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1 - 10 of 18 (0.56 seconds)Article 226 in Constitution of India [Constitution]
Article 136 in Constitution of India [Constitution]
Section 11 in The Code of Civil Procedure, 1908 [Entire Act]
Article 265 in Constitution of India [Constitution]
Raj Lakshmi Dasi And Others vs Banamali Sen And Othersbholanath Sen ... on 27 October, 1952
In support of
this decision Sinha, C. J., who spoke for the Court,
referred to the earlier decision of this Court in Raj
Lakshmi Dasi v. Banamali Sen (1) and observed that the
principle underlying res judicata is applicable in respect
of a question which hag been raised and decided after full
contest, even though the first Tribunal which decided the
matter may have no jurisdiction to try the subsequent suit
and even though the subject-matter of the dispute was not
exactly the same in the two proceedings. We may add
incidentally that the Court which tried the earlier
proceedings in the case of Raj Lakshmi Dasi (1) was a Court
of exclusive jurisdiction. Thus this decision establishes
the principle that the rule of res judicata can be invoked
even against a petition filed under Art. 32.
We may at this stage refer to some of the earlier decisions
of this Court where the presedt problem was posed but not
finally or definitely answered.
Janardan Reddy And Others vs The State Of Hyderabad And ... on 16 March, 1951
In Janardan Reddy v. The
State of Hyderabad (2), it
(1) [1953] S.C.R. 154
(2) [1951] S.C.R. 344, 370-
587
appeared that against the decision of the High Court a
petition for specialleave had been filed but the, same
had been, rejectedand this was followed by petitions under
Art. 32.These petitions were in fact entertained though on
the merits they were dismissed, and in doing so it was
observed by Fazl Ali, J., who delivered the judgment of the
Court, that "it may, however, be observed that in this case
we have not considered it necessary to decide whether an
application under Art. 32 is maintainable after a similar
application under Art. 226 is dismissed by the High Court,
and we reserve our opinion on that question".
Syed Qasim Razvi vs The State Of Hyderabad And Others(And ... on 19 January, 1953
To the same
effect are the observations made by Mukherjea, J., as he
then was, in Syed Qasim Razvi v. The State of Hyderabad (1).
Bhagubhai Dullabhabhai Bhandari vs The District Magistrate, Thana& ... on 8 May, 1956
On the other hand, in Bhagubhai Dullabhabhai Bhandari v. The
District Magistrate, Thana (2) the decision of the High
Court was treated as binding between the parties when it was
observed by reference to the said proceedings that "but that
is a closed chapter so far as the Courts including this
Court also are concerned inasmuch as the petitioner's
conviction stands confirmed as a result of the refusal of
this Court to grant him special leave to appeal from the
judgment of the Bombay High Court". In other words, these
observations seem to suggest that the majority view was that
if an order of conviction and sentence passed by the High
Court would be binding on the convicted person and cannot be
assailed subsequently by him in a proceeding taken under
Art. 32 when it appeared that this Court had refused special
leave to the said convicted person to appeal against the
said order of conviction.
Golab Koer vs Badshah Bahadur on 14 April, 1909
by the High Court the,, judgment thus pronounced is binding
between the parties and it cannot be circumvented or by-
passed by his taking recourse to Art. 32 of the
Constitution. Therefore, we are not satisfied that the
ground of alternative remedies is well founded.
We, must now proceed to state our conclusion on the
preliminary objection raised by the respondents. We hold
that if a writ petition filed by a party under Art. 226 is
considered on the merits as &-contested matter, and is
dismissed the decision thus pronounced would continue to
bind the parties unless it is otherwise modified or reversed
by appeal or other appropriate proceedings permissible under
the Constitution. It would not be open to a party to ignore
the said judgment and move this Court under Art. 32 by an
original petition made on the same facts and for obtaining
the same or similar orders or writs. If the petition filed
in the High Court under Art. 226 is dismissed not on the
merits but because of the laches of the party applying for
the writ or because it is held that the party had an
alternative remedy available to it, then the dismissal of
the writ petition would not constitute a bar to a subsequent
petition under Art. 32 except in cases where and if the
facts thus found by the High Court may themselves be
relevant even under Art. 32. If a writ petition is
dismissed in limine and an order is pronounced in that
behalf, whether or not the dismissal would constitute a bar
would depend upon the nature of the order. If the order is
on the merits it would be a bar; if the order shows that the
dismissal was for the reason that the petitioner was guilty
of laches or that he had an alternative remedy it would not
be a bar, except in cases which we have already indicated.
If the petition is dismissed in limine without passing a
speaking order then such dismissal cannot be treated as
creating a bar of res judicata. It is true that, prima
facie, dismissal in limine even without passing a speaking
order in that behalf may strongly suggest that the Court
took the view that there was no substance in the petition at
all; but in the absence of a speaking order it would not be
easy to decide
593
what factors weighed in the mind of the Court and that makes
it difficult and unsafe to hold that such a summary
dismissal is a dismissal on merits and as such constitutes a
bar of res judicata against a similar The petition filed
under Art. 32. If the petition is dismissed as withdrawn it
cannot be a bar to a subsequent Gaj petition under Art. 32,
because in such a case there has been no decision on the
merits by the Court. We wish to make it clear that the
conclusions thus reached by us are confined only to the
point of res jadirata which has been argued as a preliminary
issue in these writ petitions and no other. It is in the
light of this decision that we will now proceed to examine
the position in the six petitions before us.
In Petition No. 66 of 1956 we have already seen that the
petition filed in the High Court was on the same allegations
and was for the same relief The petitioners had moved the
High Court to obtain a writ of certiorari to quash the
decision of the Revenue Board against them, and when the
matter was argued before the High Court in view of the
previous decisions of the High Court their learned counsel
did not press the petition. In other words, the points of
law raised by the petition were dismissed on the merits.
That being so, it is a clear case where the writ petition
has been dismissed on the merits, and so the dismissal of
the writ petition creates a bar against the competence of
the present petition under Art. 32. The position with
regard to the companion petition, No. 67 of 1956, is exactly
the same. In the result these two petitions fail and are
dismissed; there would be no order as to costs.
In Writ Petition No. 8 of 1960 the position is substantially
different. The previous petition for a writ filed by the
petitioner (No. 68 of 1952) in the Allahabad High Court was
withdrawn by his learned counsel and the High Court
therefore dismissed the said petition with the express
observation that the merits had not been considered by the
High Court in dismissing it and so no order is to costs was
passed. This order the writ petition withdrawn which was
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594
passed on February 3, 1955, cannot therefore support the
plea of res judicata against the present petition. It
appears that a co-lessee of the petitioner had also filed a
similar Writ Petition, No. 299 of 1958. On this writ
petition the High Court no doubt made certain observations
and findings but in the end it came to the conclusion that
a writ petition was not the proper proceeding for deciding
such old disputes about title and so it left the petitioner
to obtain a declaration about title from a competent civil
or revenue court in a regular suit. Thus it would be clear
that the dismissal of this writ petition (on 17-3-1958) also
cannot constitute a bar against the competence of the
present writ petition. The preliminary objection raised
against this writ petition is therefore rejected and it is
ordered that this writ petition be set down for hearing
before a Constitution Bench.