# DARYAO AND OTHERS v. THE STATE OF U. P. AND OTHERS

- **Citation:** [1962] 1 S.C.R. 574
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Case number:** Writ Petitions Nos. 66 and 67 of 1956
- **Bench:** P. B. G.Ajendragadkar, A. K. Sarkar, K. N. Wanchoo, K. C. Das Gupta, N. Rajagopala Ayyangar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/daryao-and-others-v-the-state-of-u-p-and-others-2150
- **Pages:** 22

## Headnote

Fundamental Right-Res juaicata-Dismissal of writ petition
by High Court-If and when bar to petition in Supreme CourtConstitution of India, Arts. 32, 226.
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 fundan1ental right was proved or contraw
vened or that its contravention was constitutiona11y 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 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 -
1 S.C.R. SUPREME COURT REPORTS
575
under Art. 226 entertain a petition under Art. 32 of the Conr96r
stitution.
Citizens have ordinarily the right to invoke Art. 32 for Daryao &- Others
appropriate relief if their fundamental rights are illegally or
v.
unconstitutionally violated and it is incorrect to say that Art. The State 0!. U. P.
32 merely gives this Court a discretionary power as Art. 226
& Otheis
does to the High Court.
Basheshar Nath v. Commissioner of Income-tax, Delhi and
Rajasthan, [r959] Supp. I li.C.R. 528, referred to.
"-
Laxmanappa Hanumantappa Jamkhandi v. The Union of
India, [1955] r S.C.R. 769, and Diwan Bahadur Seth Gopal Das
Mohta v. The Union of India, [r955] r 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 (r). 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.
Ramesh Thappar v. The State of Madras, [1950] S.C.R. 594,
referred to.
Even so the general principle of res judicata, which has its
founrtation 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 Constitition.
Duchess of Kingston's case, 2 Smith Lead. Cas. r3th Ed .
644, referred to.
The binding character of judgments of courts of competent
jurisdiction is in essence a part of the rule of Jaw 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]
I S.C. R. 96 and Raj Lakshmi Dasi v. Banamali Sm, [1953] S.C.R.
I 54, relied on.
Janardan Reddy v. The State of Hyderabad, [r95r] S.C.R. 344,
Syed Qasim 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 Guiab Koer v. Badshah
Bahadur, (1909) 13
C.W.N. rr97, held inapplicable.
576
SUPREME OOURT REPORTS
[1962]
r96r
Consequently, (r) where the petition under Art. 226 is
considered on the merits as a contested matter and dismissed by
Daryao & Others the High Court, the decision pronounced is binding on the parv.
ties unless modified or reversed by appeal or other appropriate
1'he State of U. T. proceedings under the Constitution;
& Others
(2) Where the petition under Art. 226 is dismissed not on
the merits but because :of !aches of the party applying for the
\Vrit or because an alternative remedy is available

## Text

_Characters 0–39,852 of 50,128. This is a partial read: ask again with offset=39852 for what follows._

574
SUPREME COURT REPORTS
[1962]
1961
Amending Act making notices which were in accordance with the previous law ineffective. In these cirJivabkai
h
C l
H h C
Pu,,holtam
cumstances t e
a cutta
ig
ourt was right in
v.
holding that the amendment did not affect notices
Chhagan Ka•son already given. No such question however arises in
& Othm
the present case. The period of notice is the same
before and after the amendment in the present case,
Wanchoo f.
and what we have to sec is whether the crucial date
for the application of the new sub-section (2-A) is the
date of the notice or the date of the termination of
the tenancy. We have already held that that date
must be the date of the termination of the tenancy.
In the circumstances the appeal fails and is hereby
dismissed with costs.
klarc!t 27.
Appeal dismissed.
DARYAO AND OTHERS
v.
THE STATE OF U. P. AND OTHERS
(and Connected Petitions)
(P. B. G.AJENDRAGADKAR, A. K. SARKAR,
K. N. WANCHOO, K. C. DAS GUPTA and
N. RAJAGOPALA AYYANGAR, JJ.)
Fundamental Right-Res juaicata-Dismissal of writ petition
by High Court-If and when bar to petition in Supreme CourtConstitution of India, Arts. 32, 226.
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 fundan1ental right was proved or contraw
vened or that its contravention was constitutiona11y 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 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 -
1 S.C.R. SUPREME COURT REPORTS
575
under Art. 226 entertain a petition under Art. 32 of the Conr96r
stitution.
Citizens have ordinarily the right to invoke Art. 32 for Daryao &- Others
appropriate relief if their fundamental rights are illegally or
v.
unconstitutionally violated and it is incorrect to say that Art. The State 0!. U. P.
32 merely gives this Court a discretionary power as Art. 226
& Otheis
does to the High Court.
Basheshar Nath v. Commissioner of Income-tax, Delhi and
Rajasthan, [r959] Supp. I li.C.R. 528, referred to.
"-
Laxmanappa Hanumantappa Jamkhandi v. The Union of
India, [1955] r S.C.R. 769, and Diwan Bahadur Seth Gopal Das
Mohta v. The Union of India, [r955] r 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 (r). 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.
Ramesh Thappar v. The State of Madras, [1950] S.C.R. 594,
referred to.
Even so the general principle of res judicata, which has its
founrtation 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 Constitition.
Duchess of Kingston's case, 2 Smith Lead. Cas. r3th Ed .
644, referred to.
The binding character of judgments of courts of competent
jurisdiction is in essence a part of the rule of Jaw 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]
I S.C. R. 96 and Raj Lakshmi Dasi v. Banamali Sm, [1953] S.C.R.
I 54, relied on.
Janardan Reddy v. The State of Hyderabad, [r95r] S.C.R. 344,
Syed Qasim 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 Guiab Koer v. Badshah
Bahadur, (1909) 13
C.W.N. rr97, held inapplicable.
576
SUPREME OOURT REPORTS
[1962]
r96r
Consequently, (r) where the petition under Art. 226 is
considered on the merits as a contested matter and dismissed by
Daryao & Others the High Court, the decision pronounced is binding on the parv.
ties unless modified or reversed by appeal or other appropriate
1'he State of U. T. proceedings under the Constitution;
& Others
(2) Where the petition under Art. 226 is dismissed not on
the merits but because :of !aches of the party applying for the
\Vrit or because an alternative remedy is available to 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 them__.
selves 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.
ORIGINAL JURISDICTION: Writ Petitions Nos. 66 and
67 of 1956, 8 of 1960, 77of1957, 15 of 1957 and 5 of
1958.
Writ Petitions under Article 32 of the Constitution
of India for the enforcement of Fundamental Rights.
N aunit 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 ,V, Ps. Nos. 66 and 67 of 1956.
C. B. Agarwala and J(. P. Gupta, for the petitioner
in W. P. No. 8 of 1960.
Veda Vayasa and 0. P. Lal, for respondent in \V. 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 ofl957.
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.
•
,,..;. :
1 S.C.R. SUPREME COUR'r REPOR'rs
577
B. R. L. Iyengar, for the petitioner in W. P. No.
,96r
5 of 1958.
Da,yao &· Othm
C. K. Daphtary, Solicitor-General for India, R. Gan?'-
'v.
pathy Iyer and R. H. Dhebar, for the respondent m Tlw Stafo of u. P.
W. P. No. 5 of 1958.
&· Othm
1961. March 27.
The Judgment of the Court was
delivered by
GAJENDRAGADKAR, J.-These six writ petitions filed Gojend,agadka' .f.
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. 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
SUPREME COURT REPORTS
[1962]
z96z
disturbances in the Western District of Uttar Pradesh
D
-::- 0 h
in 1947, the petitioners had to leave their village in
aryao
<.!.>'
I ers
.
v'.
July, 1947; later m November, 1947, they returned
The State of u. P. but they found that during their temporary absence
& Others
respondents 3 to 5 had entered in unlawful possession
. --
of the said land. Since the said respondents refused
Ga1endrngadka' J. 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 p~titioner'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 thats. 20 has again been
amended by s. 4 of Act XX of 1954. It is under these
..
•
•
..
'
J
1 S.C.R. SUPREME COURT REPORTS
579
circumstances that the petitioners have filed the prez96z
sent petition und~r Art. 32 on March 14, 19?~· It is Daryao-;: Others
plain that at the time when the present pet1t10n has
v.
been filed the period of limitation prescribed for an The State of u. P.
appeal under Art. 136 against the dismissal of the
& Others
petitioners' petition before the Allahabad High· Court
.
-
had already expired. It is also clear that the grounds GaJendragadkar J.
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 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 Constitution. It is also suggested that the right to move
which is guaranteed by Art. 32( l) 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
SUPREME COURT REPORTS
[1962]
r961
made in
two reported decisions of this Court.
D
--;;;:- Oth
In Laxmanappa Hanumantappa Jamkhandi v. The
aryao v.
ers Union of India & Another (1), this Court held that as
The Sta:e of u. P. there is a special provision in Art. 265 of the Constitu-
& Others
tion that no tax shall be levied or collected except by
. --
authority of law, cl. 1 of Art. 31 must be regarded as
GaJendrngadhar f. 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 conferred 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 observe 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 thut when this position ·was p.!lt 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 M ohta
v. The Union of India & Another (2). It will, however,
be noticed that the observatfons m1ide 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 under Art. 32 is a matter
of discretion, and that even if the petitioner proves his
fundamental rights and their unconstitutional infringement this Court n.evertheless can refuse 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 (') 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
II) [1955] I S.C.R. 76Q, 772, 773·
(2) [1955] I S.C.R. 773, 776.
t3) [t959] Supp. I S.C.R. 528.
..
•
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I S.C.R. SUPREME COURT REPORTS
581
difference in approach, seems to emphasise the basic
z96z
importan~e o.f the fundamental rights g?~ranteed by Da,vao-;: Others
the Const1tut10n and the effect of the dems10n appears
·
v.
to be that the citizens are ordinarily entitled to appro- The State of u. P.
priate relief under Art. 32 once it is shown that their
& Othm
fundamental rights have been illegally or unconstitu-
-
tionally violated. Therefore, we are not impressed by Gajend,agadka' f.
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
ArL 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 i8 entitled to do under Art. 32( I) 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 Con.rt 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 citizens, and as a result of the said guarantee this
582
SUPREME COURT REPORTS
[1962]
'96'
Court has been entrusted with the solemn task of upD
,
Oth
holding the fundamental rights of the citizens of this
aryao
~
ers
.
.
v.
country. The fundamental rights are mtended not
The stato of u. P. only to protect individual's rights but they are based
& Othm
on high public policy.
Liberty of the individual and
.
-
the protection of his fundamental rights are the very
Ga;endragadkar J. 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
Ramesh 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 such rights". Thus the right given to the citizen to
move 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
.iitdicata this aspect of the matter had no doubt to be
borne in mind.
But, is the rule of res j11.dicata 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 judica~a n,s
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
(r) [r950J S.C.R. 594-
..
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I S.C.R. SUPREME COURT REPORTS
583
founded on considerations of public policy. It is in
r96r
the interest of the public at large that a finality should 0
-. "- 0 h
attach to the binding decisions pronounced by Courts "'Y"
0
:;
t "'
of competent jurisdiction, and it is also in the public The state of u. P.
interest that individuals should not be vexed twice
e;. Othm
over with the same kind of litigation. If these two
-
principles form the foundation of the general rule ofGajendrngadka• /.
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
.,,f
William de Grey, (afterwards Lord Walsingham) in
the leading Duchess of Kingston's case(').
Said Sir
vVilliam.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"('). Hals bury also adds that the doctrine applies
. .!
..
equally in all courts, and it is immaterial in what
11
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 Jaw pervading every well regulated system
of jurisprudence, and is put upon two grounds embodied in various maxims of the common law; the one,
. ...i,
(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
SUPREME COURT REPORTS
[1962]
r96z
public policy and necessity, which makes it to the
D
~
0 h
interest of the State that there should be an ,llPd to
"'Y"
0 v.·
1 "'litigation -
interest republicae ut sit .finis litium; the
The State of u. t'. other, the hardship on the individual that he should
&. Othm
be vexed twice for the same cause-nemo debet bis
. --
vexari pro eadem causa" (1 ). In this sense the rec6gnisGa1end,agadk"' J. cd basis of the rule of res judicata is different from
that of technical estoppel. "Estoppel rests on equitable principles and res judicata rests on 'maxims
which a.re 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 j11dgment 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 c
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 oflaw, and the rule of!aw obviously is the basis
of the administration of justice on which the Constitution lays so much emphasis. As Halsbury has observed "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"(').
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
(I) Corpus Juris, Vol. 34, p. 743·
(2) Ibid. p. 745.
(3) Halsbury's Laws of England, 3rd Ed., Vol. 22, p. 780, par:igrapb 166')•
I
•,.
..
.. ·
...
-,
1 S.C.R.
SUPREME COURT REPORTS
585
action between the same parties for the same cause in
'96'
the same conrt or in another court, whether the latter D
-~- Olk
l
l
. . d. t.
Tl .
I
.
aryao Lers
rns concurrent or ot 1er iuris 10 .wn.
HS rue rn
v.
subject to the limitation that the judgmtint in then,, stat~ of u. P.
former action must have been rendered by a court or
&, Others
tribunal of competent jurisdiction" (1).
·, "It is, how-
-
ever, essential that there should have been a judicial Gajendragadkar f.
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 appelh1te 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 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. Skree Krjshna
Sinha ('). In that case the petitioner had moved thi~
(1) Corpus Juris Secundum, Vol. 50 (Judgments), p. 603.
\~\\bid.. p. 608.
''
(3) [1961] 1 S.C.R. 96.
74
586
SUPREME COURT REPORTS
[1962]
1961
Court under Art. 32 and claimed an appropriate writ
against the Chairman and the Members of the ComDa,yao &
Others --·
f P · "l
f th St t L · l t'
A
bl
m1ttee o
r1v1 eges o
e
a e eg1s a 1ve ssem · y.
Th• s1a1:-_,,f u. r. The said petition was dismissed. Subsequently he filed
a;. Others
another petition substantially for the same relief and
. -
substantially on the same allegations. One of the
Ga;endrn~adka' J. 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 disput&- was different,
because the jadgment 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 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.
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 ):"ule
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 present problem was
posed but not finally or definitely answered. In
Janardan Reddy v. The State of Hyderabad (2), it
(I) (1953}S.C.R. 154.
(2) [1951] S.C.R. 344, 370.
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1 S.C.R. SUPREME COURT REPORTS
587
appeared that against the decision of the High Court
'96'
a petition for special leave had been filed but the D
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·
d
d h"
f J]
db
t"
aryao ~·
ers
same ha
een reJecte an t 1s was o owe
y pe 1v.
tions under Art. 32. These petitions were in fact The state of u. P.
entertained though on the merits they were dismis-
& Others
sed, and in doing so it was observed by Fazl Ali, J.,
.
who delivered the judgment of the Court, that "it Ga1endragadkar J.
may, however, be observed that in this case we have
not considered it necessary to decide whether an
application under Art. 32 is maintainable after a similar application under Art. 226 is dismissed by the High
Court, and we reserve our opinion on that question".
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 (')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
(I) [1953] S.C.R. 589.
(z) [1956] S.C.R. 533.
588
SUPREME COURT REPORTS
[1962]
'96'
to try the second suit or proceeding, and since the
Dar ao---;: OthersHigh Court cannot entertain an application under
Y
v.
Art. 32 its decision cannot be treated as res judicata
Th• State of u. P. for the purpose of such a petition. It is doubtful if
&· Others
the technical requirement prescribed by s. 11 as to the
. -- k
competence of the first Court to try the subsequent
Ga;endragad ar ].
't.
t" 1
t f ti
I
1 f
. a·
SUI rs an essen rn par o
ie genera ru e o res J1l icata; but assuming that it is, in substa.nce 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 under
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 on 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 !aches and in that sense the issue of a high
prerogative writ may 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
..
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1 S.C.R. SUPREME COURT REPORTS
589
the petitioner has a fundamental right which has been
r96r
illegally or unconstitutionally contravened. It is not D
--;;: Oth
unlikely that if a petition is filed even under Art. 32
aryao v. ·
ers
after a long lapse of time considerations may arise The state of u. P.
whether rights in favour of third parties which may
& Others
have arisen in the meanwhile could be allowed to be
affected, and in such a case the effect of !aches on the Gajendrngodkar J.
part of the petitioner or of his acquiescence 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 !aches 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 juiiicata. 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) (') that "an applicant for a writ
(1) (1958) 3 All E.R. Q.B.D. 625.
590
SUPREME COURT REPORTS
[1962)
i96r
of habeas corpus in a criminal matter who has once
D
--;- 0 h
been heard by a Divisional Court of the Queen's
aryao ""
t ers B
h D' ' ·
·
t
t"tl d t b h
d
d
v.
enc
iv1s10n lS no en i e
o e ear
a secon
The State of u. P, time by another Divisional Court in the same Divi-
& Others
sion, since a decision of a Divisional Court of the
. . -
Queen's Bench Division is equivalent to the decision
Ga;cndrngadkar J. of all the judges of the Division, just as the decision
of one of the old common law courts sitting in bane
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 V>Tit, 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 another. The said decision has been subsequently applied
in Re Hastings (No. 3) (1) to a writ petition filed for
habeas corpus in a Divisional Court of the 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
(>) [1959] I All E.R. Ch.D. 698.
•
~.
1 S.C.R.
SUPREME COURT REPORTS
591
alternate remedies and so the adoption of one remedy
z96z
cannot bar the adoption of the other. These remedies D
--;; Oth
.
b
.
b
f a.yao ~
ers
are not exclusive ut are cumulative and so no ar o
v.
res judicata can be pleaded when a party who has The state of u. P.
filed a petition under Art. 226 seeks to invoke the
& Others
jurisdiction of this Court under Art. 32. In support of
. --
this contention reliance has been placed on the deci- Ga;endragadhar f.
sion of the Calcutta High Court in Mussammat Gulab
Kaer 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.