# ' GULABCllAND CBHOTALAL PARJKll v. SI'ATE OF BOMBAY (NOW GUJARAT) December 14. 1964

- **Citation:** [1965] 2 S.C.R. 547
- **Court:** Supreme Court of India
- **Decided:** 1965
- **Bench:** A. K. SAlutAR, K. SullBA RAO, Raghubaa Dayal, N. Rajagopala Ayyangaa, J. R. MUOHOLKAll
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/gulabclland-cbhotalal-parjkll-v-si-ate-of-bombay-now-gujarat-december-14-1964-3426
- **Pages:** 30

## Headnote

Practice and · Procedun-Dtcisltm on writ application under Art.
226--Suit /or same re/leJ-1/ '-!ed by res judicata.
1be appellant prayed for the issue of a writ of mandamus and a writ
of prohibition against the respondent-state in a writ application filed
C
io Ifie High Court, on the ground that bis liability as surety for some con·
~
stood cfucbarged on account of a particular action of the State.
1be High Court diS!Dissed the petition on merits after full contesL
He
thereupon filed a suit against the respondent and raised the same plea
that be was discharged from liability as surety on the same grounds. The
1rial court, the first appellate Court and the High Court held that the
suit was barred by ru judicata in view of the judgment of the High Court
D
on the writ petition. In appeal to the Supreme Court,
HELD (Per Sarkar, Raghubar Dayal,
Rajagopala Ayyangar and
Mudbolkar JJ.) :
On general principles of res ;Wlicata, 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 ,., judlcata in a
...._._,t regular suit between the same parties with respect to the
-
matter. [574 E-F]
E
The provisions of s. 111 Civil Procedure Code, 1908, are not ezhaus·
dw with nospec:t tO an earlier decision operating as ru judicata between
the llDle parties on the same matter in controversy in a subsequent regular
lllit and, on the general principle of r<• judlcata, any previous decision
on a matter in controversy decided after full contest or after affording
fair "l.'portunity to tho parties to prove their case by a court competent
to decide it, will operate u ru judicata in a subsequent regular suit. It is
not -.y that the court deciding the matter formerly be competent
F
to decide the subsequent suit or that the former 1,>roceeding and the subsoqumt suit have the same subject matter. The nature of the former pro-
-iing is immaterial. There is, therefore, no good reason to preclude
anch clCcisions on matters In controversy in writ proceedings under Arts.
226 or 32 from operating 81 ru judicata in subsequent regular suits on
the l8llle matters in controversy, between the same parties, and thus to
aiYo limited dfect to the principle of finslity of decisions after full com-.
['73 11-E]
G
Cue law reviewed.
Per Sobba Rao, J. (dbmulng) : 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 amo quation on merits in the suit. [576 FJ
This view, while it does not mate s. 11 of the Code an unneceswy
proftsioo, doee not lead to any practical difficulties, for, the decision of
H
die Hijh Court on a question of law will be binding as an authority on
Subordiflll1e Courts and its decision on a question of fact will rarely be
dilfsed from by the said courts. [576 B-F]
Ome law CCllllidcml.
548
CIVIL APPELIATB hlmDcnoH: Civil Appeal N>_ 670 m A
1963.
Appeal by special )caw: from tbc jndgmma and dcm:e dmd
Man:b 31, 1958 of 1hc Bombay High Comt in Second Appeals
No. 1480 of 1957.
S. '[. Demi and I. N. SlrTOfJ, b' the !lppdlant
B
S. G. PlllWm'dhan and R.H. Dhebar, b' tbe rap•ideut ..
'lbti Judgment of Sarbr, Ragladm Da.Jal, ~
Ayyangar and Mndbolbr., H. w dditued by Rag1mlJar DaJnI J.
Subba Rao, J. ddDeml a dj
11iHg Opi11iom
Rad '
DaJlll, L
This appeal.. by special lr:avc. mn tllc
question whether a clrv:isjng ~ tllc High Comt llll nx:.rifs m a
certain Dlllltel' aftec aa1k:&f in a wDt pd)IMm undrL Ait. 226 of
the Constitution opcatt:s as ra ;w&r11a in a regullu: suit with
respect to the same matter berwrm 1hc S1111JC pmirs.
c
The facls k:adjgg to the ll{lllClll me tfJae.. The ll(lpCllw D
stood SURlly foc a nmnbcr of n•d• • t•s -.ID &ad tUr:n oonfrw:IS
in 1947 for .fdliDg timbec mes ml tQllOfing limbet in warious
fomsts in the eutwbilc Slate of Baria. The u•d•am 1l'ae tab::a
as a i:esult of auctions which took pbce Ulllllll: 1bl: "Owliti1ts of
Auction Sale of Fonds in the Baria Slate in tbc

## Text

_Characters 0–39,920 of 73,909. This is a partial read: ask again with offset=39920 for what follows._

A
'
GULABCllAND CBHOTALAL PARJKll
v.
SI'ATE OF BOMBAY (NOW GUJARAT)
December 14. 1964
547
8
(A. K. SAlutAR., K. SullBA RAO, RAGHUBAA DAYAL,
N. RAJAGOPALA AYYANGAA AND J. R. MUOHOLKAll, JJ.]
Practice and · Procedun-Dtcisltm on writ application under Art.
226--Suit /or same re/leJ-1/ '-!ed by res judicata.
1be appellant prayed for the issue of a writ of mandamus and a writ
of prohibition against the respondent-state in a writ application filed
C
io Ifie High Court, on the ground that bis liability as surety for some con·
~
stood cfucbarged on account of a particular action of the State.
1be High Court diS!Dissed the petition on merits after full contesL
He
thereupon filed a suit against the respondent and raised the same plea
that be was discharged from liability as surety on the same grounds. The
1rial court, the first appellate Court and the High Court held that the
suit was barred by ru judicata in view of the judgment of the High Court
D
on the writ petition. In appeal to the Supreme Court,
HELD (Per Sarkar, Raghubar Dayal,
Rajagopala Ayyangar and
Mudbolkar JJ.) :
On general principles of res ;Wlicata, 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 ,., judlcata in a
...._._,t regular suit between the same parties with respect to the
-
matter. [574 E-F]
E
The provisions of s. 111 Civil Procedure Code, 1908, are not ezhaus·
dw with nospec:t tO an earlier decision operating as ru judicata between
the llDle parties on the same matter in controversy in a subsequent regular
lllit and, on the general principle of r<• judlcata, any previous decision
on a matter in controversy decided after full contest or after affording
fair "l.'portunity to tho parties to prove their case by a court competent
to decide it, will operate u ru judicata in a subsequent regular suit. It is
not -.y that the court deciding the matter formerly be competent
F
to decide the subsequent suit or that the former 1,>roceeding and the subsoqumt suit have the same subject matter. The nature of the former pro-
-iing is immaterial. There is, therefore, no good reason to preclude
anch clCcisions on matters In controversy in writ proceedings under Arts.
226 or 32 from operating 81 ru judicata in subsequent regular suits on
the l8llle matters in controversy, between the same parties, and thus to
aiYo limited dfect to the principle of finslity of decisions after full com-.
['73 11-E]
G
Cue law reviewed.
Per Sobba Rao, J. (dbmulng) : 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 amo quation on merits in the suit. [576 FJ
This view, while it does not mate s. 11 of the Code an unneceswy
proftsioo, doee not lead to any practical difficulties, for, the decision of
H
die Hijh Court on a question of law will be binding as an authority on
Subordiflll1e Courts and its decision on a question of fact will rarely be
dilfsed from by the said courts. [576 B-F]
Ome law CCllllidcml.
548
CIVIL APPELIATB hlmDcnoH: Civil Appeal N>_ 670 m A
1963.
Appeal by special )caw: from tbc jndgmma and dcm:e dmd
Man:b 31, 1958 of 1hc Bombay High Comt in Second Appeals
No. 1480 of 1957.
S. '[. Demi and I. N. SlrTOfJ, b' the !lppdlant
B
S. G. PlllWm'dhan and R.H. Dhebar, b' tbe rap•ideut ..
'lbti Judgment of Sarbr, Ragladm Da.Jal, ~
Ayyangar and Mndbolbr., H. w dditued by Rag1mlJar DaJnI J.
Subba Rao, J. ddDeml a dj
11iHg Opi11iom
Rad '
DaJlll, L
This appeal.. by special lr:avc. mn tllc
question whether a clrv:isjng ~ tllc High Comt llll nx:.rifs m a
certain Dlllltel' aftec aa1k:&f in a wDt pd)IMm undrL Ait. 226 of
the Constitution opcatt:s as ra ;w&r11a in a regullu: suit with
respect to the same matter berwrm 1hc S1111JC pmirs.
c
The facls k:adjgg to the ll{lllClll me tfJae.. The ll(lpCllw D
stood SURlly foc a nmnbcr of n•d• • t•s -.ID &ad tUr:n oonfrw:IS
in 1947 for .fdliDg timbec mes ml tQllOfing limbet in warious
fomsts in the eutwbilc Slate of Baria. The u•d•am 1l'ae tab::a
as a i:esult of auctions which took pbce Ulllllll: 1bl: "Owliti1ts of
Auction Sale of Fonds in the Baria Slate in tbc S:mmrt JQr 2002" E
com:spondiDg to 194>46 A.D .. dlough in the plaint tbc:e llODditious wen: 1efencd to as Forest Aw:tinn Ruk:s. On April 1.
1948, the appellant pu" 11m an applM ati., to the Dam. Sll!fe
stating tberl:in that celliliii bmtas -i mmey to the +arious
contiacton meatiou:d in 1hc iip}iJio ••i• and ptajing that they be
restrained to pay the amouut due to the ClllJlr.M:lOm 1IDlilt futtlltl Jr
Oidcrs and that those btotas and CIODba:bs be ai;o IQIUaintd
from directly removing the cioubadlllll' ~
goods stmed in. the
godowns at Piplod. Baria and Jimu....Ja without the pe111tri•;m of
the State Govu mnmt It w.n fmdtt DM\ldM.....t in the 8{IPlica.
lion that if those wntraclols would aniWt at an ammgemeot Wit
him and carry out tho Ya11ivat. be would do the needful in that G
behalf. 0n 1his applii ;alM.. it appeais. the Slate GoVt:OHllJO;nt
issued nolioes to the COidiaclDis slzling dlerein that the sutety.
i.e., the appellant, &ad moved. uodel" cl. 8 of tbc Conditions of tile
Auction Sale of jungle goods b' a!la lmcnt m their goods that be
lying in the godowns at Baria. Piplocl ad l.iin\lvda in the Slate
and the debts or odtt movable or immoo¥3ble proflCllj bebtgiug H
to them and for delivering the same to Jlim and diieclf:d the cm,-
tractors not to sell, mortgage, gift away oc odnwise diq1ose of
GULABCHAND v. STATE (Dayal, I.)
549
it.
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
8
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.
C 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
D 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 ConstituE
tion 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
F the terms of the attachment levied by the State and that therefore
it had put an end to the liability of the appellants uTJ.der 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 propertia; the appellant had been discharged from his suretyship in
G respect of the said contractors and that the State could no longer
claim to recover from him the balance due from the said contr~c
tors.
The writ application was presented because, in default of
tbe contracts to pay the balance amount due from them the Forest
Office.rs of the Government of Bombay had moved the Revenue
Officers to recover the said amount from the aprellant who was the
H 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
SUPREME
COURT
llEPORTS
[1965] 2s.c.R.
The contentions for the State of Bombay and the Ma.mlatdar in A
the writ proceedings were :
1. The petition was misconceived as not maintainable and there was no case for the issue of a writ of
man4amus because the proper course for the appellant
was ·to redress his ~ailed grievance by proceeding
B
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 a~ents.
4. The said agreements stipulated three important
conditions : ( i) that the surety will pay the instalment
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 intei:est, 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."
c
D
E
F
G
H
B
c
D
E
r
G
GULABCHAND 11. STATE (Dayal, /.)
551
6. The appellant had not applied for attachment and
sale of all the properties and outstandings of the con·
tractors 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 busi·
ness 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 request·
. ed 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 impair-,
ed and the petitioner was discharged fr6m 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
H 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
SUPRBMB
COURT
REPORTS
(1965] 2 S.C.R.
which were under attachment contrary to the terms of the attachA
ment, 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 B
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
C
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 D
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.
E
Auctions were held in September-October 194 7.
The appellant
stood surety with respect to the 11 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 F
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 pronerties of the contractors to be taken
in attachment and sold and for facilities being made available to
G
him to fulfil 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 deoosition
the armellant admitted the application, Exhibit 195, dated Aoril
7, 1948 to be the application he had nresented for the aforesaid
purpose.
H
It was further alleged in the plaint that subsequent to the
merger of the Baria State with the Bombay State on October 6,
GULABCHAND v. STATE (Dayal, /.)
553
A
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 acConling to law the plaintiff thus became discharged of
B
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
C
and that he had been informed that the said petition had been
dismissol on the ground that he could lawfully get his reliefs in
the Civil Court.
D
E
E
On the above facts the appellant prayed inter alta as follows :
"I. It may be declared that I have become discharged
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
G another remedy was open and stated that his contentions were not
upheld.
Several issues were framed. Issue No. SA was :
"Is the suit barred by res judicata in view of the High
Court's judgment in Civil Applications No. 260, 261
H
and 376 of 1952 ?"
The Trial Court held on this issue that that judgment operated as
res ftulicata in the suit It recorded its findings on the other issues
554
SUP.lUIMB
COtlllT llBPORTS
(1965) 2S.CR.
as well, but we are not concerned with those findings. It disA.
missed 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
dismi•sed the appeal.
He also recorded his findings on the other B
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 c
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 D
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
E
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 F
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 G
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 re~ar suit even if H
ide~~cal r~liefs on identical grounds were prayed for in a writ
petition, with those prayed for in the later regular suit
•
GULABCBAND v. STATB (Dayal, /,)
551
A
Tiie first question is really the main question for decision in
dlil appeal as it is not a case for the application of the principle
cl &ODstructive res judicata. It is clear from what has been stated
~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
I
CJD 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
me the same and. are sought on the same grounds. The High
C Court had !IJ determine in the writ petition whether the appellant's
liability as surety stood discharged in view of what he had alleged.
Tbc samo point has to be directly and substantially decided in th~
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
D if his contention had been accepted in the writ petition. In both
c-. on both occasions, the Court had first to hold that his liability as a surety stood discharged, and that as a coruequence of
lllCb 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 petition, dmlcting the State of Bombay not to enforce any liability
s which the appellant had undertaken under the agreements execut-
-eel· as a surety and not to proceed with the realisation of any amount
the State . allel?ed to be due from him and in the suit to pass a
decree prolu'biting the defendants by a pCn:nanent injunction for
aD time from attaching his property, selling or causing it to be
IOld and also a pennanent injunction to the State of Bombay
I' ttatraining them from attaching and selling any pronerty 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
c:onteDtion about the appellant's liability as a surety having come
G to an end was based on the terms of the contract, which was based
CJD the conditions of auction sales, between the appellant and the
State of Baria while in the pttSent suit the contention with respect
to the .c i sion 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 tei>ly' affidavit filed on behalf of the respondent in
B
the writ petition that there were any Baria State Forest Auction
Rllles. We have not been refen:ed to any rules. In fact, when
we asked for the rules, we were pl'OVided by learned cotmsel fO!
'556
SUPllEME
COUllT
llEPORTS
{1965) 2 S.c.Il.
the appellant with a booklet by the name 'Conditions for the A1!cA
tion Sale of Forests'. Further, the order of the High Court on the
writ petitiop 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 c:oatained 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.
B
It cannot therefore be disputed that if the decision which bad
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 'lbe C
question which arises for consideration is whether swh 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
D
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 E
shall include the whole of the claim which the plaintiff is Cllltitled
to make in respect of the cause of action; but a plaintilf 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 relinF
quishes any portion of his claim, he shall not afterwards sue in
r~pect of the portion so omitted or relinquished.
By its very
language, these provisions do not ap'ply 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(1) when it G
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
II
·of the suit, we do not think that we would be justified in
{1) [1%2) suPP. 1 S.C.R. 31s:
GULABCHAND V. STATB (Daya/, /.)
A
interfering with the exercise of its discretion by the High
Court."
557
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
B
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
c writ once it was shown that a fundamental right had been infringed,
it was said, at p. 589 :
D
E
F
" ... 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 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
G
res judicata against a party as it was oased on certain statements
recorded before that party was impleaded, in Krishna Behari Ray
v. ~Brojeswari Chowdranee(') :
"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
11
intervened in the suit, he was refused the opportunity
of cross-examining them.
Their Lordships think that
(I) [1962] I S.C.R. 574.
(2) L.R. 2 lA. 283, 286.
IASup.C.I./65~ 2
558
SUPRBMB
COURT
REPORTS
[1965] 2 S.C.R.
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
A
B
the appropriate writ and it is a matter of discretion for the High
C
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
D
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 E
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. /anakirama Iyer v. P. M. Nilakanta Iyer,(') 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 h31td, it is contended for the respondent that the
doctrine of res judicata is not confined to the provisions of s. 11
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
F
G
at in those proceedings especially when a solemn decision is given
H
after affording an opportunity to the parties to put before the
(!) (1962) Supp. t S.C'.R .. 206.
GULABCHAND V. STATE (Dayal, /.)
559
A 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
B the High Court on a finding of fact that the liability of the appellant 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
C 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 proceedE ings 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 177.6 in the Duches of Kingston's Case(') to which
reference has been invariably made in most of the cases to be
F
considered by us.
It was said in that case :
G
H
"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,
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
(I) l Smith's L. C. 13th edn. 644, 64S.
560
SUPRBMB
COtJllT
REPORTS
[1965] 2 s.c.R.
evidence of any matter which came collaterally in quesA
tion, 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
B
md 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 c
that the judgment of a Court of exclusive jurisdiction is to be
treated as res judicata upon the same matter in another (',aurt
which will not be a Court having jurisdiction over the matter.
Jt 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
D
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
E
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 F
between parties under whom they claimed. 'fhe bar to the second
suit was based on the identity of its 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 G
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(') at p. 210 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
H
judgment be recovered in a court of record, the judgment
(1) 153 E.R. Exch. W6, 13 M & W 494_
A
B
c
GULABCHAND V. STATE (Dayal, J.)
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 tbe
higher.
This appears to be equally true where there
is but one cause 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."
561
This principle had the approval of the House of Lords in Kendall
v. Hamilton.(')
It may be noticed that, in special cases, this
D 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 judgment 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.
F
In Khugawlee Sing v. Hossein Bux Khan( 2 ) the Privy Council, after quoting the opinion in Duchess af Kingston's Case(')
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(') 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
G 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 :
H
"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 better laid down !han in a case which
(I) (1879) 4 A.C. S04.
(2) (1871) 7 Beng. L.R. 673, 678.
(3) Smith's L.C. 13th edn. 644.
(4) (1872-73) I.A. Supp, 212.
562
SUPllBMB
COURT
REPORTS
(1965] 2 S.C.R.
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(') the Privy Council again stated
that the expression 'cause of action' in s. 2 of Act VIIl of 1859
could not be taken in its literal and most restricted sense, and c
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 Behar! Roy's Care. (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(') 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 observCd
at p.