of the Bengal Regulation, III of 1973 which prohibited the Zilla and City Courts from entertaining any cause which, from the production of a former decree or the record of the Court, appears to have been heard and determined by any Judge or any Superintendent of a Court having competent jurisdiction. The learned Judge found that the earliest legislative attempt at codification of the law on the subject was made in 1859, when the first Civil Procedure Code was enacted, whereunder Section 2 of the Code barred every Court from taking cognizance of suits which, on the same cause of action, have been heard and determined by a Court of competent jurisdiction. The learned Judge opined, and in our view rightly, that this was partial recognition of the English rule in so far as it embodied the principles relating to Estoppel by judgment or Estopel by record.
18. Thereafter, when the Code was again revised in 1877, the operation of the rule was extended in Section 13 and the bar was no longer confined to the retrial of a dispute relating to the same cause of action but the prohibition was extended against reagitating an issue, which had been heard and finally decided between the same parties in a former suit by a competent court. The learned Judge also noted that before the principle assumed its present form in Section 11 of the Code of 1908, the Section was expanded twice. However, the learned Judge noted that Section 11 is not exhaustive of the law on the subject.
19. It is nobody's case that the Appellant did not know the contents of FWA. From this it follows that it was open to the Appellant to question, in the previous proceeding filed by it, that his land which was acquired was not included in the FWA. No reasonable explanation was offered by the Appellant to indicate why he had not raised this issue. Therefore, in our judgment, such an issue cannot be raised in this proceeding in view of the doctrine of Constructive Res Judicata.
20. It may be noted in this context that while applying the principles of Res Judicata the Court should not be hampered by any technical rules of interpretation. It has been very categorically opined by Sir Lawrence Jenkins that "the application of the rule by Courts in India should be influenced by no technical considerations of form but by matter of substance within the limits allowed by law". [See Sheoparsan Singh Vs. Rammanandan Prasad Singh, (1916) 1 I.L.R. 43 Cal. 694 at page 706 (P.C.)].
21. Therefore, any proceeding which has been initiated in breach of the principle of Res Judicata is prima-facie a proceeding which has been initiated in abuse of the process of Court.
First Appeal No.984 of 2022 17
22. A Constitution Bench of this Court in Devilal Modi Vs. Sales Tax Officer, Ratlam & Ors. - AIR 1965 SC 1150, has explained this principle in very clear terms:
"But the question as to whether a citizen should be allowed to challenge the validity of the same order by successive petitions under Art. 226, cannot be answered merely in the light of the significance and importance of the citizens' fundamental rights. The general principle underlying the doctrine of res judicata is ultimately based on considerations of public policy. One important consideration of public policy is that the decisions pronounced by courts of competent jurisdiction should be final, unless they are modified or reversed by appellate authorities; and the other principle is that no one should be made to face the same kind of litigation twice over, because such a process would be contrary to considerations of fair play and justice, vide : Daryao Vs. State of U.P., 1962-1 SCR 575; (AIR 1961 SC 1457)."
23. This Court in All India Manufacturers Organisation (supra) explained in clear terms that principle behind the doctrine of Res Judicata is to prevent an abuse of the process of Court.
24. In explaining the said principle the Bench in All India Manufacturers Organisation (supra) relied on the following formulation of Lord Justice Somervell in Greenhalgh Vs. Mallard - (1947) 2 All ER 255 (CA):
"I think that on the authorities to which I will refer it would be accurate to say that res judicata for this purpose is not confined to the issues which the court is actually asked to decide, but that it covers issues or facts which are so clearly part of the subject-matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them."
25. The Bench also noted that the judgment of the Court of Appeal in "Greenhalgh" was approved by this Court in State of U.P. Vs. Nawab Hussain - (1977) 2 SCC 806 at page 809, para 4.
26. Following all these principles a Constitution Bench of this Court in Direct Recruit Class II Engg. Officers' Assn. Vs. State of Maharashtra - (1990) 2 SCC 715 laid down the following principle:
"......an adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had decided as incidental to or essentially connected with subject matter of the litigation and every matter coming into the legitimate purview of the original action both in respect of the matters of claim and defence. Thus, the principle of constructive res judicata underlying Explanation IV of Section 11 of the Code of Civil Procedure was applied to First Appeal No.984 of 2022 18 writ case. We, accordingly hold that the writ case is fit to be dismissed on the ground of res judicata."
27. In view of such authoritative pronouncement of the Constitution Bench of this Court, there can be no doubt that the principles of Constructive Res Judicata, as explained in explanation IV to Section 11 of the CPC, are also applicable to writ petitions.
28. Thus, the attempt to re-argue the case which has been finally decided by the Court of last resort is a clear abuse of process of the Court, regardless of the principles of Res Judicata, as has been held by this Court in K.K. Modi Vs. K.N. Modi and Ors. - (1998) 3 SCC
573. In paragraph 44 of the report, this principle has been very lucidly discussed by this Court and the relevant portions whereof are extracted below:
"One of the examples cited as an abuse of the process of the court is relitigation. It is an abuse of the process of the court and contrary to justice and public policy for a party to relitigate the same issue which has already been tried and decided earlier against him. The reagitation may or may not be barred as res judicata..."
23. In view of the law as laid down by the Hon'ble Supreme Court in the aforesaid judgment, the principle of res judicata is not only confined to the issues decided earlier but also the issues or facts, which had been clearly part of the subject-matter of the previous litigation and could have been raised earlier, are covered thereunder. Filing of the 2nd Complaint on the same cause of action is an abuse of the process of the Court. In case the Court fails to notice such like legal and material aspects, there would not be any end of the litigation. Therefore, the 2nd Complaint filed by the Complainant is clearly barred by the principle of Res judicata and Constructive Res judicata as discussed above.
24. Further, the 2nd Complaint filed by the Complainant was also barred by limitation, as it was filed before the District Commission on 31.05.2022 i.e. after a period of 5 years and 9 months First Appeal No.984 of 2022 19 from the date of order dated 08.12.2016 passed in the previous Complaint. As per Section 69 of the Act, the complaint can be filed within a period of 2 years from the date of accrual of the cause of action. The Hon'ble Supreme Court in the case of State Bank of India (supra) had also held that the Complaint was time barred, as it was filed after a period of 3 years from the date of accrual of the cause of action, whereas as per the provisions of the Act, it could have been filed within period of 2 years. The Civil Suit filed by the Complainant on the same cause of was also dismissed as withdrawn vide order dated 25.05.2022 and no liberty to initiate/file any other suit/Complaint was sought/granted. Further, the Civil Suit filed by the Appellant on the same cause of action is/was still pending and the matter was subjudice before the Civil Court. Moreover, the Complainant had also not filed any Appeal to challenge the order dated 08.12.2016 passed in the previous/earlier complaint and as such said order dated 08.12.2016 had attained finality.
25. In view of the facts and circumstances as well as the law laid down by the Hon'ble Supreme Court, it is apparent that the 2nd Complaint filed by the Complainant was clearly barred by the principle of Res judicata and Constructive Res judicata and it was also barred by limitation. However, the District Commission had failed to take into consideration all these facts and circumstances as well as the law as applicable on the issue involved in the case and had passed First Appeal No.984 of 2022 20 the impugned order without any application of mind. The impugned order is based on conjectures and surmises and the same is not sustainable in the eyes of law. The judgments relied upon by learned counsel for Respondent No.1/Complainant are distinguishable and are not applicable to the facts and circumstances of the present case.
26. Accordingly, finding merit in the contentions raised by learned counsel for the Appellant/OP No.1, the Appeal is allowed and the impugned order dated 09.09.2022 passed by the District Commission is set aside. Consequently, the Complaint filed by Respondent No.1/Complainant is dismissed.
27. Since the main case has been disposed off, so all the pending Miscellaneous Applications, if any, are accordingly disposed off.
28. The Appellant had deposited a sum of ₹3,66,100/- at the time of filing of the Appeal. Said amount, along with interest which has accrued thereon, if any, shall be remitted by the Registry to Appellant by way of a crossed cheque/demand draft after the expiry of limitation period in accordance with law.
29. The Appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE DAYA CHAUDHARY) PRESIDENT March 22, 2024.
(Gurmeet S)