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PETITIONER: COMMISSIONER OF INCOME TAX, BOMBAY

       Vs.

RESPONDENT: T.P. KUMARAN

DATE OF JUDGMENT:       16/08/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. G.B. PATTANAIK (J)

CITATION:  JT 1996 (8)    98

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      We have heard learned counsel for the parties.      This appeal by special leave arises against an order of the  Central  Administrative  Tribunal,  Ernakulam  made  on 16.8.1994 in  OA No.2026/93.  The admitted  position is that while the  respondent was  working as Income-tax officer, he was dismissed from service. He laid a suit against the order of dismissal.  The suit  came  to  be  decreed  and  he  was consequently reinstated. Since the arrears were not paid, he filed a  writ petition  in the High Court. The High Court by order dated  August 16,  1982 directed  the appellant to pay all the  arrears. That  order  became  final.  Consequently, arrears came  be paid.  Then  the  respondent  filed  an  OA claiming interest at 18% p.a. The Administrative Tribunal in the impugned  order directed  the payment of interest. Thus, this appeal by special leave.      The Tribunal  has committed  a gross  error of  law  in directing the  payment. The  claim is barred by constructive res judicata  under Section  11, Explanation  TV, CPC  which envisages that any matter which might and ought to have been made ground  of defence or attack in a former suit, shall be deemed to  have been  a matter directly and substantially in issue in a subsequent suit. Hence when the claim was made on earlier occasion,  he should  have or  might have sought and secured decree  for interest. He did not set and, therefore, it operates as res judicata. Even otherwise, when he filed a suit and  specifically did not claim the same, Order 2, Rule 2,  CPC   prohibits  the   petitioner  to  seek  the  remedy separately. In either event, the OA is not sustainable.      The appeal is accordingly allowed. No costs.