14 December 1964
Supreme Court


Case number: Appeal (civil) 670 of 1963






DATE OF JUDGMENT: 14/12/1964


CITATION:  1965 AIR 1153            1965 SCR  (2) 547  CITATOR INFO :  R          1965 SC1325  (62)  R          1968 SC1370  (5,6)  RF         1977 SC1680  (7)  RF         1981 SC2198  (13)

ACT: Practice  and Procedure-Decision on writ  application  under Art. 226-suit for same relief-If barred by res judicata.

HEADNOTE: The appellant prayed for the issue of a writ of mandamus and a writ of prohibition against the respondent-State in a writ application filed in the High Court, on the ground that  his liability as surety for some contractors stood discharged on account  of a particular action of the State. no High  Court dismissed  the  petition on merits after full  contest.   He thereupon filed a suit against the respondent and raised the same plea that he was discharged from liability as surety on the  same  grounds.  The trial court,  the  first  appellate Court  and the High Court Held that the suit was  barred  by res  judicata in view of the judgment of the High  Court  on the writ petition.  In appeal to the Supreme Court, HELD  (Per Sarkar, Raghubar Dayal, Rajagopala  Ayyangar  and Mudholkar JJ.) : On general principles of res judicata,  the decision of the High Court on a writ petition under Art. 226 of the Constitution, on the merits, on a matter, after  full contest,  will  operate  as res  judicata  in  a  subsequent regular  suit between the same parties with respect  to  the same matter. [574 E-F] The provisions of s. 11, Civil Procedure Code, 1908, are not exhaustive with respect to an earlier decision operating  as res judicata between the same parties on the same matter  in controversy in a subsequent regular suit and, on the general principle of res judicata, any previous decision on a matter in controversy decided after full contest or after affording fair  opportunity  to the parties to prove their case  by  a court  competent to decide it, will operate as res  judicata in a subsequent regular suit.  It is not necessary that  the court  deciding the matter formerly be competent  to  decide



the  subsequent suit or that the former proceeding  and  the subsequent suit have the same subject matter.  The nature of the  former proceeding is immaterial.  There is,  therefore, no  good  reason to preclude such decisions  on  matters  in controversy  in writ proceedings under Arts. 226 or 32  from operating as res judicata in subsequent regular suits on the same  matters in controversy, between the same parties,  and thus to give limited effect to the principle of finality  of decisions after full contest [573 B-E] Case law reviewed. Per  Subba Rao, J. (dissenting) : The decision given by  the High  Court  in  the writ petition would  not  preclude  the court,  before which the suit was filed, from  deciding  the same question an merits in the suit. [576 F] This  view,  while  it does not make s. 11 of  the  Code  an unnecessary  provision,  does  not  lead  to  any  practical difficulties,  for,  the  decision of the High  Court  on  a question  of  law  will  be  binding  as  an  authority   on Subordinate  Courts and its decision on a question  of  fact will rarely be differed from by the said courts. [576 E-F] Case law considered. 548

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 670 of 1963. Appeal  by special leave from the judgment and decree  dated March  31, 1958 of the Bombay High Court in  Second  Appeals No. 1480 of 1957. S.   T. Desai and I. N. Shroff for the appellant. S.   G. Patwardhan and R. H. Dhebar, for the respondent. The Judgment of Sarkar, Raghubar Dayal, Rajagopala  Ayyangar and Mudholkar, JJ. was delivered by Raghubar Dayal J.  Subba Rao, J. delivered a dissenting Opinion. Raghubar Dayal, J. This appeal, by special leave, raises the question whether a decision of the High Court on merits on a certain  matter after contest in a writ petition under  Art. 226  of  the  Constitution operates as  res  judicata  in  a regular  suit  with respect to the same matter  between  the same parties. The  facts leading to the appeal are these.   The  appellant stood  surety  for  a number of contractors  who  had  taken contracts  in  1947 for felling timber  trees  and  removing timber  in various forests in the erstwhile State of  Baria. The contracts were taken as a result of auctions which  took place  under the ’Conditions of Auction Sale of  Forests  in the  Baria State in the Samvat year 2002’  corresponding  to 1945-46  A.D.,  though in the plaint these  conditions  were referred to as Forest Auction Rules.  On April 7, 1948,  the appellant  presented  an  application  to  the  Baria  State stating  therein  that  certain brokers owed  money  to  the various contractors mentioned in the application and praying that  they  be  restrained  to pay the  amount  due  to  the contractors until further orders and that those brokers  and contractors  be also restrained from directly  removing  the contractors’  jungle goods stored in the godowns at  Piplod, Baria  and  Limkheda  without the permission  of  the  State Government.   It  was further mentioned in  the  application that  if  those contractors would arrive at  an  arrangement with him and carry out the vahivat, be would do the  needful in that behalf.  On this application, it appears, the  State Government issued notices to the contractors stating therein that the surety, i.e., the appellant, had moved, under cl. 8 of  the Conditions of the Auction Sale of jungle  goods  for



attachment  of their goods that be lying in the  godowns  at Baria,  Piplod  and Limkheda in the State and the  debts  or other  movable or immovable property belonging to  them  and for delivering the same to him and directed the  contractors not to sell, mortgage, gift away or otherwise dispose of 549 whatever movable or immovable property they had in the State without the permission of the State. Subsequently,  the State of Baria merged with the  State  of Bombay  on June 10, 1948.  Thereafter, the contractors  were allowed by the Government to remove the materials on certain conditions. The  appellant presented a writ petition under Art.  226  of the Constitution to the High Court of Bombay.  That petition is  not  printed  in  the  appeal  record.   It  was   Civil Application  No.  261  of 1952.  It, along  with  two  other applications,  C.As. Nos. 260 and 376 of 1952, was  disposed of by a common judgment in C.A. 260 of 1952 which is Exhibit P.  194.  The parties agree that what was alleged  and  what was  prayed  for by the appellant in his petition  could  be gathered from the order Exhibit P. 194.  The reply filed  by the parties in that petition is Exhibit P. 196 and gives the case  of the opposite party with respect to the  allegations of  the appellant in his petition.  It however appears  from the  order of the High Court on that writ petition that  the reliefs  claimed were a direction to the  respondents  i.e., the  State  of Bombay and the Mamlatdar of Baria  Taluka  to raise  the attachment levied’ on Municipal Nos. 728 and  642 of  Deogad  Baria,  the  issue of  a  writ  of  mandamus  or directions  under Art. 226 of the  Constitution  prohibiting them   from  selling  those  Municipal  numbers  and:   from proceeding  with the auction sale of properties on  February 15. 1952 or on any other date.  The appellant had alleged in that   petition   that  the  attached  properties   of   the contractors  were  allowed  to be sold  by  the  contractors without the knowledge and consent of the appellant, that the sale  was  unauthorised  and contrary to the  terms  of  the attachment levied by the State and that therefore it bad put an end to the liability of the appellants under their surety bonds. It  was  urged  for the appellant at  the  hearing  of  that petition  that  since the State allowed the  contractors  to sell their own properties the appellant had been  discharged from  his suretyship in respect of the said contractors  and that the State could no longer claim to recover from him the balance due from the said contractors.  The writ application was  presented because, in default of the contracts  to  pay the balance amount due from them the Forest Officers of  the Government  of  Bombay  had moved the  Revenue  Officers  to recover  the  said  amount from the appellant  who  was  the surety   as  an  arrear  of  land  revenue.    The   revenue authorities took steps to attach the immovable properties of the  appellant  and that led the appellant to  present  that petition. 550 The contentions for the State of Bombay and the Mamlatdar in the writ proceedings were :               1.The   petition  was  misconceived   as   not               maintainable  and  there was no case  for  the               issue of a writ of mandamus because the proper               course for the appellant was to redress his so               called  grievance by proceeding  according  to               the ordinary law through the Municipal Courts.               2.There were no Baria State Forest Auction               Rules.  What the Baria State Authorities  laid



             down were the conditions of such auction sales               and   the  appellant’s  reference   to   those               conditions as rules was not correct.               3.The contractors had to furnish a  surety               who  also  had  to  execute  a  separate   and               independent  agreement with the State  in  the               Form  approved  by it.   The  appellant  stood               surety  for the contractors and  executed  the               necessary agreements.               4.The  said  agreements  stipulated  three               important  conditions  : (i) that  the  surety               will pay the installment amount as stipulated;               (ii) that if the instalments were not paid  on               due dates, he will pay interest at one pie per               rupee  per day and (iii) that if he  fails  to               pay  the instalment amounts and the  interest,               the  State will be at liberty to  recover  the               same  from any of his properties and from  his               successors and assignees.               5.Condition  No.  8  of  the  conditions   for               auction sales of forests was               "So  long as the contractor has not  paid  the               deposit  or the confirmed sale price  in  full               into the Treasury or to the Surety, the Surety               shall,  at any time present an application  to               the  Treasury Officer for the recovery  of  an               amount required to discharge his liability  in               connection with the confirmed sale price or of               the  amount paid by him without filing a  suit               for  the same in a civil Court.  In that  case               the   property,  effects  and  debts  of   the               contractor that may be within the territory of               the  State  shall,  as in  the  case  of  land               revenue, be attached and auctioned at the cost               and risk of the contractor and out of the sale               proceeds  realised at the auction, the  amount               due  to the surety or an amount equivalent  to               the amount required to discharge his liability               shall be paid to the Surety."               551               6.The   appellant  had  not  applied   for               attachment and sale of all the properties  and               outstandings   of  the  contractors  but   had               requested  the State to see that  the  brokers               did not pay their dues to the contractors that               the materials in the depots were not  directly               disposed  of by the contractors and  that  the               contractors  carried  on  the  business  after               settling with the petitioner.               7.The    State   issued   the    necessary               injunction  orders of attachment, even  though               the appellant’s request dated April 7, was not               at all consistent with the provisions of  sale               condition No. 8.               8.In order to obviate the complete hold up               of  the  timber trade, a  system  was  devised               whereby   the  contractors  were  allowed   to               dispose  of  the  stock  of  timber,  if   the               sureties  consented  to its  removal  and  the               contractors   guaranteed  to  pay  the   price               realised to the sureties concerned.               9.According  to the record, the  appellant               had  requested the State to release the  goods               of  certain contractors by his  letters  dated               May 19, and 22, of 1948.  This scheme  adopted



             by the State of Baria was solely motivated  in               view of the inevitable delay on account of the               sureties  first realising the amount and  then               depositing   the  amount  in  the   Government               treasury  and the appellant was aware of  that               slight modification in the procedure.               10.At a meeting convened by the  Divisional               Forest Officer, Panchmahals, Godhra, on August               1, 1948, the appellant was present and it  was               decided  that the contractors be permitted  to               remove the material on payment of the price of               the materials sold.                11.  It  was denied that as a result  of  the               alleged  action  of the Forest  Officers,  the               petitioner’s    security   was    considerably               disminished  and  the eventual remedy  of  the               petitioner  against the contractors  was  very               much   impaired   and   the   petitioner   was               discharged  from his suretyship in respect  of               the said contracts. The High Court dismissed the writ petition on July 22,  1952 holding  that there was no substance in the contention  that the petitioners had been discharged from their liability  as sureties.  The sole basis on which the contention was raised was that the contractors were permitted by the State to sell their properties 552 which  were  under attachment contrary to the terms  of  the attachment,  in  view of the sales being  held  without  the knowledge and consent of the appellant.  The High Court held that  it  was a wrong assumption of the appellant  that  the attached goods were not to be sold without his knowledge and consent.    The  prayer  made  by  the  appellant   in   his application dated April 7, 1948 did not include a prayer  to the  effect that the attached goods be not sold without  his knowledge  and consent.  The High Court therefore held  that the  plea  that the sales absolved the  appellant  from  his liability as surety could not be accepted. We are no more concerned with the other point raised by  the writ  petition  to the effect that the  revenue  authorities were  not  entitled  to  recover the  amount  due  from  the appellant under the summary procedure prescribed by the Land Revenue   Code.   The  High  Court  did  not   accept   this contention. On August 29, 1952, the appellant instituted the suit  which has  given  rise to this appeal.  It was  alleged  that  the Baria State had its own laws and rules and regulations, that the contractors of that State were bound to act according to them, that the Baria State had rules known as Forest Auction Rules for the auction of timber of the forests and  auctions were held according to those rules and that the people acted on the understanding that the auctions and the surety  bonds were in pursuance of the said Rules.  Auctions were held  in September-October  1947.   The appellant stood  surety  with respect  to  the 1 1 contracts mentioned in para  2  of  the plaint.   The  alleged rude No. 8 (condition No.  8  of  the Forest  Auction Conditions) was quoted in the  plaint.   The appellant executed all the surety bonds on the understanding that the Baria State Forest Auction Rules were the basis  of the  auction  sales  and  that  the  surety  bonds  were  in accordance  with  those  rules.   Due  to  certain   reasons mentioned  in  para 5 of the plaint, the  appellant.  on  or about April 13, 1948, applied to the Baria State praying for the assets and properties of the contractors to be taken  in attachment and sold and for facilities being made  available



to  him to fulfill his liabilities under the  surety  bonds. The   Baria  State  authorities  attached  the  assets   and properties  of  the  Contractors  as  prayed.   It  may   be mentioned here that in his deposition the appellant admitted the application, Exhibit 195, dated April 7, 1948 to be  the application be had presented for the aforesaid purpose. It was further alleged in the plaint that subsequent to  the merger  of the Baria State with the Bombay State on  October 6, 553 1948,  the Bombay State Forest Authorities,  without  asking the  plaintiff  or  without his consent,  allowed  the  said contractors  to  remove and sell their respective  teak  and sundry  goods  which  were  taken  in  attachment  and  thus behaving  in  contravention of the attachment  made  in  his interest  and put an end to his security and that  according to law the plaintiff thus became discharged of liability  as surety  for  the said contractors.  Another reason  for  his alleged discharge from liability was alleged to be that even fresh sureties had been obtained from some contractors.   It was  also mentioned in the plaint that the appellant had  to make  a petition to the High Court in order to  prevent  his property from being sold and that he had been informed  that the  said petition had been dismissed on the ground that  he could lawfully get his reliefs in the Civil Court.               On the above facts the appellant prayed  inter               alia as follows               "1.  It  may be declared that have  become  is               charged  from all liability as surety for  the               contractors mentioned in para 2 of this plaint               and  a  decree  may  be  passed  against   the               defendant No. 2 and defendant No. 1 herein and               their  servants, officers and agents,  in  the               form  of  a permanent  injunction  prohibiting               them for all times from attaching my property,               selling or causing it to be sold.               2.A permanent injunction may be issued to  the               defendant  No.  1 herein and  their  servants,               agents  and  officers that  these  defendants,               under the facts mentioned in this plaint shall               not, unless in execution of a decree in  their               favour  obtained from a proper and  authorised               court,  attach any property of this  plaintiff               and sell it in the revenue manner or cause  it               to be sold." The State of Bombay contested the suit mostly repeating what they  had  urged  in  their reply  affidavit  filed  in  the proceedings on the writ application.  It did not admit  that the writ application filed by the plaintiff was dismissed by the  High Court because another remedy was open  and  stated that his contentions were not upheld. Several issues were framed.  Issue No. 8A was "Is  the  suit barred by res judicata in view  of  the  High Court’s judgment in Civil Applications No. 260, 261 and  376 of 1952 ?" The Trial Court held on this issue that judgment operated as res  judicata in the suit.  It recorded its findings on  the other issues 554 as  well, but we are not concerned with those findings.   It dismissed the suit. On  appeal by the appellant, the District Judge agreed  with the Trial Court that the suit was barred by res judicata  in view of the judgment of the High Court on the writ petition. He  accordingly dismissed the appeal.  He also recorded  his



findings on the other points urged before him. On second appeal, the learned Single Judge of the High Court agreed  with the courts below that the decision of the  High Court  on  the question whether the plaintiff  was  absolved from  liability under the surety agreement must be  regarded as  res  judicata and could not be opened in the  suit.   He further considered the question whether in the circumstances of  the  case the appellant was entitled to  the  injunction prayed  for  and held that it was open to the  appellant  to maintain  the suit for the determination of the  amount  due from  him as that had not been considered and determined  in the  writ  petition.  He therefore allowed the  appeal,  set aside the order of the District Judge and passed a decree in favour of the appellant declaring that he was liable to  pay the  amount due under the surety agreement less  the  amount paid by the contractor and such amount as had been recovered by  the  State  by sale of the property  of  the  contractor attached under condition No. 8. He further ordered issue  of an  injunction  restraining  the State  from  enforcing  the liability for the amount in excess of the amount declared to be due from the appellant. The  appellant’s  application for leave to  file  an  appeal under cl. 15 of the Letters Patent of the Bombay High  Court was  rejected. Thereafter, the appellant filed  this  appeal after obtaining special leave from this Court. Mr.  Desai,  for the appellant, has urged two  points.   The first  is that a decision in a writ application  under  Art. 226 for the issue of a writ of mandamus does not operate  as res  judicata  in a regular suit subsequently  filed  for  a declaration  of the plaintiff’s rights and for the issue  of an order of injunction against the defendant.  The other  is that  the  doctrine of constructive res judicata  cannot  be applied  when  the  dispute  was first  decided  in  a  writ petition  and is to be later decided in a regular suit.   It has  been said that it would be very dangerous to hold  that the  decision  in  the  writ  application  operates  as  res judicata  in the regular suit even if identical  reliefs  on identical  grounds were prayed for in a writ petition,  with those prayed for in the later regular suit. 555 The first question is really the main question for  decision in  this appeal as it is not a case for the  application  of the  principle  of constructive res judicata.  It  is  clear from  what has been stated above that the  appellant  prayed for  the  issue  of  a  writ  of  mandamus  and  a  writ  of prohibition  in the writ application on the ground that  his liability  as  surety  for  the  several  contractors  stood discharged  on account of the State, without  the  knowledge and  consent of the appellant, allowing the  contractors  to dispose  of  the  goods  which  had  been  attached  on  the application of the appellant, an application which he  could present in view of Condition 8 of the Conditions of  Auction Sale.  The reliefs sought in the plaint are the same and are sought on the same grounds.  The High Court had to determine in  the writ petition whether the appellant’s  liability  as surety stood discharged in view of what he had alleged.  The same, point has to be directly and substantially decided  in the  suit also.  The orders to be passed if the  appellant’s contention  is upheld would be the same as that which  would have been passed if his contention had been accepted in  the writ petition.  In both cases, on both occasions, the  Court had  first  to  hold that his liability as  a  surety  stood discharged, and that as a consequence of such a finding,  it had,  in the writ proceedings, to issue a writ  of  mandamus and  a writ of prohibition as prayed for in the  writ  peti-



tion,  directing  the  State of Bombay not  to  enforce  any liability  which  the  appellant had  undertaken  under  the agreements executed as a surety and not to proceed with  the realisation  of any amount the State alleged to be due  from him  and  in  the  suit to pass  a  decree  prohibiting  the defendants  by  a  permanent injunction for  all  time  from attaching his property selling or causing it to be sold  and also   a  permanent  injunction  to  the  State  of   Bombay restraining  them from attaching and selling any  proper  of the  appellant unless a proper decree is obtained  from  the Court  in  the  manner provided for  the  recovery  of  land revenue. It is urged for the appellant that in the writ petition  the contention  about  the  appellant’s liability  as  a  surety having  come  to  an  end was based  on  the  terms  of  the contract,  which  was  based on the  conditions  of  auction sales, between the appellant and the State of Baria while in the present suit the contention with respect to the  cession of his liability as a surety was based on the auction rules. The  distinction sought to be made has no substance.  It  is denied  in  the  reply  affidavit filed  on  behalf  of  the respondent  in the writ petition that there were  any  Baria State  Forest Auction Rules.  We have not been  referred  to any  rules,  In fact, when we asked for the rules,  we  were provided by learned counsel for 556 the appellant with a booklet by the name ’Conditions for the Auction  Sale of Forests’.  Further, the order of  the  High Court  on the ’writ petition mentions in the early  part  of the order : "It would appear that the Baria State had auctioned the teak wood trees ... on the terms and conditions contained in  the said Forest Auction Rules." It may be said that these conditions for the auction sale of forests  have been referred to sometimes as rules,  probably in view of their binding nature. It  cannot therefore be disputed that if the decision  which had  been  given  in a writ petition had  been  given  in  a regular  suit  that  decision would  have  operated  as  res judicata  in the later suit.  The question which arises  for consideration is whether such a decision in a writ  petition can also bar a later suit on account of its operating as res judicata. Before  we  deal with the question, we may  dispose  of  the short points urged for the appellant.  It is urged that if a decision in a writ application on merits be held to  operate as res judicata in a regular suit, the provisions of 0.2, r. 2 C.P.C. would also be applicable to the institution of  the subsequent  suit with respect to such part of the  cause  of action for which no relief was sought in the writ  petition. The  contention is not sound as the provisions of r. 2,  0.2 apply  only to suits.  Sub-r. (1) requires that  every  suit shall include the whole of the claim which the plaintiff  is entitled  to make in respect of the cause of action;  but  a plaintiff  may relinquish any portion of his claim in  order to  bring  the suit within the jurisdiction  of  any  Court. Sub-rule  (2) then provides that where a plaintiff omits  to sue in respect of or intentionally relinquishes any  portion of his claim, he shall not afterwards sue in respect of  the portion  so omitted or relinquished.  By its very  language, these  provisions  do not apply to the contents  of  a  writ petition and consequently do not apply to the contents of  a subsequent suit.  Such a view was indicated by this Court in Devendra  Pratap  Narain  Rai  Sharma  v.  State  of   Uttar Pradesh(l) when it was said at p. 324 : ’



             "The  bar of 0.2, r. 2 of the Civil  Procedure               Code on which the High Court apparently relied               may  not  apply  to  a  petition  for  a  high               prerogative   writ  under  Art.  226  of   the               Constitution,   but  the  High  Court   having               disallowed  the  claim of  the  appellant  for               salary  prior to the date of the suit,  we  do               not think that we would be justified in               (1)   [1962] Supp. 1 S.C.R. 315.               557               interfering   with   the   exercise   of   its               discretion by the High Court." The  contention that a decision on a writ petition  even  on merits  should  not  operate  as  res  judicata  as  it   is discretionary  for the Court to pass any order it  considers fit  on  a  writ  petition  and  not  to  decide  it   after considering  all  the  points  urged  by  the  parties,  was negatived  in Daryao v. The State of U.P.(1) With regard  to the  point  that  the issue of a writ by a  High  Court  was discretionary as it may refuse to exercise its  jurisdiction under  Art. 226 as for instance when the party applying  for the  writ was guilty of laches but the Supreme  Court  could not  refuse to issue the appropriate writ once it was  shown that a fundamental right had been infringed, it was said, at p. 589 :               "  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, reference may be made to what was  said, about  the  contention that a previous judgment was  not  to operate  as res judicata against a party as it was based  on certain statements recorded before that party was impleaded, in Krishna Behari Roy v. Brojeswari Chowdranee(2)               "It was suggested by Mr. Cave that the  former               judgment  ought  not to  be  binding,  because               certain witnesses having been examined  before               the present Appellant intervened in the  suit,               he  was  refused  the  opportunity  of  cross-               examining them.  Their Lordships think that               (1)[1962]1 S.C.R. 574.                (2) L.R. 2 I.A. 283, 286                Sup.C.1./65 2               558               such an objection is no answer to the  defence               arising  from the former judgment.   If  there               had  been  any miscarriage of that  kind,  the



             matter  was one for appeal in that suit.   The               objection does not appear to have been  raised               in the appeals which were successively made in               that  suit to the Civil Judge and to the  High               Court;  but whether it was so raised  or  not,               their Lordships think that that cannot  affect               the  operation  of the final  judgment,  which               must be taken to have been rightly given." Another  reason urged in support of the contention  is  that the petitioner in a writ petition had no right to apply  for the  issue  of the appropriate writ and it is  a  matter  of discretion  for the High Court to entertain any  application or  to  grant it and that a decision in one  proceeding  can operate as res judicata in a subsequent proceeding only when the  party  initiating the first proceeding had a  right  to initiate  both the proceedings when the nature of  both  the proceedings be the same.  This is the same contention as the earlier  one,  put in a different form, and does  not  merit further consideration. It  is  further submitted for the appellant that a  writ  of mandamus, according to its nature, is to be issued mainly to compel the performance by a public servant of his duty of  a public  nature, while in a suit the plaintiff prays for  the enforcement  of his personal rights.  The declaration  of  a personal  right  is not an essential characteristic  in  the issue  of a writ of mandamus.  The difference in the  nature of  the two proceedings is immaterial if the matter  decided inter  parties in one proceeding is the same which is to  be determined in the subsequent proceedings and the parties  to the suit were also parties to the writ petition. It  has also been contended, and support is sought from  the case  reported  as  L. Janakirama lyer v.  P.  M.  Nilakanta lyer,(1) that the general principles of res judicata are not to  be  applied  in  considering whether  a  decision  in  a previous  suit  bars  a  later suit on  the  ground  of  res judicata. On  the other hand, it is contended for the respondent  that the  doctrine  of  res  judicata  is  not  confined  to  the provisions  of S. II C.P.C. but is of a general  application on  grounds  of  public  policy,  that  the  fact  that  the proceedings on a writ petition are conducted summarily is no reason  to  reduce the value of the decision arrived  at  in those proceedings especially when a solemn decision is given after affording an opportunity to the parties to put  before the (1)  [1962] Supp. 1 S.C.R. 206. 559 Court  all the relevant matters and after fully  considering the merits of the matter in controversy and that it would be really dangerous if it be held that a decision so arrived at in proceedings in a writ petition does not bar a  subsequent suit for the decision of the same matter in controversy.  It is  pertinently  pointed out that if  the  writ  application presented  by  the appellant had been allowed  by  the  High Court on a finding of fact that the liability of the  appel- lant as a surety stood discharged and a writ of  prohibition had  been  issued  against the State as prayed  for  by  the appellant in the writ proceedings, the State could not  have sued  for a declaration that these orders of the High  Court were bad and that a decree be passed in its favour declaring that the appellant’s liability as the surety still continued and  that the State was free to take any action open  to  it under law for the recovery of the amount due from him. It  is not necessary to consider in any detail  whether  all orders made on a writ petition would bar a subsequent  suit.



We  would limit the consideration of the contentions  raised before  us  to  two main points : whether S.  11  C.P.C.  is exhaustive with respect to the application of the  principle of  res judicata in a suit and whether in a subsequent  suit general principles of res judicata can bar the consideration of matters directly in issue and identical with. those which had  been earlier and after full contest, decided on  merits by  a  competent  Court in any  other  proceeding  including proceedings on a writ petition. Before  discussing the law of res judicata as laid  down  in the Code of Civil Procedure, we may refer to the opinion  of the  Judges  expressed in 1776 in the Duches  of  Kingston’s Case(1) to which reference has been invariably made in  most of  the cases to be considered by us.  It was said  in  that case :               "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  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, t between the same  parties,               coming  incidentally  in question  in  another               Court,  for a different purpose.  But  neither               the  judgment  of a  concurrent  or  exclusive               jurisdiction is               (1)   2 smith’s L.C. 13th edn. 644, 645.               560               evidence of any matter which came collaterally               in question, though within their jurisdiction,               nor of any matter incidentally cognizable, nor               of any matter to be inferred by argument  from               the judgment." It  is  to be noticed that the opinion does  not  take  into account  whether the earlier judgment was in a suit  or  any other proceeding and whether it was used as res judicata  in another  suit  or  proceeding.  The  emphasis  is  that  the judgment  be  of a Court and that it is relied upon  as  res judicata  in  another  Court.   Of  course,  the   essential conditions that the judgment be directly upon the same point which  is  for determination in the subsequent suit  and  be between  the same parties are also to be satisfied.   It  is obvious   that  the  judgment  of  a  Court   of   exclusive jurisdiction is to be treated as res judicata upon the  same matter  in  another Court which will not be a  Court  having jurisdiction over the matter. It  would  be helpful to consider how the various  Codes  of Civil  Procedure have dealt with the question of the  second suit  being  barred on account of an earlier decision  by  a Court.   The first Code of Civil Procedure was Act  VIII  of 1859.   Its section 1 gave jurisdiction to the civil  courts over all suits of a civil nature with the exception of those of  which cognizance was barred by any Act of Parliament  or by any Regulation of the Codes of Bengal, Madras and  Bombay or  by any Act of the Governor General of India in  Council. Since then Civil Courts had jurisdiction to try all suits of a  civil nature except those whose cognizance was barred  by any  enactment in force.  Section 2 provided that the  Civil Courts  would not take cognizance of any suit brought  on  a cause  of  action which had been heard and determined  by  a



Court of competent jurisdiction in a former suit between the same  parties  or between parties under whom  they  claimed. The bar to the second suit was based on the identity of  it, cause of action with that of the earlier suit which had been heard  and determined by a court of  competent  jurisdiction between the same parties. The  language  of s. 2 of the Code of 1859 seems  to  be  in pursuance  of the principle recognised in common law that  a cause  of action on which a decree has been based merges  in the decree and ceases to be a cause of action for any future suit.   Parke.  B said in King  v. Hoare (1) at p. 2 1 0  of the English Reports :               "If  there be a breach of contract,  or  wrong               done,  or  any other cause of  action  by  one               against another, and judgment be recovered  in               a court of record, the judgment               (1)   153 E.R. Exch. 206,13 M & W 494.               561               is  a  bar to the original  cause  of  action,               because it is thereby reduced to a  certainty,               and the object of the suit attained, so far as               it  can  be  at that stage; and  it  would  be               useless and vexatious to subject the defendant               to  another suit for the purpose of  obtaining               the  same  result.   Hence  the  legal  maxim,               ’transit in rem judicatam the cause of  action               is changed into matter of record, which is  of               a  higher nature, and the inferior  remedy  is               merged  in  the higher.  This  appears  to  be                             equally  true where there is but one c ause  of               action, whether it be against a single  person               or  many.  The judgment of a court  of  record               changes  the nature of that cause  of  action,               and  prevents its being the subject matter  of               another  suit, and the cause of action,  being               single,  cannot  afterwards  be  divided  into               two." This  principle  had the approval of the House of  Lords  in Kendall  v. Hamilton.(1) It may be noticed that, in  special cases,  this principle is applied when even parties  to  the subsequent  suit are not. the same who were parties  in  the first  suit.  The finality of the judgement is based on  the fact  that  the cause of action had merged in a  decree  and therefore no other action can be based on the same cause  of action. In Khugawlee Sing v. Hossein Bux Khan(1) the Privy  Council, after  quoting the opinion in Duchess of Kingston’s  Case(3) said :               "There is nothing technical or peculiar to the               law  of England in the rule as so stated.   It               was  recognised  by the civil law, and  it  is               perfectly  consistent with the second  section               of the Code of Procedure under which this               case was tried.... " In  Soorjomonee Dayee v. Suddanund Mohapatter(4)  the  Privy Council held that the term ’cause of action’ in s. 2 of  Act VIII  of  1859  be construed with reference  rather  to  the substance than to the form of action, and that even if  such an  interpretation  of the expression be  not  correct,  the provisions of S. 2 of the Code would by no means prevent the operation  of the general law relating to res  judicata  and observed at p. 218               "This  law has been laid down by a  series  of               cases in   this   country   with   which   the



             profession is familiar, and has probably never               been betterlaid down than in a case which               (1)   (1879) 4 A.C. 504.  (2)  (1871) 7  Beng.               L.R. 673, 678.               (3)   Smith’s L.C. 13th edn. 644.(4) (1872-73)               I.A. Supp. 212.               562               was  referred to in the 3rd volume  of  Atkyns               (Gregory   v.  Molesworth),  in   which   Lord               Hardwicke  held  that  where  a  question  was               necessarily  decided in effect though  not  in               express  terms  between parties to  the  suit,               they.  could  not raise the same  question  as               between  themselves in any other suit  in  any               other   form;  and  that  decision  has   been               followed  by a long course of  decisions,  the               greater part of which will be found noticed in               the  very able notes of Mr. Smith to the  case               of the Duchess of Kingston." In  Krishna  Behari Roy’s Case(1) the  Privy  Council  again stated that the expression ’cause of action’ in s. 2 of  Act VIII  of  1859 could not be taken in its  literal  and  most restricted sense, and observed at p. 285 :               "But  however that may be, by the general  law               where  a  material issue has  been  tried  and               determined  between  the  same  parties  in  a               proper  suit, and in a competent Court, as  to               the  status of one of them in relation to  the               other,  it cannot, in their opinion, be  again               tried in another suit between them." It appears that s. 13 of the Code of Civil Procedure of 1877 was  enacted in view of what was said about the general  law of  res  judicata  in Krishna Behari Roy’s  Case.  (1)  That section reads               "No Court shall try any suit or issue in which               the matter directly and substantially in issue               has been heard and finally decided by a  Court               of  competent jurisdiction, 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 Misir Raghobardial v. Rajah Sheo Baksh Singh(1) the Privy Council  had  to construe s. 13 of the 1877-Code (Act  X  of 1877).   It  referred to S. 2 of Act VIII of 1859  and  then observed at p. 202 :               "It is clear that this section would not  have               applied  to  the present case, the  causes  of               action  in  the two suits the  non-payment  of               interest   in  one  and  the  non-payment   of               principal  in the other being  different.   In               fact,  when  the first suit  was  brought  the               cause of action in the second had not  arisen.               But  independently  of this provision  in  the               Code  of Procedure, the Courts in  India  have               adopted  the rule laid down in the Duchess  of               Kingston’s               (1) L.R. 21. A. 283.               (2) (1882) L.R. 9 I.A. 197.               563               Case(1), and have applied it in a great number               of  cases.   It was recognized as the  law  in               India  by  this Board in  Khugowlee  Singh  v.               Hossein Bux Khan (2) . . . . " The   expression  ’Court  of  competent  jurisdiction’   was construed  to mean ’a Court which had jurisdiction over  the



matter in the subsequent suit in which the decision was used as  conclusive’  or, in other words ’a Court  of  concurrent jurisdiction.  In considering this matter, the Privy Council referred to the fact that in this country there were  Courts of  various  grades  with  different  pecuniary  limits   of jurisdiction, that a suit had to be instituted in the  Court of the lowest grade competent to try it and that it would be improper  if a judgment of an inferior Court was to  operate as res judicata in a suit in a superior Court, and  observed at p. 203               "By  taking  concurrent jurisdiction  to  mean               concurrent  as regards the pecuniary limit  as               well  as  the  subject matter,  this  evil  or               inconvenience is avoided; and although it  may               be desirable to put an end to litigation,  the               inefficiency  of  many of  the  Indian  Courts               makes it advisable not to be too stringent  in               preventing  a litigant from proving the  truth               of  his case.  It appears to  their  Lordships               that  if  this  case  had  arisen  before  the               passing  of Act X of 1877, the High Courts  in               India  would  have  rightly  held   that   the               decision  of the Extra Assistant  Commissioner               in the first suit was not conclusive as to the               amount of the principal sum due on the bond."               and, after quoting s. 13, said :               "The intention seems to have been to embody in               the  Code of Procedure, by sects. 12  and  13,               the law then in force in India, instead of the               imperfect provision in sect. 2 of Act VIII  of               1859.  And, as the words of the section do not               clearly  shew an intention to alter  the  law,               their Lordships do not think it right to put a               construction  upon them which would  cause  an               alteration." This shows that the general law of res judicata was  applied to suits in this country despite a specific provision  about it in S. 2 of Act VIII of 1859. The  scope  of  the bar was extended by the  Code  of  Civil Procedure, 1882 (Act XIV of 1882).  Its s. 13 dealt with res judicata. (1)  2 Smith’s L.C. 13th edn. 644. (2) (1871) 7 Beng.  L.R. 673. 564 Section II of the present Code of Civil Procedure (Act V  of 1908) deals with res judicata and is in these terms :               "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  subse-               quently raised, and has been heard and finally               decided by such Court." The above quoted main part of s. 11 is identically the  same as  the  corresponding part of S. 13 of the  Code  of  1882. Section  11,  by  its terms, can be  applicable  only  to  a subsequent suit when the same matter in controversy had been heard and decided in an earlier suit by a Court competent to try the subsequent suit.  There is nothing, however, in  its language   to  exclude  the  application  of   the   general principles of res judicata to suits. The  general principle of res judicata, has been applied  to



suits  even  though  the  decision on  the  same  matter  in controversy  had been previously given by a competent  Court in proceedings which were not suits under the Code of  Civil Procedure.   The case law on the subject will  be  discussed later.  It is urged that there seems to be no good principle behind  applying the general principles of res  judicata  to suits  in  circumstances  which do not  bring  the  previous decision  within  the  language  of  s.  11,  and  that  the legislature’s  restricting  the application of  the  general principles of res judicata to the circumstances mentioned in s. 11 must be deemed to indicate that the general  principle of  res judicata be not applied to bar a subsequent suit  if the  earlier  decision of the same controversy  between  the same  parties had been arrived at in proceedings other  than suits  and  in which the entire procedure provided  for  the decision  of  the dispute in a regular suit might  not  have been  followed.   It appears to us that the reason  for  the specific  provisions  of S. 11 is not that  the  legislature intended to bar the application of the general principles of res judicata to suits when the previous decision is  arrived at  in  proceedings other than suits.  The  legislature  was providing  in the Code of Civil Procedure for the  trial  of suits  over  which the civil Court  was  given  jurisdiction under the provisions of the Code.  The preamble of the  Code of 1908 reads 565 "Whereas  it is expedient to consolidate and amend the  laws relating to the procedure of the Courts of Civil Judicature; It is hereby enacted as follows :-" The Code was dealing with procedure of the civil Courts only and  had therefore not to consider what would be the  effect on  the  trial of suits in view of the provisions  of  other enactments  or of general principles of res judicata  or  of any other kind.  It had to restrict its provision about  res judicata  to  the effect of decisions in a civil suit  on  a subsequent  civil  suit and therefore enacted s. 11  in  the form  in which we find it.  It made one of  the  condition-, for the application of a previous decision to operate as res judicata  to be that the previous decision is made not  only by  a  Court competent to make it but by a  Court  which  be competent  to try the subsequent suit.  This condition  must have  been considered necessary in view of the  observations of  the  Privy Council in Misir  Raghobardial’s  Case(1)  on account  of  the hierachy of Courts under the  various  Acts constituting  Courts of civil judicature and it  could  have been felt that a decision by a Court which is not  competent to  decide the subsequent suit be not treated of  a  binding nature.   Such an exceptional procedure seems to  have  been provided  as  a  matter  of  precaution  as  the  Court  not competent  to try the subsequent suit must necessarily be  a Court of inferior jurisdiction and therefore more liable  to go wrong.  Whatever the reason may be, the provisions of  s. 1  1  will govern a previous decision in a  suit  barring  a subsequent   suit  with  respect  to  the  same  matter   in controversy  and general principles of res judicata in  such particular circumstances will neither be available to bar  a subsequent  suit nor will be needed.  It is in such  context that the remarks of this Court in Janakirama Iyer’s  Case(2) at p. 224 are to be considered.  In that case, the  decision in  a  previous suit could not operate as  res  judicata  in accordance with the provisions of s. 11 of the Code, because the  parties  in the two suits could not be said to  be  the same parties or parties who claimed through one another.  It was then said :               "Where s. 11 is thus inapplicable it would not



             be  permissible  to  rely  upon  the   general               doctrine of res judicata.  We are dealing with               a  suit  and  the only  ground  on  which  res               judicata can be urged against such a suit  can               be the provisions of s. 11 and no other." The observations are to be read in the context in which they are  made,  the  context  being that  the  question  of  res judicata was (1)  (1882) L.R. 9 I.A. 197.             (2) [1962] Supp.  1 S.C.R. 206. 566 being  considered  in  connection with  the  decision  in  a previous suit and the parties in the two suits being not the same.   In  fact, general principles of  res  judicata  also require  that  the  earlier decision  be  between  the  same parties.   A  decision  not inter parties  cannot,  even  on general principles of res judicata, operate as res  judicata in a subsequent suit. We  may  now  refer to some of the decided  cases  having  a bearing  on the applicability of the general  principles  of res judicata to suits, when the previous decision is not  in a suit but in other proceedings. In  Hook v. Administrator-General of Bengal(1) the  question was whether a previous order in an administration suit could operate  as res judicata with respect to matters  which  had been   decided   in  the  subsequent   administration   suit instituted for decision of certain matters left open in  the previous suit.  It was said at p. 193 :               "The  question as to the perpetuity  had  been               definitely  and  properly before  him  on  the               former  hearing,  and was,  in  fact,  decided               without  any reservation, as is made plain  by               the  terms of the judgment itself, which  show               that  the determination of the dispute  as  to               the perpetuity was the foundation of the whole               judgment  ... It is not, and indeed it  cannot               be,  disputed that, if that be the  case,  the               matter  has been finally settled  between  the               parties,  for the mere fact that the  decision               was  given in an administration suit does  not               affect its finality : see Peareth v.  Marriott               (22  Ch.   D.  182).   The  appellate   Court,               however, took a different view, and  regarding               the question as still open decided it  against               the appellant, but the error in their judgment               is  due  to the fact that  they  regarded  the               question  as completely governed by s.  11  of               the Code of Civil Procedure."               and  then reference was made to what has  been               said  in  Ram Kirpal Shukul  v.  Musammat  Rup               Kuari(2) :               "The binding force of such a judgment  depends               not  upon  sect. 13, Act X of 1877,  but  upon               general  principles  of law.  If it  were  not               binding there would be no end to litigation."               In  Ramachandra Rao v. Ramachandra Rao(3)  the               question  arose about the decision  about  the               title to compensation under               (1)   L.R. 48 I.A. 187.               (3)   L.R. 49 I.A. 129.               (2) L.R. 11 I.A. 37, 41.               567               proceedings  in Land Acquisition operating  as               res judicata in a subsequent suit with respect               to the rights of the parties.  It was said  at



             p. 136 :               "When  once  the award as to  the  amount  has               become  final, all questions as to  fixing  of               compensation  are then at an end; the duty  of               the  Collector  in case of dispute as  to  the               relative   rights  of  the  persons   together               entitled  to the money is to place  the  money               under  the  control  of  the  Court,  and  the               parties  then can proceed to litigate  in  the               ordinary way to determine what their right and               title to the property may be.  That is exactly               what  occurred in the present case.   How  the               proceedings were commenced is a matter that is               not   material   provided   that   they   were               instituted  in the manner that gave the  Court               jurisdiction, for they ended in a decree  made               by  the  High  Court and  appealable  to  this               Board." The  Court  then referred to what was said in Badar  Bee  v. Habib  Merican  Noordin (1) and in Hook’s Case(1)  and  said that the principle which prevents the same case being  twice litigated  is of general application, and is not limited  by the specific words of the Code in this respect. Kalipada Dev v. Dwijapada Das(3) the Privy Council held that a decision in contentious proceedings under the Probate  and Administration  Act, 1881, was binding in a subsequent  suit upon  the  parties to the earlier suit,  including  a  party whose  name had been omitted from the formal order made  and reiterated  that the terms of S. 11 were not to be  regarded as  exhaustive in regard to what decisions could operate  as res judicata. In  Mst.  Bhagwati v. Mst.  Ram Kali (4 ) a  decision  about title in Land Acquisition Act proceedings was held to be res judicata  in a subsequent suit about the title  between  the same parties. These decisions of the Privy Council well lay down that  the provisions  of s. 11 C.P.C. are not exhaustive with  respect to  an  earlier decision in a proceeding  operating  as  res judicata  in  a  subsequent suit with respect  to  the  same matter  inter parties, and’ do not preclude the  application to  regular suits of the general principles of res  judicata based on public policy and applied from ancient times. (1)  (1909) A.C. 615, 623. (3)  L. R. 57 I.A. 24. (2)  L.R. 48 I.A. 187. (4)  L.R. 66 I.A. 145. 568 In Sheoparsan  Singh v. Ramnandan Singh(1) it was said               "But  in  view of the arguments  addressed  to               them their Lordships desire to emphasize  that               the  rule  of res judicata, while  founded  on               ancient  precedent,  is dictated by  a  wisdom               which  is  for all time.  ’It hath  been  well               said,’    declared   Lord   Coke,    ’interest               reipublicae  ut  sit finis  litium,  otherwise               great  oppression might be done  under  colour               and pretence of law’ : 6 Coke, 9a.  Though the               rule  of the Code may be traced to an  English               source,  it  embodies  a doctrine  in  no  way               opposed to the spirit of the law as  expounded               by  the Hindu commentators.  Vijnanesvara  and               Nilakantha  include  the  plea  of  a   former               judgment  among  those allowed  by  law,  each               citing for this purpose the text of Katyayana,               who  describes  the plea thus : "If  a  person



             though defeated at law sue again he should  be               answered,  ’You were defeated formerly.   This               is  called the plea of former judgment."  [See               the  Mitakshara  (Vyavahara), bk.  II,  ch.  1               edited  by  J.  R. Gharpure, p.  14,  and  the               Mayuka,  ch.  1.,  s. 1, p.  11  of  Mandlik’s               edition].  And so the application of the  rule               by the Courts in India should be influenced by               no  technical considerations of form,  but  by               matter of substance within the limits  allowed               by law." This Court had to consider the question of the applicability of  the general principles of res judicata in several  cases and has repeatedly held that this principle is not based  on a rule of technicality but is based on high public policy to bring  about  an  end to litigation by  giving  finality  to judgments  inter  parties  and  to  save  a  litigant   from harassment  a second time.  The principles laid down by  the Privy Council have been generally accepted.  In Rai  Lakshmi Dasi v. Banamali Sen(2) this Court approved of what was said by  the Privy Council in Hook’s Case(3);  Ramachandra  Rao’s Case(4) and Mst.  Bhagwati’s Case(5) and said at p. 166               ". . . and in these circumstances it has to be               held  that the question of title to  the  four               anna  share was necessarily and  substantially               involved  in the land acquisition  proceedings               and  was  finally decided by  a  court  having               jurisdiction to try it and that decision  thus               operates as res judicata. . .               (1) L.R. 43 I.A.91, 98.                (2) [1953] S. C. R. 154.                (3) L.R. 48 I.A. 187.                (4) L.R. 49 I.A. 129.               (5)   L.R. 66 I.A. 145.               569 In Pandit M. S. M. Sharma v. Dr. Shree Krishna Sinha(1)  the question  arose  for  the  first  time  about  applying  the principle of res judicata in writ applications under Art. 32 of the Constitution and this Court said at p. 103 :               "This  Court has laid it down in the  case  of               Raj  Lakshmi Dasi v. Banamali Sen(2) that  the               principle    underlying   res   judicata    is               applicable in respect of a question which  has               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.  In that case the rule               of  res judicata was applied to litigation  in               land  acquisition proceedings.  In  that  case               the  general principles of law bearing on  the               rule  of res judicata, and not the  provisions               of s. 1 1 of the Code of Civil Procedure, were               applied to the case.  The rule of res judicata               is  meant  to  give  finality  to  a  decision               arrived at after due contest and after hearing               the parties interested in the controversy." This case made the decision in a former petition under  Art. 32  of  the  Constitution res  judicata  in  the  subsequent petition  under  the same article with respect to  the  same matter. In  Daryao’s  Case(3) this Court had again  dealt  with  the question  of  the  applicability of  the  principle  of  res judicata in writ proceedings.  The matter was gone.  through



very exhaustively and the final conclusions are to be  found at p. 592.  We may summarise them thus :               1.    If   a  petition  under  art.   226   is               considered on the merits as a contested matter               and is dismissed, the decision would  continue               to  bind  the parties unless it  is  otherwise               modified  or  reversed  by  appeal  or   other               appropriate proceedings permissible under  the               Constitution.               2.    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.               3.    If the petition under art. 226 in a High               Court  is  dismissed  not on  the  merits  but               because  of the laches of the  party  applying               for the writ or because it is held that               (1)   [1961] S.C.R. 96.                (2) [1953] S.C.R. 154.                (3) [1962] 1 S.C.R. 574.                570               the party had an alternative remedy  available               to  it,  the dismissal of  the  writ  petition               would  not  constitute a bar to  a  subsequent               petition under art. 32.               4.    Such a dismissal may however  constitute               a  bar to a subsequent application under  art.               32  where and if the facts thus found  by  the               High  Court be themselves relevant even  under               art. 32.               5.    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 on the nature of               the order.  If the order is on the merits,  it               would be a bar.               6.    If  the petition is dismissed in  limine               without  a  speaking  order,  such   dismissal               cannot  be  treated as creating a bar  of  res               judicata.               7.    If   the   petition  is   dismissed   as               withdrawn, it cannot be a bar to a  subsequent               petition  under  art. 32 because,  in  such  a               case, there had been no decision on the merits               by the Court. In  arriving at the above quoted conclusions the Court  made certain  observations which are helpful in  determining  the question in this case about the decision on a writ  petition operating as res judicata in a subsequent regular suit.  The basis for the rule is described thus at p. 582 :               "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 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."               571 Again, it was said at p. 584 :               "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." Limitations to the applicability of this general rule of res judicata  are indicated at P. 585 :               "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  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."               The Court also said earlier at p. 585               "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." It can be said with equal force that a regular suit for  the determination of the matter which had been decided on merits by the High Court or this Court on a writ petition cannot be given  the status of a de facto appeal against the order  of the  High Court or of this Court.  A solemn declaration  and order by the Court in its extra-ordinary jurisdiction is not to  be  set at nought by a Court  of  ordinary  jurisdiction whose  decisions are subject to the appellate or  revisional jurisdiction of that Court. The   contention   that  the  remedies  available   to   the petitioners  to move the High Court under art. 226 and  this Court  under  art.  32 are alternate  remedies  and  so  the adoption of one remedy cannot bar the adoption of the other, which was urged in the aforesaid case, was negatived, and it was observed at p. 591               "In  such a case the point to consider  always               would  be what is the nature of  the  decision               pronounced by a                573               of  res  judicata altogether in  dealing  with               writ petitions filed by citizens alleging  the               contravention  of  their  fundamental  rights.               Considerations  of  public  policy  cannot  be               ignored in such cases, and the basic  doctrine               that  judgments pronounced by this  Court  are               binding and must be regarded as final  between



             the  parties in respect of matters covered  by               them, must receive due consideration." These remarks can apply with greater force when in a regular suit  a  party desires to obtain an order which  may  be  at variance  with the orders pronounced by the High Court in  a writ  petition on matters not concerning fundamental  rights under the Constitution. The  appellant  relies on the case reported as  Smt.   Bimla Chopra v. Punjab State(1) in support of its contention  that a decision on a writ petition cannot operate as res judicata on  the points in dispute between the parties in  the  civil suit.  The decision was based on two grounds : (1) that  the jurisdiction  of  the High Court under art. 226 and  of  the Supreme  Court under art. 32 is almost  co-extensive,  while the jurisdiction of the High Court under art. 226 and of the civil  Court  in a regular civil suit cannot be said  to  be almost co-extensive and (2) that the High Court in disposing of writs is not required to go into the detailed examination of facts while in regular civil suits facts can be  examined meticulously.   It was further held that the  plaintiff  can take such grounds in the civil suit which he could take in a writ  petition.  A decision of the Court in a writ  petition can  be res judicata only with respect to the matters  which have  been  decided on merits by the High Court or  by  this Court.  Courts do not usually enter into disputed  questions of  fact but there is no bar to their doing so if they  feel disposed to enter into such facts and arrive at a conclusion with  respect  to them.  We do not see why all  the  grounds which can be urged in support of or against a matter  raised for  decision  in  a writ petition cannot be  urged  in  the proceedings on it.  It is true that the jurisdiction of  the civil Court and the High Court or this Court cannot be  said to be Co-extensive, but it is plain that the civil Court, in the  exercise  of  its  jurisdiction,  is  subject  to   the appellate  or revisional jurisdiction of the High Court  and this Court.  We do not consider the reasons for holding that a decision in a writ-petition cannot operate as res judicata in a subsequent regular suit to be sound’ (1)(1963) 65 Punj.  L.R. 945. Sup./65-3 574 and  are  of opinion that the Punjab Case has  been  wrongly decided. On the other hand, the Bombay High Court has held in Manahem v.  Union  of India(") that a decision on merits in  a  writ petition would operate as res judicata in a subsequent suit. As a result of the above discussion, we are of opinion  that the  provisions  of  s. 11 C.P.C. are  not  exhaustive  with respect  to  an earlier decision operating as  res  judicata between  the same parties on the same matter in  controversy in  a  subsequent  regular  suit and  that  on  the  general principle of res judicata, any previous decision on a matter in   controversy,  decided  after  full  contest  or   after affording  fair  opportunity to the parties to  prove  their case by a Court competent to decide it, will operate as  res judicata in a subsequent regular suit.  It is not  necessary that the Court deciding the matter formerly be competent  to decide the subsequent suit or that the former proceeding and the  subsequent  suit  have the same  subject  matter.   The nature of the former proceeding is immaterial. We do not see any good reason to preclude such decisions  on matters  in controversy in writ proceedings under arts.  226 or 32 of the Constitution from operating as res judicata  in subsequent regular suits on the same matters in  controversy between the same parties and thus to give limited effect  to



the  principle  ,of  the finality of  decisions  after  full contest.  We therefore hold that on the general principle of res  judicata,  the  decision of the High Court  on  a  writ petition  under  art. 226 on the merits on  a  matter  after contest will operate as res judicata in a subsequent regular suit  between  the  same parties with respect  to  the  same matter. We may make it clear that it was not necessary, and we  have not  considered, whether the principles of constructive  res judicata can be invoked by a party to the subsequent suit on the  ground that a matter which might or ought to have  been raised in the earlier proceeding was not so raised therein. We therefore dismiss this appeal with costs. Subba  Rao,  J. I have persued the judgment prepared  by  my learned brother Raghubar Dayal, J. I regret my inability  to agree.  I shall briefly give my reasons. Raghubar  Dayal,  J.,  has stated the  facts  fully  in  his judgment.  I  need  not  restate  them.      The  few  facts relevant to the question (1)  A.I.R. 1960 Bom. 196. 575 raised  are  these : The appellant filed a petition  in  the Bombay High Court under Art. 226 of the Constitution raising the question that he was discharged as surety, and the  High Court negatived his contention.  In the suit from which  the present  appeal arises he again raises the plea that he  was discharged as surety : in other words, he seeks to reopen in the present suit the finding given by the High Court in  the writ  petition.   The question is whether the  appellant  is barred  by  res judicata to raise the said question  in  the suit. Section  11  of the Code of Civil Procedure deals  with  the doctrine of res judicata in the context of a suit.  It says, inter  alia,  that 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. To  invoke  this  doctrine,  the  section  lays  down   many conditions.  The most essential condition is that the matter in  question should have been directly and substantially  in issue in a former suit.  The expression "suit" has not  been defined in the Code, but S. 26 thereof says that every  suit shall  be instituted by the presentation of a plaint  or  in such  other manner as may be prescribed.  It is  not  argued that an application under Art. 226 of the Constitution is  a suit  within the meaning of s. 26 or S. 11 of the Code.   It follows,  and indeed it is not disputed, that s. 11  of  the Code does not bar the appellant from raising the question of the discharge of his suretyship again in the present suit. But  it  is said that under the general  principles  of  res judicata  the Court would be barred to try his suit  on  the said issue.  When the Code of Civil Procedure enacted s. 1 1 prescribing precisely when an earlier decision would be  res judicata  in  a suit, it is not open to invoke  the  general principles  of res judicata in the context of  a  subsequent suit,  though the conditions laid down in the  section  were not  satisfied,  for  otherwise  the  section  would  become nugatory : it would also introduce anomalies.  A decision in a  previous suit would not be res judicata in  a  subsequent suit  unless the stringent conditions laid down in s. 11  of the Code were satisfied; whereas a decision in a  proceeding which  was not a suit would be res judicata whether  or  not the said conditions were complied with.  If the  fundamental requisites of res judicata were satisfied, a decision, if it fell  under  s.  II  of Code, would be  res  judicata  in  a subsequent suit; and even if it did not fall thereunder,  it



would equally be res judicata.  That could not have been the intention of the Legislature. 576 The  cases cited at the Bar do not compel me to  accept  the construction which would lead to that result.  The decisions of the Judicial Committee in Ramachandra Rao v.  Ramachandra Rao(1)  and Mst.  Bhagwati v. Mst.  Ram Kali(2) and of  this Court  in  Rai  Lakshmi  Dasi  v.  Banamali  Sen(3)  may  be explained  on the ground that the proceeding under s. 18  of the  Land Acquisition Act in the District Court wherein  the title  of  the  claimants  would be put  in  issue  were  in substance  a suit.  The decision of this Court in Pandit  M. S. M. Sharma v. Dr. Shree Krishna Sinha (4 ) , Daryo v.  The State  of  U.P.(5), The Amalgamated Coalfields Ltd.  v.  The Janapada Sabha, Chhindwara(6) and Devilal Modi v. Sales  Tax Officer, Ratlam(7) can be distinguished on the footing  that the question of res judicata arose in an application  either under Art. 226 or Art. 32 of the Constitution     and not in a suit., On the other hand, in L. Janakirama lyer v.  P.  M. Nilakanata Iyer(8) this Court definitely ruled :               "Where s. 11 is thus inapplicable it would not               be  permissible  to  rely  upon  the   general               doctrine of res judicata.  We are dealing with               a  suit  and  the only  ground  on  which  res               judicata can be urged against such a suit  can               be the provisions of S. 1 1 and no other." These observations, in my view, correctly represent the  law on the subject.  This view, while it does not make S. 1 1 of the  Code of Civil Procedure an unnecessary provision,  does not  also  lead  to  any  practical  difficulties,  for  the decision  of  a  High Court on a question  of  law  will  be binding  as  an  authority on  subordinate  Courts  and  its decision on a question of fact will rarely be differed  from by the said Courts. I would, therefore, hold that the decision given by the High Court in the writ petition would not preclude the Court from deciding  the same question on merits in the  present  suit. The  order of the High Court is set aside and the appeal  is remanded  to  the  High  Court for  disposal  on  merits  in accordance with law.  Costs will abide the result.                            ORDER In accordance with the Opinion of the Majority the Appeal is dismissed with costs. (1)  [1922] L.R. 49 I.A. 129. (2) L.R. 66 I.A. 145. (3) [1953]1 S.C.R. 154. (4)  [1961] 1 S.C.R. 96. (5)  [1962] 1 S.C.R. 574. (6)  [1963] Supp. (1) S.C.R. 172. (7)  [1965] 1 S.C.R. 686. (8)  [1962] Supp.  1 S.C.R. 206. 577