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PETITIONER: DARYAO AND OTHERS

       Vs.

RESPONDENT: THE STATE OF U. P. AND OTHERS(and Connected Petitions)

DATE OF JUDGMENT: 27/03/1961

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. SARKAR, A.K. WANCHOO, K.N. GUPTA, K.C. DAS AYYANGAR, N. RAJAGOPALA

CITATION:  1961 AIR 1457            1962 SCR  (1) 574  CITATOR INFO :  RF         1962 SC1621  (15,75,78,111,132)  R          1963 SC 996  (2)  R          1964 SC 782  (4,5)  D          1964 SC1013  (17)  RF         1965 SC1150  (7)  R          1965 SC1153  (5,27,53)  RF         1967 SC   1  (59)  RF         1967 SC1335  (4)  E          1968 SC 985  (4)  E          1968 SC1196  (4,5,6,7)  R          1970 SC 898  (3,4,36,37A,54,57)  RF         1974 SC 532  (11)  R          1975 SC 202  (16)  RF         1977 SC1680  (7)  R          1978 SC1283  (10)  F          1979 SC1328  (9,10)  RF         1981 SC 728  (5,7,8,9,10)  RF         1981 SC 960  (13)  RF         1981 SC2198  (13,33)  E&D        1987 SC  88  (8)  F          1987 SC 522  (24)  R          1988 SC1531  (126)  R          1990 SC  53  (15)  R          1990 SC1607  (35)  RF         1991 SC1309  (3)

ACT: Fundamental Right-Res judicata-Dismissal of writ Petition by High  Court-If  and when bar to petition in  Supreme  Court- Constitution of India, Arts. 32, 226.

HEADNOTE: Where  the High Court dismisses a writ petition  under  Art. 226  of  the Constitution after hearing the  matter  on  the merits on the ground that no fundamental right was proved or contravened  or that its contravention was  constitutionally justified, a subsequent petition to the Supreme Court  under Art.  32 of the Constitution on the same facts and  for  the same reliefs filed by the same party would be barred by  the

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general principle of res judicata. There  is no substance in the plea that the judgment of  the High  Court  cannot be treated as res  judicata  because  it cannot 575 under  Art.  226 entertain a petition under Art. 32  of  the Constitution. Citizens  have  ordinarily the right to invoke Art.  32  for appropriate relief if their fundamental rights are illegally on  unconstitutionally violated and it is incorrect  to  say that  Art. 32 merely gives this Court a discretionary  power as Art. 226 does to the High Court. Basheshar  Noth  v. Commissioner of  Income-tax,  Delhi  and Rajasthan, [1959] SUPP.  1 S.C.R. 528, referred to. Laxmanappa  Hanumantappa  jamkhandi v. The Union  of  India, [1955] 1 S.C.R. 769, and Diwan Bahadur Seth Gopal Das  Mohla v. The Union of India, [1955] 1 S.C.R. 773, considered. The  right  given to the citizens to move this  Court  under Art.  32  is  itself  a  fundamental  right  and  cannot  be circumscribed  or  curtailed  except  as  provided  by   the Constitution.   The expression "appropriate proceedings"  in Art. 32,(1), properly construed, must mean such  proceedings as may be appropriate to the nature of the order,  direction or  writ  the  petitioner  seeks from  this  Court  and  not appropriate to the nature of the case. Romesh  Thappar v. The State of Madras, [1950]  S.C.R.  594, referred to, Even  so  the general principle of res judicata,  which  has it.; foundation on considerations of public policy,  namely, (1)   that   binding  decisions  of  courts   of   competent jurisdiction  should be final and (2) that no person  should be  made to face the same kind of litigation twice over,  is not  a  mere  technical  rule  that  cannot  be  applied  to petitions under Art. 32 of the Constitution, Duchess  of Kingston’s case, 2 Smith Lead.  Cas.  13th  E-d. 644, referred to. The  binding character of judgments of courts  of  competent jurisdiction  is  in essence a part of the rule  of  law  on which  the administration of justice, so much emphasised  by the  Constitution,  is founded and a judgment  of  the  High Court  under  Art. 226 passed after a hearing on  merits  as aforesaid must bind the parties till set aside in appeal  as provided by the Constitution and cannot be circumvented by a petition under Art. 32. Pandit M. S. M. Sharma v. Dr. Shree Krishna Sinha, [1961]  1 S.C.R.  96  and  Raj Lakshmi Dasi v.  Banamali  Sen,  [1053] S.C.R. 154, relied on. Janardan Reddy v. The State of Hyderabad, [1951] S.C.R. 344, Syed  Qasion Rezvi v. The State of Hyderabad, [1953]  S.C.R. 589  and  Bhagubhai Dullabhabhai Bhandari  v.  The  District magistrate, Thana, [1956] S.C.R. 533, referred to. It was not correct to say that since remedies under Art. 226 and  Art.  32 were in the nature of alternate  remedies  the adoption of one could not bar the adoption of the other, Mussammat Gulab Koer v. Badshah Bahadur, (1909) 13 1197 held inapplicable. 576 Consequently,  (1)  where  the petition under  Art.  226  is considered on the merits as a contested matter and dismissed by   the High Court, the decision pronounced is  binding  on the  parties unless modified or reversed by appeal or  other appropriate  proceedings under the Constitution; (2)  Where the petition under Art. 226 is dismissed I not on the  merits but because of laches of the party applying  for the  writ or because an alternative remedy is  available  to

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him, such dismissal is no bar to a subsequent petition under Art.  32 except in cases where the facts found by  the  High Court may themselves be relevant even under Art. 32; (3)  Where  the writ petition is dismissed in limine and  an order is pronounced, whether or not such dismissal is a  bar must depend on the nature of the order; (4)  if  the  petition  is dismissed  in  limine  without  a speaking order, or as withdrawn, there can be no bar of  res judicata.

JUDGMENT: ORIGINAL  JURISDICTION:  Writ Petitions Nos. 66  and  67  of 1956, 8 of 1960, 77 of 1957, 15 of 1957 and 5 of 1958. Writ Petitions under Article 32 of the Constitution of India for the enforcement of Fundamental Rights. Naunit Lal, for the petitioner in W. Ps.  Nos. 66 and 67  of 1956. C.   P. Lal, for respondent No. 1 in W. Ps.  Nos. 66 and  67 of 1956. Bhawani Lal and P. C. Agarwal, for respondents Nos. 3a and 4 in W. Ps.  Nos. 66 and 67 of 1956. C.   B.  Agarwala and K. P. Gupta, for the petitioner in  W. P. No. 8 of 1960. Veda Vayasa and C. P. Lal, for respondent in W. P. No. 8  of 1960. Pritam  Singh Safeer, for the petitioner in W. P. No. 77  of 1957. S.   M. Sikri, Advocate-General, Punjab, N. S. Bindra and D. Gupta, for respondent No. 1 in W. P. No. 77 of 1957. Govind  Saran Singh, for respondent.  No. 2 in W. P. No.  77 of 1957. A.   N. Sinha and Raghunath, for petitioner in W. P. No.  15 of 1957. C.   K.  Daphtary, Solicitor-General for India, N. S  Bindra and R. H. Dhebar, for respondent in W.P. No 15 of 1957. 577 B.   R.  L.  lyengar, for the petitioner in W. P. No.  5  of 1958. C.   K. Daphtary, Solicitor-General for India, R. Gana-  Dar pathy Iyer and R. H. Dhebar, for the respondent in W.  P. No. 5 of 1958. 1961.  March 27.  The Judgment of the Court was delivered by GAJENDRAGADKAR,  J.-These  six writ  petitions  filed  Gaje, under  Art. 32 of the Constitution have been  placed  before the Court for final disposal in a group because though  they arise between separate parties and are unconnected with each other  a common question of law arises in all of them.   The opponents  in all these petitions have raised a  preliminary objection against the maintainability of the writ  petitions on  the ground that in each case the petitioners  had  moved the  High  Court for a similar writ under Art. 226  and  the High Court has rejected the said petitions.  The argument is that  the dismissal of a writ petition filed by a party  for obtaining an appropriate writ creates a bar of res  judicata against a similar petition filed in this Court under Art. 32 on  the  same or similar facts and praying for the  same  or similar writ.  The question as to whether such a bar of  res judicata  can  be pleaded against a petition filed  in  this Court  under  Art. 32 has been adverted to in  some  of  the reported decisions of this Court but it has not so far  been fully  considered  or  finally  decided;  and  that  is  the preliminary question for the decision of which the six  writ petitions have been placed together for disposal in a group.

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In  dealing with this group we will set out the facts  which give  rise  to Writ Petition No. 66 of 1956 and  decide  the general point raised for our decision.  Our decision in this writ petition will govern the other writ petitions as well. Petition  No.  66 of 1956 alleges that for  the  last  fifty years  the  petitioners and their ancestors  have  been  the tenants of the land described in Annexure A attached to  the petition and that respondents 3 to 5 are the proprietors  of the said land.  Owing to communal 73 578 disturbances  in  the Western District of Uttar  Pradesh  in 1947,  the petitioners had to leave their village  in  July, 1947; later in November, 1947, they returned  but they found that  during their temporary absence respondents 3 to 5  had entered in unlawful possession of the said land.  Since  the said respondents refused   to deliver possession of the land to  the  petitioners the petitioners had to file  suits  for ejectment  under  s.  180 of the U. P.  Tenancy  Act,  1939. These  suits were filed in June, 1948.  In the  trial  court the  petitioners succeeded and a decree was passed in  their favour.  The said decree. was confirmed in appeal which  was taken  by respondents 3 to 5 before the  learned  Additional Commissioner.   In  pursuance of the  appellate  decree  the petitioners obtained possession of the land through Court. Respondents 3 to 5 then preferred a second appeal before the Board  of  Revenue under s. 267 of the U.  P.  Tenancy  Act, 1939.   On  March  29, 1954, the Board  allowed  the  appeal preferred   by  respondents  3  to  5  and   dismissed   the petitioner’s  suit  with respect to the  land  described  in Annexure A, whereas the said respondents’ appeal with regard to  other lands were dismissed.  The decision of  the  Board was  based  on  the  ground that by  virtue  of  the  U.  P. Zamindary Abolition and Land Reforms (Amendment) Act XVI  of 1953  respondents  3  to  5  had  become  entitled  to   the possession of the land. Aggrieved  by this decision the petitioners moved  the  High Court  at Allahabad under Art. 226 of the  Constitution  for the  issue  of  a  writ of  certiorari  to  quash  the  said judgment.   Before the said petition was filed a Full  Bench of the Allahabad High Court had already interpreted s. 20 of the  U. P. Land Reforms Act as amended by Act XVI  of  1953. The  effect  of the said decision was  plainly  against  the petitioners’  contentions, and so the learned  advocate  who appeared  for the petitioners had no alternative but not  to press  the petition before the High Court.   In  consequence the  said  petition  was dismissed on March  29,  1955.   It appears that s. 20 has again been amended by s. 4 of Act  XX of 1954.  It is under these 579 circumstances  that the petitioners have filed  the  present petition under Art. 32 on March 14, 1956.  It is plain  that at  the  time when the present petition has been  filed  the period  of limitation prescribed for an   appeal  under Art. 136  against  the  dismissal of  the  petitioners’  petition before the- Allahabad High Court had already expired.  It is also  clear that the grounds of attack against the  decision of  the Board which the petitioners seek to raise  by  their present  petition are exactly the same as the grounds  which they had raised before the Allahabad High Court; and so  it is  urged  by the respondents that the present  petition  is barred by res judicata. Mr. Agarwala who addressed the principal arguments on behalf of   the  petitioners  in  this  group  contends  that   the ’principle of res judicata which is no more than a technical rule  similar

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 to the rule of estoppel  cannot  be  pleaded against  a petition which seeks to enforce  the  fundamental rights  guaranteed by the Constitution.  He argues that  the right  to move the Supreme Court for the enforcement of  the fundamental  rights  which is guaranteed by  Art.  32(1)  is itself  a  fundamental  right and  it  would  be  singularly inappropriate to whittle down the said fundamental right  by putting  it in the straight jacket of the technical rule  of res judicata.  On the other hand it is urged by the  learned Advocate-General  of Punjab, who led the  respondents,  that Art. 32(1) does not guarantee to every citizen the right  to make  a petition under the said article but it merely  gives him   the   right  to  move  this  Court   by appropriate proceedings,   and   he  contends   that   the   appropriate proceedings  in cases like the present would be  proceedings by way of an application for special leave under Art. 136 or by  way of appeal under the appropriate article of the  Con- stitution.   It  is also suggested that the  right  to  move which  is guaranteed by Art. 32(1) does not impose  on  this Court  an obligation to grant the relief, because as in  the case of Art. 226 so in the case of Art. 32 also the granting of leave is discretionary. In  support of the argument that it is in the discretion  of this Court to grant an appropriate relief or refuse to do so reliance has been placed on the observations 580 made in two reported decisions of this Court.  In Laxmanappa Hanumantappa Jamkhandi v. The Union of India & Another  (1), this Court held that as     there is a special  provision in Art. 265 of the Constitution that no tax shall be levied  or collected except by authority of law, cl.  1 of Art. 31 must be  regarded  as   concerned with  deprivation  of  property otherwise than by imposition or collection of tax and as the right conferred by Art. 265 is not a fundamental right  con- ferred  by  Part  III  of the  Constitution,  it  cannot  be enforced  under Art. 32.  In other words, the  decision  was that the petition filed before this Court under Art. 32  was not  maintainable;  but Mahajan, C.J.., Who  spoke  for  the Court,  proceeded to observer that "even otherwise  in  ’the peculiar circumstances that have arisen it would not be just and proper to direct the issue of any of the writs the issue of  which  is discretionary with this Court".   The  learned Chief Justice has also added that when this position was put to  Mr. Sen he fairly and rightly conceded that it  was  not possible  for  him to combat this position.   ’To  the  same effect  are the observations made by the same learned  Chief Justice  in Dewan Bahadur Seth Gopal Das Mohta v. The  Union of  India & Another (2).  It will, however, be noticed  that the  observations  made in both the cases are  obiter,  and, with  respect,  it  would be difficult to treat  them  as  a decision  on the question that the issue of  an  appropriate writ tinder Art. 32 is a matter of discretion, and that even if  the petitioner proves his fundamental rights  and  their unconstitutional  infringement this Court  nevertheless  can refused. to issue an appropriate writ in his favour Besides, the  subsequent decision of this Court in Basheshar Nath  v. The  Commissioner  of Income-tax, Delhi and,  Rajasthan  (3) tender  to  show that if a petitioner makes out  a  case  of illegal  contravention of his fundamental rights he  may  be entitled to claim an appropriate relief and a plea of waiver cannot  be  raised against his claim.  It is true  that  the question  of res judicata did not fall to be  considered  in that case but the tenor of all the judgments, which no doubt disclose a (1) [1955] 1 S.C.R. 760, 772, 773-  (2) [1955] 1 S.C.R. 773,

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776. (3) [1959] SUPP. 1 S.C.R. 528 581 difference  in  approach,  seems  to  emphasise  the   basic importance  of  the fundamental rights  guaranteed  by,  the Constitution  and the effect of the decision appears  to  be that  the  citizens are ordinarily entitled  to  appropriate relief under Art. 32 once it is shown that their fundamental rights  have been illegally or unconstitutionally  violated. Therefore,  we  are not impressed by the  argument  that  we should  deal with the question of the applicability  of  the rule  of  res judicata to a petition under Art.  32  on  the basis  that  like  Art. 226 Art. 32 itself  gives  merely  a discretionary  power  to the Court to grant  an  appropriate relief. The argument that Art. 32 does not confer upon a citizen the right to move this Court by an original petition but  merely gives  him  the right to move this Court by  an  appropriate proceeding  according to the nature of the case seems to  us to  be  unsound.   It is urged that in  a case  where  the petitioner has moved the High Court by a writ petition under Art.  226 all that he is entitled to do under Art. 32(1)  is to move this Court by an application for special leave under Art.  136;  that,  it is contended, is  the  effect  of  the expression "appropriate proceedings" used in Art. 32(1).  In our  opinion,  on  a fair construction  of  Art.  32(1)  the expression  "appropriate  proceedings"  has  reference,   to proceedings  which may be appropriate having regard  to  the nature of the order, direction or writ which the  petitioner seeks to obtain from this Court.  The appropriateness of the proceedings  would depend upon the particular writ or  order which  he claims and it is in that sense that the right  has been  conferred  on  the  citizen  to  move  this  Court  by appropriate  proceedings.   That is why we must  proceed  to deal  with the question of res judicata on the basis that  a fundamental right has been guaranteed to the citizen to move this Court by an original petition wherever his grievance is that his fundamental rights have been illegally contravened. There can be no doubt that the fundamental right  guaranteed by  Art.  32(1)  is  a  very  important  safeguard  for  the protection of the fundamental rights of the citizen, and  as a result of the said guarantee this 582 Court  has been entrusted with the solemn task of  upholding the fundamental rights of the citizens of this country.  The fundamental   rights  are  intended  not  only  to   protect individual’s  rights  but  they are  based  on  high  public policy.  Liberty of the individual and the protection of his fundamental  rights are the very essence of the  democratic way  of  life  adopted by the Constitution, and  it  is  the privilege and the duty of this Court to uphold those rights. This Court would naturally refuse to circumscribe them or to curtail them except as provided by the Constitution  itself. It  is because of this aspect of the matter that  in  Romesh Thappar  v. The State of Madras (1), in the very first  year after the Constitution came into force, this Court  rejected a  preliminary objection raised against the competence of  a petition filed under Art. 32 on the ground that as a  matter of  orderly  procedure  the  petitioner  should  first  have resorted to the High Court under Art. 226, and observed that "this Court in thus constituted the protector and  guarantor of the fundamental rights, and it cannot, consistently  with the  responsibility  so laid upon it,  refuse  to  entertain applications  seeking  protection against  infringements  of Ruch  rights".  Thus the right given to the citizen to  move

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this  Court  by  a  petition under  Art.  32  and  claim  an appropriate  writ against the unconstitutional  infringement of his fundamental rights itself is a matter of  fundamental right,  and  in  dealing with the  objection  based  on  the application  of the rule of res judicata this aspect of  the matter had no doubt to be borne in mind. But, is the rule of res judicata merely a technical rule  or is  it  based  on high public policy?  If the  rule  of  res judicata itself embodies a principle of public policy  which in  turn  is an essential part of the rule of law  then  the objection that the rule cannot be invoked where  fundamental rights are in question may lose much of its validity.   Now, the  rule of res judicata as indicated in s. 11 of the  Code of Civil Procedure has no doubt, some technical aspects, for instance  the rule of constructive res judicata may be  said to be technical; but the basis on which the said rule  rests is (1)  [1950] S.C.R. 594. 583 founded  on considerations of public policy.  It is  in  the interest  of  the  public at large that  a  finality  should attach  to  the binding decisions pronounced by  Courts’  of competent  jurisdiction,  and  it  is  also  in  the  public interest  that  individuals should not be vexed  twice  over with  the same kind of litigation.  If these two  principles form the foundation of the general rule of res judicata they cannot  be  treated as irrelevant or  inadmissible  even  in dealing  with  fundamental rights in petitions  filed  under Art. 32. In  considering the essential elements of res  judicata  one inevitably  harks  back to the judgment of  Sir  William  de Grey, (afterwards Lord Walsingham) in the leading Duchess of King8ton’s case (1).  Said Sir William de Grey,  (afterwards Lord  Walsingham)  "from the variety of  cases  relative  to judgments being given in evidence in civil suits, these  two deductions seem to follow as generally true: First, that the judgment  of  a court of concurrent  jurisdiction,  directly upon  the  point,  is  as a plea, a  bar,  or  as  evidence, conclusive  between the same parties, upon the same  matter, directly  in question in another court; Secondly,  that  the judgment of a court of exclusive jurisdiction, directly upon the  point,  is  in like manner  conclusive  upon  the  same matter,  between  the same parties, coming  incidentally  in question in another court for a different purpose".  As  has been observed by Halsbury, "the doctrine of res judicata  is not a technical doctrine applicable only to records; it is a fundamental doctrine of all courts that there must be an end of  litigation" (2 ). Halsbury also adds that  the  doctrine applies equally in all courts, and it is immaterial in  what court the former proceeding was taken, provided only that it was  a  court of competent jurisdiction, or  what  form  the proceeding took, provided it was really for the same  cause" (p. 187, paragraph 362).  "Res judicata", it is observed  in Corpus  Juris, "is a rule of universal law  pervading  every well regulated system of jurisprudence, and is put upon  two grounds  embodied in various maxims of the common  law;  the one, (1)  2 Smith Lead.  Cas. 13th Ed., pp. 644, 645. (2)  Halsbury’s  Laws of England, 3rd, Ed., Vol.  15,  para. 357, P. 185. 584 public policy and necessity, which makes it to the, interest of  the State that there should be an end to s litigation interest  republican  ut sit finis litium;  the  other,  the hardship on the individual that he should be vexed twice for

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the  same cause-nemo debet bis vexari pro eadem causa"  (1). In  this  sense  the recognised basis of  the  rule  of  res judicata  is  different  from that  of  technical  estoppel. "Estoppel  rests on equity able principles and res  judicata rests  on  maxims which are taken from the Roman  Law"  (2). Therefore,  the  argument that res judicata is  a  technical rule  and  as such is irrelevant in dealing  with  petitions under Art. 32 cannot be accepted. The  same question can be considered from another  point  of view.   If  a  judgment has been pronounced by  a  court  of competent  jurisdiction  it is binding between  the  parties unless  it  is reversed or modified by appeal,  revision  or other procedure prescribed by law.  Therefore, if a judgment has  been  pronounced by the High Court in a  writ  petition filed  by a party rejecting his prayer for the issue  of  an appropriate  writ  on  the  ground either  that  he  had  no fundamental  right  as pleaded by him or there has  been  no contravention of the right proved or that the  contravention is  justified  by the Constitution itself,  it  must  remain binding  between  the  parties  unless  it  is  attacked  by adopting  the  procedure  prescribed  by  the   Constitution itself.   The binding character of judgments  pronounced  by courts of competent jurisdiction is itself an essential part of  the  rule of law, and the rule of law obviously  is  the basis  of  the  administration  of  justice  on  which   the Constitution lays so much emphasis.  As Halsbury has observ- ed  "subject to appeal and to being amended or set  aside  a judgment  is  conclusive as between the  parties  and  their privies, and is conclusive evidence against all the world of its existence, date and legal consequences"(3).  Similar  is the  statement of the law in Corpus Juris: "the doctrine  of estoppel by judgment does not rest on any superior authority of  the court rendering the judgment, and a judgment of  one court is a bar to an (1) Corpus juris, VOl. 34, P 743-   (2) Ibid.  P. 745- (3)  Halsbury’s  Laws of England, 3rd Ed., VOl. 22, P-  780, paragraph 1660. 585 action  between the same parties for the same cause  in  the same  court  or  in another court, whether  the  latter  has concurrent  or other jurisdiction.  This rule is subject  to the  Limitation that the judgment in the former action  must have  been  rendered  by a court or  tribunal  of  competent jurisdiction"  (1).  "It is, however’ essential  that  there should  have  been  a judicial determination  of  rights  in controversy  with a final decision thereon" In other  words, an  original petition for a writ under Art. 32  cannot  take the place of an appeal against the order passed by the  High Court in the petition filed before it under Art. 226.  There can  be little doubt that the jurisdiction of this Court  to entertain  applications  under Art. 32  which  are  original cannot  be  confused or mistaken or used for  the  appellate jurisdiction  of this Court which alone can be  invoked  for correcting errors in the decisions of High Courts pronounced in  writ  petitions  under  Art.  226.   Thus,  on   general considerations of public policy there seems to be no  reason why   the  rule  of  res  judicata  should  be  treated   as inadmissible  or irrelevant in dealing with petitions  filed under  Art,.  32 of the Constitution.  It is true  that  the general  rule can be invoked only in cases where  a  dispute between  the  parties  has  been  referred  to  a  court  of competent jurisdiction, there has been a contest between the parties before the court, a fair opportunity has been  given to  both  of them to prove their case, and at  the  end  the court  has  pronounced  its judgment or  decision.   Such  a

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decision pronounced by a court of competent jurisdiction  is binding  between  the  parties  unless  it  is  modified  or reversed   by  adopting  a  procedure  prescribed   by   the Constitution.  In our opinion, therefore, the plea that  the general  rule  of res judicata should not be allowed  to  be invoked cannot be sustained. This  Court had occasion to consider the application of  the rule  of res judicata to a petition filed under Art.  32  in Pandit  M. S. M. Sharma v. Dr. Shree Krishna Sinha (3).   In that case the petitioner had moved this (1)  Corpus juris Secundum, VOI. 50 (judgments), p. 603. (2)  Ibid. p. 608. (3) [1961] 1 S.C.R. 96. 74 586 Court under Art. 32 and claimed an appropriate writ  against the Chairman and the Members of the Committee of  Privileges of  the State Legislative Assembly.  The said  petition  was dismissed.    Subsequently   he   filed   another   petition substantially  for the same relief and substantially on  the same  allegations.  One of the points which then  arose  for the decision of this Court was- whether the second  petition was  competent, and this Court held that it was not  because of  the rule of res judicata.  It is true that  the  earlier decision on which res judicata was pleaded was a decision of this  Court  in a petition filed under Art. 32 and  in  that sense the background of the dispute, was different,  because the  judgment on which the plea was based was a judgment  of this  Court  and  not  of any High  Court.   Even  so,  this decision affords assistance in determining the point  before us.   In  upholding  the plea of  res  judicata  this  Court observed  that  the  question  determined  by  the  previous decision  of  this Court cannot be reopened in  the  present case  and  must  govern the rights and  obligations  of  the parties  which  are substantially the same.  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.  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

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application  under Art. 226 is dismissed by the High  Court, and  we reserve our opinion on that question".  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). 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. The  next  question  to consider is  whether  it  makes  any difference to the application of this rule that the decision on  which the plea of res judicata is raised is  a  decision not  of  this  Court  but of a  High  Court  exercising  its jurisdiction  under Art. 226.  The argument is that  one  of the  essential requirements of s. 11 of the Code  of  Civil, Procedure  is that the Court which tries the first  suit  or proceeding should be competent (1) [1953] S.C.R. 589- (2) [1956] S.C.R. 533. 588 to  try the second suit or proceeding, and since  the   High Court  cannot,  entertain an application under Art.  32  its decision  cannot be treated as res judicata for the  purpose of  such  a  petition.   It is  doubtful  if  the  technical requirement prescribed by s. 11 as to the Competence of  the first Court to try the subsequent suit is an essential  part of  the general rule of res judicata; but assuming  that  it is, in substance even the said test is satisfied because the jurisdiction  of  the  High Court in  dealing  with  a  writ petition filed under Art,. 226 is substantially the same  as the   jurisdiction   of  this  Court  in   entertaining   an application tinder Art. 32.  The scope of the writs,  orders or directions which the High Court can issue in  appropriate cases under Art. 226 is concurrent with the scope of similar writs,  orders  or directions which may be  issued  by  this Court  under  Art.  32.  The cause of  action  for  the  two applications would be the same.  It is the assertion of  the existence   of   a  fundamental  right   and   its   illegal contravention  in both cases and the relief claimed in  both the  cases  is  also of the  same  character.   Article  226 confers  jurisdiction  oil  the High Court  to  entertain  a suitable writ petition, whereas Art. 32 provides for  moving this Court for a similar writ petition for the same purpose. Therefore, the argument that a petition under Art. 32 cannot be entertained by a High Court under Art. 226 is without any substance;  and  so the plea that the judgment of  the  High Court  cannot be treated as res judicata on the ground  that it  cannot  entertain  a  petition under  Art.  32  must  be rejected. It  is,  however, necessary to add that  in  exercising  its jurisdiction  under  Art. 226 the High Court  may  sometimes refuse  to issue an appropriate writ or order on the  ground that the party applying for the writ is guilty of laches and in  that  sense  the issue of a high  prerogative  writ  may

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reasonably  be  treated as a matter of discretion.   On  the other  hand,  the right granted to a citizen  to  move  this Court  by  appropriate proceedings under  Art.  32(1)  being itself a fundamental right this Court ordinarily may have to issue an appropriate writ or order provided it is shown that 589 the  petitioner  has  a fundamental  right  which  has  been illegally  or  unconstitutionally contravened.   It  is  not unlikely  that  if a petition is filed even  under  Art.  32 after a long lapse of time, considerations ma arise  whether rights in favour of third parties which may, have arisen  in the meanwhile could be allowed to be’ affected, and in  such a  case the effect of laches on the, part of the  petitioner or  of  his  acquirence  may have  to  be  considered;  but, ordinarily if a petitioner makes out a case for the issue of an appropriate writ or’ order he, would. be entitled to have such a writ or, order under Art. 32 and that may be said  to constitute a difference in the right conferred on a  citizen to  move the High Court under Art. 226 as distinct from  the right conferred on him to move this Court.  This  difference must inevitably mean that if -the High, Court has refused to exercise  its discretion on the ground of laches or  on  the ground that the party has an efficacious alternative  remedy available  to  him then of course the decision of  the  High Court  cannot generally be pleaded in support of the bar  of res judicata. if, however, the matter has been considered on the merits and the High Court has dismissed the petition for a writ on the ground that no fundamental right is proved  or its  breach  is  either not established or is  shown  to  be constitutionally  justified there is no reason why the  said decision  should  not  be  treated  as  a  bar  against  the competence of a subsequent petition filed by the same  party on the same facts and for the same reliefs under Art. 32. In this connection reliance has been placed on the fact that in  England habeas corpus petitions can be filed  one  after the other and the dismissal of one habeas corpus petition is never held to preclude the making of a subsequent  petition, for  the same reason.  In our opinion, there is  no  analogy between the petition for habeas corpus: and petitions  filed either  under  Art. 226 or under Art.  32.   For  historical reasons the writ for habeas corpus is treated as standing in -a  category  by itself; but, even with regard to  a  habeas corpus  petition  it has now been- held in  England  in  Re, Hastings (No. 2) (1) that "an applicant for a writ (1)  (1958) 3 All E.R. Q.B.D. 625. 590 of  habeas  corpus in a criminal matter who  has  once  been heard by a Divisional Court of the Queen’s Bench Division is not entitled to be heard a second time by another Divisional Court in the same Division, since a decision of a Divisional Court  of  the Queen’s Bench Division is equivalent  to  the decision  of  all the judges of the Division,  just  as  the decision of one of the old common law courts sitting in bank was the equivalent of the decision of all the judges of that Court."  Lord Parker, C. J., who delivered the  judgment  of the  Court, has elaborately examined the historical  genesis of the writ, several dicta pronounced by different judges in dealing  with successive writ petitions, and  has  concluded that  "the  authorities  cannot  be  said  to  support   the principle that except in vacation an applicant could go from judge to judge as opposed to going from court to court"  (p. 633), so that even in regard to a habeas corpus petition  it is now settled in England that an applicant cannot move  one Divisional  Court of the Queen’s Bench Division  after  ano- ther.  The-said decision has been subsequently applied in Re

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Hastings  (No.  3) (1) to a writ petition filed  for  habeas corpus in a, Divisional Court of tile Chancery Division.  In England,  technically  an  order passed on  a  petition  for habeas corpus is not regarded as a judgment and that  places the  petitions for habeas corpus in a class  by  themselves. Therefore  we  do  not think that  the  English  analogy  of several   habeas   corpus  applications   can   assist   the petitioners in the present case when they seek to resist the application  of res judicata to petitions filed  under  Art. 32.   Before we part with the topic we would, however,  like to add that we propose to express no opinion on the question as to whether repeated applications for habeas corpus  would be competent under our Constitution.  That is a matter  with which we are not concerned in the present proceedings. There  is  one  more  argument Which  still  remains  to  be considered.  It is urged that the remedies available to  the petitioners  to move the High Court under Art. 226 and  this Court under Art. 32 are (1)  [1959] 1 AR E.R. Ch.D. 698. 591 alternate remedies and so the adoption of one remedy  cannot bar  the  adoption  of the other.  These  remedies  are  not exclusive  but are cumulative and so no bar of res  judicata can  be pleaded when a party who has filed a petition  under Art.  226  seeks to invoke the jurisdiction  of  this  Court under  Art. 32.  In support of this contention reliance  has been  placed on the decision of the Calcutta High  Court  in Mussammat Gulab Koer v. Badshah Bahadur (1).  In that case a party  who  had unsuccessfully sought for the  review  of  a consent  order on the ground of fraud brought a suit  for  a similar relief and was met by a plea of res judicata.   This plea  was rejected by the Court on the ground that  the  two remedies  though co-existing were not inconsistent  so  that when a party aggrieved has had recourse first to one  remedy it cannot be precluded from subsequently taking recourse  to the  other.  In fact the judgment shows that the Court  took the  view  that  an  application  for  review  was  in   the circumstances  ail  inappropriate remedy and that  the  only remedy  available  to  the party was that  of  a  suit.   In dealing with the question of res judicata the Court examined the special features and conditions attaching to the  appli- cation  for  review,  the  provisions  with  regard  to  the finality of the orders passed in such review proceedings and the  limited nature of the right to appeal provided  against such  orders.   In the result the Court held  that  the  two remedies   cannot  be  regarded  as  parallel  and   equally efficacious and so no question of election of remedies arose in  those cases.  We do not think that this decision can  be read  as laying down a general proposition of law that  even in regard to alternate remedies if a party takes recourse to one  remedy  and a contest arising therefrom is tried  by  a court  of  competent  jurisdiction and all  points  of  con- troversy are settled the intervention of the decision of the court  would make no difference at all.  In such a case  the point to consider always would be what is the nature of  the decision pronounced by a Court of competent jurisdiction and what  is its effect.  Thus considered there can be no  doubt that if a writ petition filed by a party has been  dismissed on the merits (1)(1909) 1 3 C.W.N. 1197. 592 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

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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.

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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 75 594 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. In  Petition  No. 77 of 1957 the petitioner  has  stated  in paragraph  11  of his petition that he had  moved  the  High Court  of Punjab by a writ petition under Arts. 226 and  227 but  the same was dismissed in limine on July 14, 1957.   It is not clear from this statement whether any speaking  order was  passed  on the petition or not.  It  appears  that  the petitioner  further filed an application for review  of  the said  order under O. 47, r. 1 read with s. 151 of  the  Code but  the  said application was also heard and  dismissed  in limine  on  March 1, 1957.  It is also not clear  whether  a speaking order was passed on this application or not.   That is why, on the material as it stands it is not possible  for us  to  deal with the merits of the  preliminary  objection. We’ would accordingly direct that the petitioner should file the two orders of dismissal passed by the Punjab High Court. After the said orders are filed this petition may be  placed for  hearing before the Constitution Bench and the  question of  res  judicata  may be, considered in the  light  of  our decision in the present group. In  Petition No. 15 of 1957 initially we had a bare  recital that the writ petition made by the petitioner in the  Punjab High  Court had been dismissed.  Subsequently, however,  the said order itself has been 595 produced  and it appears that it gives no reasons  for  dis- missal.   Accordingly we must hold that the said order  does not  create a bar of res judicata and so the  petition  will have to be set down for hearing on the merits. In  Writ Petition No. 5 of 1958 the position is clear.   The petitioner   had  moved  the  Bombay  High  Court   for   an appropriate  writ challenging the order of the Collector  in respect of the land in question.  The contentions raised  by the  petitioner were examined in the light of the  rejoinder made  by  the Collector and substantially  the  petitioner’s case  was rejected.  It was held by the High Court that  the power  conferred on the State Government by s. 5(3)  of  the impugned  Act,  the  Bombay  Service  Inam  (Useful  to  the Community)  Abolition Act, 1953, was not arbitrary  nor  was its  exercise  in  this  particular  case  unreasonable,  or

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arbitrary.  The  High Court also held that the land  of  the petitioner  attracted  the relevant provisions of  the  said impugned statute.  Mr. Ayyangar ’for the petitioner realised the  difficulties in his way, and so he attempted  to  argue that the contentions which he wanted to raise in his present petition are put in a different form, and in support of this argument  he  has invited am attention to grounds 8  and  10 framed  by  him  in paragraph X of  the  petition.   We  are satisfied  that a change in the form of attack  against  the impugned statute would make no difference  to the true legal position  that the writ petition in the High Court  and  the present writ petition are directed against the same  statute and the grounds raised by the petitioner in that behalf  are substantially the same.  Therefore the decision of the  High Court  pronounced  by it on the merits of  the  petitioner’s writ  petition under Art. 226 is a bar to the making of  the present  petition, under Art. 32.  In the result  this  writ petition fails and is dismissed.  There would be no order as to costs.                             Petition dismissed. 596