MANU/SC/0012/1961

Equivalent Citation: AIR1961SC1457, 1962(2)AnWR16, [1962]1SCR574

IN THE SUPREME COURT OF INDIA

Decided On: 27.03.1961

Appellants:Daryao and Ors.

Vs.
Respondent:The State of U.P. and Ors.

Hon'ble Judges/Coram:
A.K. Sarkar, K.C. Das Gupta, K.N. Wanchoo, N. Rajagopala Ayyangar and P.B. Gajendragadkar,
JJ.

Subject: Civil

Acts/Rules/Orders:
Constitution of India - Article 32, Constitution of India - Article 226; Code of Civil Procedure,
1908 (CPC) - Order XLVII Rule 1

Cases Referred:
M.S.M. Sharma v. Shree Krishna Sinha, MANU/SC/0020/1960; Raj Lakshmi Dasi v. Banamali
Sen, MANU/SC/0063/1952

Authorities Referred:
Halsbury's Laws of England, 3rd, Ed., Vol. 15; Corpus Juris, Vo. 34

Citing Reference:

Discussed 8

Mentioned 2

Case Note:

The case debated when would the dismissal of writ petition by the High Court be bar
to the petition in Supreme Court in relevance to res judicata - It was held that there
was no substance in the plea that the judgment of the High Court could not be treated
as res judicata because under Article 226 of the Constitution of India, it could not
entertain a petition under Article 32 of the Constitution

JUDGMENT

Gajendragadkar, J.

1. These six writ petitions filed 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

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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 full 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.

2. 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 disturbances in the
Western District of Uttar Pradesh in 1947, the petitioners had to leave their village in July,
1947; later in November, 1947, they returned but they found that during their temporary
absence respondents 3 to 5 had entered in unlawful possession of the said land. Since the said
respondents refused to deliver possession of the land to the petitioners the petitioners had to
file suits for ejectment under s. 180 of the U.P. Tenancy Act, 1939. These suits were filed in
June, 1948. In the trial court the petitioners succeeded and a decree was passed in their
favour. The said decree was confirmed in appeal which was taken by respondents 3 to 5 before
the learned Additional Commissioner. In pursuance of the appellate decree the petitioners
obtained possession of the land through Court.

3. Respondents 3 to 5 then preferred a second appeal before the Board of Revenue under s.
267 of the U.P. Tenancy Act, 1939. On March 29, 1954, the Board allowed the appeal preferred
by respondents 3 to 5 and dismissed the petitioner's suit with respect to the land described in
Annexure A, whereas the said respondents' appeal with regard to other lands were dismissed.
The decision of the Board was based on the ground that by virtue of the U.P. Zamindary
Abolition and Land Reforms (Amendment) Act XVI of 1953 respondents 3 to 5 had become
entitled to the possession of the land.

4. Aggrieved by this decision the petitioners moved the High Court at Allahabad under Art. 226
of the Constitution for the issue of a writ of certiorari to quash the said judgment. Before the
said petition was filed a Full Bench of the Allahabad High Court had already interpreted s. 20 of
the U.P. Land Reforms Act as amended by Act XVI of 1953. The effect of the said decision was
plainly against the petitioners' contentions, and so the learned advocate who appeared for the
petitioners had no alternative but not to press the petition before the High Court. In
consequence the said petition was dismissed on March 29, 1955. It appears that s. 20 has
again been amended by s. 4 of Act XX of 1954. It is under these circumstances that the
petitioners have filed the present petition under Art. 32 on March 14, 1956. It is plain that at
the time when the present petition has been filed the period of limitation prescribed for an
appeal under Art. 136 against the dismissal of the petitioners' petition before the Allahabad
High Court had already expired. It is also clear that the grounds of attack against the decision
of the Board which the petitioners seek to raise by their present petition are exactly the same
as the grounds which they had raised before the Allahabad High Court; and so it is urged by the
respondents that the present petition is barred by res judicata.

5. 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(1) does not impose on this Court an obligation to grant the relief, because as in the
case of Art. 226 so in the case of Art. 32 also the granting of leave is discretionary.

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6. 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 made in two reported
decisions of this Court. In Laxmanappa Hanumantappa Jamkhandi v. The Union of India &
Another MANU/SC/0033/1954 : [1954]26ITR754(SC) , this Court held that as there is a special
provision in Art. 265 of the Constitution that no tax shall be levied or collected except by
authority of law, clause 1 of Art. 31 must be regarded as concerned with deprivation of property
otherwise than by imposition or collection of tax and as the right conferred by Art. 265 is not a
fundamental right 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 that when this position was put to Mr. Sen he fairly and
rightly conceded that it was not possible for him to combat this position. To the same effect are
the observations made by the same learned Chief Justice in Dewan Bahadur Seth Gopal Das
Mohta v. The Union of India & Another MANU/SC/0090/1954 : [1954]26ITR722(SC) . It will,
however, be noticed that the observations made in both the cases are obiter, and, with respect,
it would be difficult to treat them as a decision on the question that the issue of an appropriate
writ under Art. 32 is a matter of discretion, and that even if the petitioner proves his
fundamental rights and their unconstitutional infringement this Court nevertheless can 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
[MANU/SC/0064/1958 : [1959] 1 S.C.R. 528.] 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 difference in approach, seems to emphasise the basic
importance of the fundamental rights guaranteed by the Constitution and the effect of the
decision appears to be that the citizens are ordinarily entitled to appropriate relief under Art. 32
once it is shown that their fundamental rights have been illegally or unconstitutionally violated.
Therefore, we are not impressed by the argument that we should deal with the question of the
applicability of the rule of res judicata to a petition under Art. 32 on the basis that like Art. 226
Art. 32 itself gives merely a discretionary power to the Court to grant an appropriate relief.

7. The argument that Art. 32 does not confer upon a citizen the right to move this Court by an
original petition but merely gives him the right to move this Court by an appropriate proceeding
according to the nature of the case seems to us to be unsound. It is urged that in a case where
the petitioner has moved the High Court by a writ petition under Art. 226 all that he is entitled
to do under Art. 32(1) is to move this Court by an application for special leave under Art. 136;
that, it is contended, is the effect of the expression "appropriate proceedings" used in Art. 32
(1). In our opinion, on a fair construction of Art. 32(1) the expression "appropriate proceedings"
has reference to proceedings which may be appropriate having regard to the nature of the
order, direction or writ which the petitioner seeks to obtain from this Court. The
appropriateness of the proceedings would depend upon the particular writ or order which he
claims and it is in that sense that the right has been conferred on the citizen to move this Court
by appropriate proceedings. That is why we must proceed to deal with the question of res
judicata on the basis that a fundamental right has been guaranteed to the citizen to move this
Court by an original petition wherever his grievance is that his fundamental rights have been
illegally contravened.

8. 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 Court has been entrusted with the solemn task of upholding the
fundamental rights of the citizens of this country. The fundamental rights are intended not only
to protect individual's rights but they are based on high public policy. Liberty of the individual
and the protection of his fundamental rights are the very essence of the democratic way of life
adopted by the constitution, and it is the privilege and the duty of this Court to uphold those
rights. This Court would naturally refuse to circumscribe them or to curtail them except as
provided by the Constitution itself. It is because of this aspect of the matter that in Romesh

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Thappar v. The State of Madras [ MANU/SC/0006/1950 : 1950CriLJ1514 .], 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
judicata this aspect of the matter had no doubt to be borne in mind.

9. 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. If these two principles form the foundation of the general rule of res
judicata they cannot be treated as irrelevant or inadmissible even in dealing with fundamental
rights in petitions filed under Art. 32.

10. In considering the essential elements of res judicata one inevitably harks back to the
judgment of Sir William de Grey, (afterwards Lord Walsingham) in the leading Duchess of
Kingston's case [2 Smith Lead. Cas. 13th Ed., pp. 644, 645.]. Said Sir William de Grey,
(afterwards Lord Walsingham) "from the variety of cases relative to judgments being given in
evidence in civil suits, these two deductions seem to follow as generally true : First, that the
judgment of a court of concurrent jurisdiction, directly upon the point, is as a plea, a bar, or as
evidence, conclusive between the same parties, upon the same matter, directly in question in
another court; Secondly, that the judgment of a court of exclusive jurisdiction, directly upon the
point, is in like manner conclusive upon the same matter, between the same parties, coming
incidentally in question in another court for 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" [Halsbury's Laws of
England, 3rd, Ed., Vol. 15, para. 357, p. 185.]. Halsbury also adds that the doctrine applies
equally in all courts, and it is immaterial in what court the former proceeding was taken,
provided only that it was a court of competent jurisdiction, or what form the proceeding took,
provided it was really for the same cause" (p. 187, paragraph 362). "Res judicata", it is
observed in Corpus Juris, "is a rule of universal law pervading every well regulated system of
jurisprudence, and is put upon two grounds embodied in various maxims of the common law;
the one, public policy and necessity, which makes it to the interest of the State that there
should be an end to litigation - interest reipublicae ut sit finis litium; the other, the hardship on
the individual that he should be vexed twice for the same cause - nemo debet bis vexari pro
eadem causa" [Corpus Juris, Vo. 34, p. 743.]. In this sense the recognised 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 are taken from the Roman Law" [Ibid. p. 745.].
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.

11. The same question can be considered from another point of view. If a judgment has been
pronounced by a court of competent jurisdiction it is binding between the parties unless it is
reversed or modified by appeal, revision or other procedure prescribed by law. Therefore, if a
judgment has been pronounced by the High Court in a writ petition filed by a party rejecting his
prayer for the issue of an appropriate writ on the ground either that he had no fundamental
right as pleaded by him or there has been no contravention of the right proved or that the
contravention is justified by the Constitution itself, it must remain binding between the parties

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unless it is attacked by adopting the procedure prescribed by the Constitution itself. The binding
character of judgments pronounced by courts of competent jurisdiction is itself an essential part
of the rule of law, and the rule of law obviously is the basis of the administration of justice on
which the Constitution lays so much emphasis. As Halsbury has 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" [Halsbury's Laws of England, 3rd Ed., Vol. 22, p. 780, paragraph 1660.]. 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 action between the same parties for the same cause in the same court or in another
court, whether the latter has concurrent or other jurisdiction. This rule is subject to the
limitation that the judgment in the former action must have been rendered by a court or
tribunal of competent jurisdiction" [Corpus Juris Secundum, Vol. 50 (Judgments), p. 603.]. "It
is, however, essential that there should have been a judicial determination of rights in
controversy with a final decision thereon" [Ibid p. 608.]. In other words, an original petition for
a writ under Art. 32 cannot take the place of an appeal against the order passed by the High
Court in the petition filed before it under Art. 226. There can be little doubt that the jurisdiction
of this Court to entertain applications under Art. 32 which are original cannot be confused or
mistaken or used for the appellate jurisdiction of this Court which alone can be invoked for
correcting errors in the decisions of High Courts pronounced in writ petitions under Art. 226.
Thus, on general considerations of public policy there seems to be no reason why the rule of res
judicata should be treated as inadmissible or irrelevant in dealing with petitions filed under Art.
32 of the Constitution. It is true that the general rule can be invoked only in cases where a
dispute between the parties has been referred to a court of competent jurisdiction, there has
been a contest between the parties before the court, a fair opportunity has been given to both
of them to prove their case, and at the end the court has pronounced its judgment or decision.
Such a 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.

12. This Court had occasion to consider the application of the rule of res judicata to a petition
filed under Art. 32 in Pandit M.S.M. Sharma v. Dr. Shree Krishna Sinha MANU/SC/0020/1960 :
[1961]1SCR96 . In that case the petitioner had moved this Court under Art. 32 and claimed an
appropriate writ against the Chairman and the Members of the Committee of Privileges of the
State Legislative Assembly. The said petition was dismissed. Subsequently he filed another
petition substantially for the same relief and substantially on the same allegations. One of the
points which then arose for the decision of this Court was whether the second petition was
competent, and this Court held that it was not because of the rule of res judicata. It is true that
the earlier decision on which res judicata was pleaded was a decision of this Court in a petition
filed under Art. 32 and in that sense the background of the dispute was different, because the
judgment on which the plea was based was a judgment of this Court and not of any High Court.
Even so, this decision affords assistance in determining the point before us. In upholding the
plea of res judicata this Court observed that the question determined by the previous decision
of this Court cannot be reopened in the present case and must govern the rights and obligations
of the parties which are substantially the same. In support of this decision Sinha, C.J., who
spoke for the Court, referred to the earlier decision of this Court in Raj Lakshmi Dasi v.
Banamali Sen [ MANU/SC/0063/1952 : [1953]4SCR154 .] 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 [MANU/SC/0063/1952 : [1953]
4SCR154 .] was a Court of exclusive jurisdiction. Thus this decision establishes the principle
that the rule of res judicata can be invoked even against a petition filed under Art. 32.

13. 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 [ MANU/SC/0027/1951 : [1951]2SCR344 .], it appeared that against the decision of

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the High Court a petition for special leave had been filed but the same had been rejected and
this was followed by petitions under Art. 32. These petitions were in fact entertained though on
the merits they were dismissed, and in doing so it was observed by Fazl Ali, J., who delivered
the judgment of the Court, that "it may, however, be observed that in this case we have not
considered it necessary to decide whether an application under Art. 32 is maintainable after a
similar 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 [ MANU/SC/0083/1953 : 1953CriLJ862 .].

14. On the other hand, in Bhagubhai Dullabhabhai Bhandari v. The District Magistrate, Thana
[ MANU/SC/0011/1956 : 1956CriLJ1126 .] the decision of the High Court was treated as binding
between the parties when it was observed by reference to the said proceedings that the "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.

15. 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 to try second suit or proceeding, and since the
High Court cannot entertain an application under Art. 32 its decision cannot be treated as res
judicata for the purpose of such a petition. It is doubtful if the technical requirement prescribed
by s. 11 as to the competence of the first Court to try the subsequent suit is an essential part of
the general rule of res judicata; but assuming that it is, in substance even the said test is
satisfied because the jurisdiction of the High Court in dealing with a writ petition filed under Art.
226 is substantially the same as the jurisdiction of this Court in entertaining an application
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.

16. It is, however, necessary to add that in exercising its jurisdiction under Art. 226 the High
Court may sometimes refuse to issue an appropriate writ or order on the ground that the party
applying for the writ is guilty of laches and in that sense the issue of a high prerogative writ
may 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 the petitioner has a fundamental right which has been illegally or
unconstitutionally contravened. It is not unlikely that if a petition is filed even under Art. 32
after a long lapse of time considerations may arise whether rights in favour of third parties
which may have arisen in the meanwhile could be allowed to be affected, and in such a case the
effect of laches on the part of the petitioner or of his 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

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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 dame party on
the same facts and for the same reliefs under Art. 32.

17. 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) [(1958) 3 All E.R. Q.B.D. 625.] that "an applicant for a writ of
habeas corpus in a criminal matter who has once been heard by a Divisional Court of the
Queen's Bench Division is not entitled to be heard a second time by another Divisional Court in
the same Division, since a decision of a Divisional Court of the Queen's Bench Division is
equivalent to the decision of all the judges of the Division, just as the decision of one of the old
common law courts sitting in 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 writ, several dicta pronounced by different judges in dealing with
successive writ petitions, and has concluded that "the authorities cannot be said to support the
principle that except in vacation an applicant could go from judge to judge as opposed to going
from court to court" (p. 633), so that even in regard to a habeas corpus petition it is now
settled in England that an applicant cannot move one Divisional Court of the Queen's Bench
Division after another. The said decision has been subsequently applied in Re Hastings (No. 3)
[[1959] 1 All E.R. Ch.D. 698.] 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.

18. 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 alternate remedies and so the adoption of one remedy cannot bar the
adoption of the other. These remedies are not exclusive but are cumulative and so no bar of res
judicata can be pleaded when a party who has filed a petition under Art. 226 seeks to invoke
the jurisdiction of this Court under Art. 32. In support of this contention reliance has been
placed on the decision of the Calcutta High Court in Mussammat Gulab Koer v. Badshah
Bahadur [MANU/WB/0517/1909 : 13 C.W.N. 1197.]. In that case a party who had
unsuccessfully sought for the review of a consent order on the ground of fraud brought a suit
for a similar relief and was met by a plea of res judicata. This plea was rejected by the Court on
the ground that the two remedies though co-existing were not inconsistent so that when a party
aggrieved has had recourse first to one remedy it cannot be precluded from subsequently
taking recourse to the other. In fact the judgment shows that the Court took the view that an
application for review was in the circumstances an inappropriate remedy and that the only
remedy available to the party was that of a suit. In dealing with the question of res judicata the
Court examined the special features and conditions attaching to the application for review, the
provisions with regard to the finality of the orders passed in such review proceedings and the
limited nature of the right to appeal provided against such orders. In the result the Court held
that the two remedies cannot be regarded as parallel and equally efficacious and so no question
of election of remedies arose in those cases. We do not think that this decision can be read as
laying down a general proposition of law that even in regard to alternate remedies if a party

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takes recourse to one remedy and a contest arising therefrom is tried by a court of competent
jurisdiction and all points of controversy are settled the intervention of the decision of the Court
would make no difference at all. In such a case the point to consider always would be what is
the nature of the decision pronounced by a Court of competent jurisdiction and what is its
effect. Thus considered there can be no doubt that if a writ petition filed by a party has been
dismissed on the merits by the High Court the judgment thus pronounced is binding between
the parties and it cannot be circumvented or by-passed by his taking recourse to Art. 32 of the
Constitution. Therefore, we are not satisfied that the ground of alternative remedies is well
founded.

19. We must now proceed to state our conclusion on the preliminary objection raised by the
respondents. We hold that if a writ petition filed by a party under Art. 226 is considered on the
merits as a contested matter and is dismissed the decision thus pronounced would continue to
bind the parties unless it is otherwise modified or reversed by appeal or other appropriate
proceedings permissible under the Constitution. It would not be open to a party to ignore the
said judgment and move this Court under Art. 32 by an original petition made on the same
facts and for obtaining the same or similar orders or writs. If the petition filed in the High Court
under Art. 226 is dismissed not on the merits but because of the laches of the party applying
for the writ or because it is held that the party had an alternative remedy available to it, then
the dismissal of the writ petition would not constitute a bar to a subsequent petition under Art.
32 except in cases where and if the facts thus found by the High Court may themselves be
relevant even under Art. 32. If a writ petition is dismissed in limine and an order is pronounced
in that behalf, whether or not the dismissal would constitute a bar would depend upon the
nature of the order. If the order is on the merits it would be a bar; if the order shows that the
dismissal was for the reason that the petitioner was guilty of laches or that he had an
alternative remedy it would not be a bar, except in cases which we have already indicated. If
the petition is dismissed in limine without passing a speaking order then such dismissal cannot
be treated as creating a bar of res judicata. It is true that, prima facie, dismissal in limine even
without passing a speaking order in that behalf may strongly suggest that the Court took the
view that there was no substance in the petition at all; but in the absence of a speaking order it
would not be easy to decide what factors weighed in the mind of the Court and that makes it
difficult and unsafe to hold that such a summary dismissal is a dismissal on merits and as such
constitutes a bar of res judicata against a similar petition filed under Art. 32. 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 has been no decision on the merits by the Court. We wish to make it clear
that the conclusions thus reached by us are confined only to the point of res judicata which has
been argued as a preliminary issue in these writ petitions and no other. It is in the light of this
decision that we will now proceed to examine the position in the six petitions before us.

20. In Petition No. 66 of 1956 we have already seen that the petition filed in the High Court was
on the same allegations and was for the same relief. The petitioners had moved the High Court
to obtain a writ of certiorari to quash the decision of the Revenue Board against them, and
when the matter was argued before the High Court in view of the previous decisions of the High
Court their learned counsel did not press the petition. In other words, the points of law raised
by the petition were dismissed on the merits. That being so, it is a clear case where the writ
petition has been dismissed on the merits, and so the dismissal of the writ petition creates a
bar against the competence of the present petition under Art. 32. The position with regard to
the companion petition, No. 67 of 1956, is exactly the same. In the result these two petitions
fail and are dismissed; there would be no order as to costs.

21. In Writ Petition No. 8 of 1960 the position is substantially different. The previous petition for
a writ filed by the petitioner (No. 68 of 1952) in the Allahabad High Court was withdrawn by his
learned counsel and the High Court therefore dismissed the said petition with the express
observation that the merits had not been considered by the High Court in dismissing it and so
no order as to costs was passed. This order dismissing the writ petition as withdrawn which was
passed of February 3, 1955, cannot therefore support the plea of res judicata against the
present petition. It appears that a co-lessee of the petitioner had also filed a similar Writ
Petition, No. 299 of 1958. On this writ petition the High Court no doubt made certain
observations and findings but in the end it came to the conclusion that a writ petition was not

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the proper proceeding for deciding such old disputes about title and so it left the petitioner to
obtain a declaration about title from a competent civil or revenue court in a regular suit. Thus it
would be clear that the dismissal of this writ petition (on 17-3-1958) also cannot constitute a
bar against the competence of the present writ petition. The preliminary objection raised
against this writ petition is therefore rejected and it is ordered that this writ petition be set
down for hearing before a Constitution Bench.

22. In Petition No. 77 of 1957 the petitioner has stated in paragraph 11 of his petition that he
had moved the High court of Punjab by a writ petition under Arts. 226 and 227 but the same
was dismissed in limine on July 14, 1957. It is not clear from this statement whether any
speaking order was passed on the petition or not. It appears that the petitioner further filed an
application for review of the said order under O. 47, r. 1 read with s. 151 of the Code but the
said application was also heard and dismissed in limine on March 1, 1957. It is also not clear
whether a speaking order was passed on this application or not. That is why, on the material as
it stands it is not possible for us to deal with the merits of the preliminary objection. We would
accordingly direct that the petitioner should file the two orders of dismissal passed by the
Punjab High Court. After the said orders are filed this petition may be placed for hearing before
the Constitution Bench and the question of res judicata may be considered in the light of our
decision in the present group.

23. In Petition No. 15 of 1957 initially we had a bar recital that the writ petition made by the
petitioner in the Punjab High Court had been dismissed. Subsequently, however, the said order
itself has been produced and it appears that it gives no reasons for dismissal. Accordingly we
must hold that the said order does not create a bar of res judicata and so the petition will have
to be set down for hearing on the merits.

24. In Writ Petition No. 5 of 1958 the position is clear. The petitioner had moved the Bombay
High Court for an appropriate writ challenging the order of the Collector in respect of the land in
question. The contentions raised by the petitioner were examined in the light of the rejoinder
made by the Collector and substantially the petitioner's case was rejected. It was held by the
High Court that the power conferred on the State Government by s. 5(3) of the impugned Act,
the Bombay Service Inam (Useful to the Community) Abolition Act, 1953, was not arbitrary nor
was its exercise in this particular case unreasonable or arbitrary. The High Court also held that
the land of the petitioner attracted the relevant provisions of the said impugned statute. Mr.
Ayyangar for the petitioner realised the difficulties in his way, and so he attempted to argue
that the contentions which he wanted to raise in his present petition are put in a different form,
and in support of this argument he has invited our attention to grounds 8 and 10 framed by him
in paragraph X of the petition. We are satisfied that a change in the form of attack against the
impugned statute would make no difference to the true legal position that the writ petition in
the High Court and the present writ petition are directed against the same statute and the
grounds raised by the petitioner in that behalf are substantially the same. Therefore the
decision of the High Court pronounced by it on the merits of the petitioner's writ petition under
Art. 226 is a bar to the making of the present petition under Art. 32. In the result this writ
petition fails and is dismissed. There would be no order as to costs.

25. Petition dismissed.

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