PRINCIPLE OF RES JUDICATA AND WRIT PROCEEDINGS

Yogendra Singh*

THE POSITION of administration of justice in India is bifid; one, ordinary

and traditional; two, extraordinary and non-traditional. The Civil
Procedure Code, 1908,1 inter alia, provides for the former, and articles 32,
226, 227 and 136 of the Constitution of India provide for the latter.
Under the Civil Procedure Code every suit of civil nature has to be
instituted in the court of the lowest grade competent to try it.2 A suit
commences with the presentation of plaint which contains inter alia statements
of material facts constituting the cause of action and the relief claimed by
the plantiif.3 The court is under an obligation to see whether various
requirements of the first schedule relating to parties, framing of suits, etc.,
have been complied with. Thereafter a detailed procedure as prescribed
under the code has to be gone through in order to determine the rights of the
parties in regard to the matters of controversy. Judicial process under the
Civil Procedure Code involves settlement of issues of fact and law; giving
of evidence; examination and cross-examination of witnesses; elaborate
arguments by lawyers, and other related processes. The crux of the matter
is that there is a judicial process which is characterized by an ascertainment
of facts, determination of law and application of the law to the facts, as
found by the court.4 Thereafter execution of decrees and orders follows.5
The Civil Procedure Code further grants the right of appeal, reference, review
and revision.6 From the standpoint of enquiry possessed by the court,
these mechanisms differ in their width and amplitude. Thus, the parties
are afforded fullest opportunities to lead evidence, examine witnesses and
papers, and to put forth arguments. A detailed and full enquiry is the very
essence of the ordinary judicial process under the ordinary procedure of the
law.

* LL. M., Lecturer, Law School, Banaras Hindu University.

1. See, Chandra Bhushan Mishra v. Smt. Jayatri Devi, A.I.R. 1969 All. 142
(F.B.). The Code of Civil Procedure, 1908isan Act which consists of anumberof sections
and rules. The first eight sections are grouped together as "preliminary" and the remain-
ing are arranged into parts. The rules are comprised in five schedules (except the first
schedule other schedules have been repealed.) The first schedule comprises of rules
arranged in orders. Sections 122 and 125 empower the High Courts to make rules.
2. The Civil Procedure Code, 1908, s. 15.
3. Id., schedule I, orders VI and VII.
4. Id., orders I, II, V, VIII, IX, XI, XII, XIII, XIV, XVI, XVIII & XX.
5. Id., schedule I, p.21.
6. Id., VII and VIIL

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400 JO URNAL OF fHE INDIAN LA W INSTITUTE [Vol. 16 : $

Section 11 of the Civil Procedure Code, 1908 embodies the principle

of res judicata, a principle of finality.7 Once an issue has been disposed of
by the competent court, the same cause or matter, as a matter of policy,
should not be reagitated in the court between the same parties on the same
grounds. The object underlying such a principle is twofold: one, it aims at
minimization of litigation; two, it avoids unnecessary harassment to parties.
From the standpoint of logic also, the doctrine of res judicata is commendable:
once a matter or cause has been given due judicial consideration and the
decision-maker arrives at a determination which binds the parties pro prio
vigore, no cause of action for fresh litigation survives. The observations of
Lawrence Jenkins are apposite:

[I]n view of the arguments addressed to them, their Lordships

desire to emphasize that the rule of res judicata, while founded
on ancient precedent, is dictated by a wisdom which is for all
time. "It hath been well said," declared Lord Coke, "interest
reipublicae ut sit finis litium, otherwise, great oppression might
be done under colour and pretence of Law" (6 Coke, 9a). Though
the rule of the Code may be traced to an English source, it
embodies a doctrine in no way opposed to the spirit of the law as
expounded by the Hindu commentators. Vijnaneswara and
Nilakantha include the plea of former judgment among those
allowed by law, each citing for this purpose the text of Katyayana,
who describes the plea thus: "If a person though defeated at law
sues again, he should be anwsered, 'You were defeated formerly'.
This is called the plea *of former judgment." And so the
application of the rule by the Courts in India should be influenced
by no technical considerations of form, but by matter of substance
within the limits allowed by law.8

After the adoption of the Constitution of India, "WE, THE PEOPLE

OF INDIA," have been granted (apart from ordinary judicial remedies)
extraordinary remedies as provided under the Constitution against the
state action. Conferral of such constitutional remedies works as a check
against the abuse of power by the various instrumentalities of state. Articles

7. S. 11, C.P.C. reads :

No Court shall try any suit or issue in which the matter directly and sub-
stantially in issue has been directly and substantially in issue in a
former suit between the same parties, or between parties under whom
they or any of them claim, litigating under the same title in a Court
competent to try such subsequent suit or the suit in which such
issue has been subsequently raised, and has been heard and finally
decided by such Court. (See also Explanation I to VI under the section).
8. SheoparsanSingh v.RamnandanSingh, 43 LA. 91 at 98-99 (1915-16). See also
Raj Lakshmi Dasi and others v. Banamali Sen and others, A.LR. 1953 S.C. 33; M.S.M.
Sharma v. Shree Krisna Sinha, A.I.R. 1960 S.C. 1186; Daryao v. State of U.P., A.LR.
1961. S.C.1457.

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1974] PRINCIPLE OF RES JUDICATA AND WRIT PROCEEDINGS 4uL

32, 226 and 227 are most relevant in this connection. It has been pithily
observed:

Since the commencement of the Constitution, the most commonly

used technique to bring an administrative action within the
cognisance of the Courts has been the writ system. Innumerable
cases have taken place in this area and hundreds of cases continue
to be filed against the administration every year for seeking
writs and it may be no exaggeration to say that the writ process
has over shadowed all other techniques of judicial review of
administrative action.9

Articles 32 and 226 of the Constitution provide for writ mechanism.

Article 32 contained in part III of the Constitution obligates the Supreme
Court of India to protect fundamental rights against any law contravening
the said rights.9* Similarly, High Courts have been granted under article
226 the power to issue writs, directions, orders, not only to safeguard
fundamental rights but also for other purposes as well. The Supreme
Court has noticed the anxiety of the Constitution makers, "to provide for
certain basic safeguards for the people in the new set up, a quick and
inexpensive remedy for the enforcement of fundamental rights." 10 It is
worthwhile to refer to Justice Mukherjea's observations in Basappa v.
Nagappa : u

In granting a writ of certiorari, the superior court does not

exercise the powers of an appellate tribunal. It does not review
or reweigh the evidence upon which determination of the inferior
tribunal purports to be passed. It demolishes the order which it
considers to be without jurisdiction or palpably erroneous, but
does not substitute its own views for those of the inferior
tribunal.12

Application of res judicata

The Supreme Court of India has applied the doctrine of res judicata

9. M.P. Jain and S.N. Jain, Principles of Administrative Law 306 (2nd ed.,
1973); see also the Constitution of India, arts. 32 and 226,
9a. RomeshThapparv. State of Madras, A.LR. 1950 S.C. 124; K.K. Kochumli
andothersv. State of Madras, A.LR, 1959 S.C. 725; Premchand Garg v. Excise Com-
missioner, A.I.R. 1963 S.C. 996 ; Daryao v. State of U.P., supra note 8; Tilickchand
Motichand v. H.B. Munshi, A.LR. 1970 S.C. 898.
10. Election Commission of India v. SakaVenkata Rao, A.LR. 1953 S.C. 210
at 212.
11. Basappa v. Nagappa, A.LR, 1954 S.C, 440. See also H.V.Kamath v. Ahmad
Ishaque, A.LR. 1955 S.C. 233; G.L. Bansidharv. Union of India, A.LR. 1964 S.C. 1519 ;
State of U.P.v. Dr. Vijey Anand, A.LR. 1963 S.C. 946.
12. Basappa v. Nagappa, supra note 11 at 444.

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402 JO URNAL OF THE INDIAN LA W INSTITUTE [Vol. 16:3

in writ proceedings. The case of Daryao v. State of U.P.1* may be taken

first. The petitioners in the instant case were tenants of certain plots of land
and the respondents were the proprietors of the said land. Due to com-
munal disturbance in the western districts of U.P., Daryao and others
had to leave their village. After few months, when they returned to the
village, they found that the respondents had entered into unlawful possession
of the said plots of land. The petitioners filed a suit of ejectment under
section 180 of the U.P. Tenancy Act, 1939. The trial court passed a decree
in favour of the petitioners. The decree was confirmed in appeal. There-
after, the petitioners obtained possession through the court. On second
appeal by the respondents, the Board of Revenue allowed the appeal relying
upon the U.P. Zamindari Abolition and Land Reforms (Amendment) Act of
1953.
The petitioners filed a writ petition in the High Court of Allahabad
against the decision of the Board of Revenue for an issuance of writ of
certiorari. The High Court dismissed the writ petition. An earlier Full
Bench decision of the Allahabad High Court was plainly against the
petitioners' contentions and the learned counsel for the petitioners "had no
alternative but not to press the petition before the High Court".14
The petitioners approached the Supreme Court under article 32 of the
Constitution. It was urged on behalf of the respondents that the rejection
of petition by the High Court would operate as a bar on the Supreme Court
under article 32. The rule of res judicata was pressed in service. The
argument was advanced that the rule of res judicata is based on high public
policy in so far as litigation is avoided and parties are not vexed twice for
the same cause of action. The argument that the traditional conecepts of
civil jurisprudence should not prove obstructive in the enforcement of
fundamental rights in the Supreme Court did not find favour with their
Lordships of the Supreme Court. The court opined:
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 the petitions filed under
Art. 32 of the Constitution.15
Their Lordships proceeded to observe:
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 compe-
tent jurisdiction, there has been a contest between the parties
13. Supra note 8. It is to be noted that the Supreme Court applied the principle
of res judicata in M.S.M. Sharma v. Shree Krishna Sinha, supra note 8. In that case, the
Supreme Court had already given a decision on a constitutional matter which was again
raised. It is natable that the Supreme Court heavily relied upon its previous decision of
Raj Lakshmi Dasi v. Banamali, supra note 8, in which the principle of res judicata was
applied between private parties having no constitutional aspect.
14. 5«;?ranote8atl460.
15. Id. at 1463.

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1974] PRINCIPLE OF RES JUDICATA AND WRIT PROCEEDINGS 4o3

before a 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.16

and concluded :
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.17

Prima facie, the Supreme Court's approach is marked by to and fro

movement. The Supreme Court started with the premise that the question
of res judicata in relation to writ proceedings "has not so far been fully
considered or finally decided".18 Hence this case becomes momentous as it
would control subsequent cases.
In the first place, the Supreme Court clamours for protection of
fundamental rights by observing that such rights "are based on high public
policy"19 and, "liberty of individual and the protection of fundamental
rights are the very essence of democratic way of life adopted by the Consti-
tution, and it is the privilege and duty of this Court to uphold those
rights." 20
Being conscious of this "high public policy", Justice Gajendragadakar
(as he then was) turned to the rule of res judicata. The learned Judge
realizing that rule of res judicata involves "some technical aspects" proceeded
to enquire whether the doctrine of res judicata is based on some public policy
and observed that it is "in the interest of the public that a finality should
attach to the binding decisions pronounced by the court of competent
jurisdiction". 21 Thus, there is on the one hand, a duty of the highest judicial
tribunal of the land to grant the remedy unhampered by any technicality
of law, and on the other, there is a rule embedded in the traditional law that
some finality should attach to the finding or the court. Among these two
conflicting policies it would have been possible for the court to see whether
there is any indications under the constitutional provisions and the related
rules so as to justify the stand that rule of res judicata is applicable. And,
in fact, the Supreme Court while appreciating "the very essence" of
fundamental rights took pains to note:

This Court would naturally refuse to circumscribe them or to

curtail them except as provided by the Constitution itself.22

16. Ibid.
17. Ibid.
18. Id. at 1459.
19. Id. at 1461.
20. Ibid.
21. M a t 1462.
22. Id, at 1461 (emphasis added).

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 464 JOURNAL OF THE tNDlAN LAW INSTITUTE [Vol. 16:3
The 'Constitution itself should be the touchstone of deciding such a question
of constitutional magnitude. It is worthwhile to state that neither the
Constitution23 nor the related rules24 support the approach of the Supreme
Court of India. Before coming to the "Series of analogical extension" of
the rule of res judicata which has spread over the large area of law, it is
appropriate to point out that this whole case would have been disposed of
on another basis of law. In order to clear this point it is better to start
with the Supreme Court observations made in course of the statement of
facts of the case:
Aggrieved by this decision, the petitioners moved the High Court
at Allahabad under Art. 226 of the Constitution for the issue
of writ of certiorari to quash the said judgment.25
From the above statement, it is amply clear that a writ wasfiledfor obtaining
writ of certiorori to quash the judgment of the Board of Revenue. In other
words, the decision of the Board of Revenue (which is certainly a judicial
tribunal) was attached in a writ proceeding on the gound of violation of some
fundamental right. If that is the position, the first searching question should
have been whether a decision rendered by the Board of Revenue (a judicial
body) could violate the fundamental rights.28 It would be in the fitness of
things to say that judicial function of a state (in a form of rendered decision)
could never have violated the fundamental rights on the ground that a decision
or order passed by a court having jurisdiction to decide can never be violative
of fundamental rights. The subsequent decisions in Ujjam Bai27 and Naresh
v. State of Maharashtra^ are relevaat to the point. In the former case,
the issue was whether an authority like sales tax officer under U.P. Sales
Tax Act, 1948 acting judicially could violate the fundamental rights so as to
attract the jurisdiction of the Supreme Court under article 32 of the
Constitution. The majority in Ujjam Bai negatived such a contention on the
ground of jurisdiction and its logical consistency. The majority postulated
that the determination of a quasi-judicial authority acting under the intra
vires statute cannot infringe any fundamental right and cannot be
impugned under article 32. And to say that doing of a legal act violates
fundamental right would be a contradiction in term.29
23. The Constitution of India, arts. 32, 226, 227, 142, 145.
24. The Supreme Court Rules, 1966.
25. Supra note 8 at 1460.
26. The perusal of the judgment in Daryao's case does not indicate which parti-
cular fundamental right was violated by the decision of the Board of Revenue. In the
later decision of Ghulam Sarwar v. Union of India, A.I.R. 1967 S.C. 1335, Subba Rao,
C.J., while referring to Daryao"s case has stated (at p. 1336) :
There, the High Court dismissed a writ petition under Art. 226 of the
Constitution after hearing the matter on merits, on the ground that no
fundamental right was proved or contravened.
27. Smt. Ujjam Bai v. State of U.P., A.I.R. 1962 S.C. 1621.
28. A.I.R. 1967 S.C. 1.
29. See the observation of Kapur, J., in UjjainBai, supra note 27 at 1635.

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1974] PRINCIPLE OF R&$ JUDICATA AND WRIT PROCEEDINGS 463

Similarly much reliance can be placed on Naresh v. State of

Maharashtra in which the verbal order of a High Court judge was impugned
as violating the fundamental right of freedom of speech and expression under
article \9(l)(a) of the Constitution. The learned Chief Justice after an
elaborate discussion of various aspects of the matter remarked that a judge
first decides questions of fact and then applies the relevent law to the said
facts and observed:
But it is singularly inappropriate to assume that a judicial decision
pronounced by a judge of competent jurisdiction in or in relation
to a matter brought before him for adjudication can affect the
fundamental rights of the citizens under Art. 19(1). What the
judicial decision purports to do is to decide the controversy
between the parties brought before the court and nothing
more. If this basic and essential aspect of judicial process
is borne in mind, it would be plain that the judicial verdict
pronounced by Court in or in relation to a matter brought before
it for its decision cannot be said to affect the fundamental rights of
of the citizens under Art. 19(1).30
If this basic and essential aspect of judicial process is any safe guide,
it would have been possible to contend before the High Court as well as the
Supreme Court that an adjudication of the Board of Revenue could not be
said to violate the fundamental rights. The question of determination of
applicability of the rule of res judicata in such a case could have been
avoided.31
Ghulam Sarwar's case,32 a subsequent decision of the Supreme Court,
throws some light on Daryao'*s case. Chief Justice Subba Rao in the instant
case had to distinguish the writ of habeas corpus on somewhat less substantial
reasons. The petitioner in this case was detained in respect of conspiracy
to smuggle gold under the Customs Act and was sentenced to undergo
imprisonment for nine months. Before the egpiry of the term of imprison-
ment he filed a habeas corpus petition in the Circuit Bench of the Punjab
High Court at Delhi. The petition was dismissed on meriis. It appears that
before the High Court the constitutional validity of section 3(2)(g) of the

30. Supra note 28 at 11 (emphasis added).

31. It is not out of place to point out that Gajendragadakar, CJ., while dealing
with the case of Naresh v. State of Maharashtra had adverted for a while to Daryao v.
State, to say a sentence only: "We apprehend that somewhat similar considerations would
apply to the present proceedings" (at p. 17). One wonders what prevented the learned
Chief Justice not to apply the principle of res Judicata when it would have disposed of
the controversy in the Naresh case. The court could have disposed of the matter by
applying the rule of res judicata without so much judicial rationalization.
32. Ghulam Sarwarv. Union of India, supra note 26. In fact, the learned Chief
Justice seems to have expressed his views regarding Daryao's case:
Conversely, the correctness of that decision does not fall for any re-
consideration in the present petition, for that is outside the scope of the
question now raised before us. (emphasis added).

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 466 JOUkNAL OP TH& INDIAN LAW INSTITUTE (Vol. 16:3
Foreigners Act, 1946 was not canvassed. The learned Chief Justice had
to appreciate the Indian constitutional position in order to get rid of the
rule of res judicata:
But, unlike in England, in India, the person detained can file
original petition for enforcement of his fundamental right to
liberty before a Court other than the High Court, namely this
Court.33
The court further observed that:
The order of the High Court is not res judicata as held by the
English and American Courts either because it is not a judg-
ment or because the principle of res judicata is not applicable
to a fundamentally lawless order.™
The court was further afraid of automatic application of constructive res
judicata which in the opinion of the court, would narrow considerably "the
scope of liberty of an individual."** Thus the Supreme Court because of the
pre-existing decision in Daryao's case had to invent the above reasons so
as to ward off the effect of Daryao's case. There does not appear to be any
valid reason as to why the rule of res judicata should apply to other writs
while it should not apply to habeas corpus petition under article 32. The
court is of the opinion that an original petition under article 32 involves
enforcement of fundamental right to liberty. It may be submitted that under
the similar circumstances, other rights guaranteed under part III of the
Constitution need protection under article 32 of the Constitution. The other
reason gb/Qn by the court is that the rule of res judicata is not applicable to
" a fundamentally lawless order." With respect, it is further submitted that
the expression * 'fundamentally lawless order" has not been explained fully.
Does it mean all those grounds of attack which are applicable in respect of
grant of other writs, or does it mean violation of fundamental procedure of
some important principles of jurisprudence ? Assuming for a moment that
any meaning is assigned to the expression, is it reasonable not to apply the
rule of res judicata in respect of habeas corpus, but to apply it in respect of
other writs? This separate treatment of habeas corpus in respect of appli-
cability of the principle of res judicata simply shows that Daryao's case had
gone wrong and needs reconsideration. Such a judicial construction is not
in conformity with the intention of the Constitution as a whole.
Extension of Daryao'}s case
Assuming for a moment that there is no substantial objection in the
application of principle of res judicata if a matter has been disposed of on
merits under the same article or article of similar amplitude of the Constitu-
33. Id. at 1337. See also, Niranjan Singh v. State of M.P., A.I.R. 1972 S.C.
2215.
34. Ibid, (emphasis added).
35. Ibid.

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1974] PRINCIPLE OF RES JUDICATA AND WRIT PROCEEDINGS 401

tion in which the same cause or matter is being reagitated, it is interesting to

note the extent of the application of the principle of res judicata, not only
in writ matters but also in ordinary suits, not only directly but construc-
tively as well.
A, A converse of Daryao's case
Recently the Calcutta High Court in Metal Corporation of India v. Union
of India5* applied the principle of res judicata in a converse case though the
order rejecting the petition by the Supreme Court was not a speaking order.
In the above case, Metal Corporation of India (Acquisition of Undertaking)
Act, 1966 was passed by Parliament. The petitioner being aggrieved by
the Act filed a petition under article 32 before the Supreme Court. After
hearing the petition at the admission stage, it was dismissed in limine.
Thereafter, the petition in High Court of Calcutta was filed under article
226 of the Constitution. It was urged on behalf of Union of the India that
the dismissal of petition by the Supreme Court under article 32 operated
as res judicata. It was pointed out that, in the petition before the High Court,
there was identity of grounds and parties. It was further contended that the
dismissal of petitioner's application by the Supreme Court was dismissal on
merits on the ground that no fundamental right was involved although the
order was not a speaking order. It was asserted that the question of rejection
of the application under article 32 on any other grounds namely laches or
the existence of alternative remedy could not arise as those were not grounds
on which the Supreme Court had rejected the petition. The only ground
on which the Supreme Court rejected the petition was that no fundamental
right of the petitioner had been violated. The High Court accepted this
contention and observed:
The dismissal of the petition by the Supreme Court in limine must
be taken to be dismissal on the ground that no fundamental
right of the petitioners had been violated.37
And the Supreme Court "should be taken to have dismissed the petition"
on the ground that no fundamental right under article 31(2) of the Consti-
tution was violated.38 Moreover, Mitra, J., in the instant case stated
that "the absence of a speaking order" makes no difference.39
We do not agree with the above view of the Calcutta High Court,
The logical deduction that mere rejection of petition a under article 32 should
be taken as the dismissal on merits lands us in great difficulty. Two stages
in the writ process are quite perceptible: admission stage and merit stage.

36. A.LR. 1970 Cal. 15.

37. Id. at 24.
38. It is notable that unlike in the Supreme Court, "numerous grounds were
mentioned in the petitions filed in the High Court under Art. 226 of the Constitution".
39. Supra note 36 at 24.

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408 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 16 : 3

In the first stage, a prima facie case is established. Thereafter only, a stage of
hearing comes. At the latter stage, the claims of the parties are judicially
disposed. There are sufficient indications to this even in Daryao's case.40
The Supreme Court was emphatic in stating the law:
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.41
The Supreme Court further observed:
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.42

The court further added:

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. 32.43

Even after quoting the Supreme Court observation in Daryao's case the
Calcutta High Court succumbed to the argument of the Attorney-General
for the respondent that "present petition was barred by res judicata."44
The view of the Calcutta High Court in the instant case may appear
somewhat logical but in essence the rejection of petition by the Supreme
Court in limine was of non-speaking nature and to regard even such an
order of any court as on merits is to confuse the very concept. In effect
the concept of "merits" has been devalued in the world of law.
It is strange to note that even after holding that the rejection of petition
by the Supreme Court under article 32 although of a non-speaking nature is a
bar as res judicata, the learned judge proceeded to consider "various other
questions"45 in the petition before the High Court. Normal adherence to
the principle of res judicata has the effect of complete bar as to the exercise
of jurisdiction in that particular case but such is not the case in the Metal
Corporation v. Union of India.**

40. Supra note 8 at 1465,

41. Id. at 1466.
42. Ibid.
43. Ibid.
44. Supra note 36 at 24.
45. Ibid.
46. Supra note 36.

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1974] PRINCIPLE OF RES JUDICATA AND WRIT PROCEEDINGS 409

B. Decision under article 226 bars a subsequent suit

The Supreme Court has not even hesitated to take the stand that a
decision under article 226 would bar the jurisdiction of the court in a regular
suit. A few facts of Gulabchandw. State of Gujarat*7 may be noted for the
present purpose. The appellant stood surety for certain contractors who
had entered into contracts with the government for felling trees and removing
timber from forests. Forest Officers of Bombay proceeded to realize the
balance from the appellant due from the contractors, and the concerned
authority took steps to attach the property of the appellant. The appellant
filed a petition in the Bombay High Court contending that he was
discharged as surety. The High Court dismissed the writ petition.
A suit was filed again urging that he was discharged as surety and for
a permanent injunction. The trial court held that the judgment of the High
Court in the writ petition barred the suit. On appeal, the district judge
agreed with the trial court. The High Court on appeal accepting the plea
of res judicata held that amount due from the appellant (not considered in
the writ petition) could be determined and held the appellant liable under
surety agreement. After the rejection of the letters patent appeal, the
appellant approached the Supreme Court by special leave. It was urged
that the decision in the writ petition operated as res judicata as against a
regular suit.
On consideration of case law and general principles of res judicata, the
majority was of the view that the provisions of section 11 of the Civil
Procedure Code, not being exhaustive, an earlier decision in a writ petition
shall be res judicata between the same parties on the same cause in the sub*
sequent regular suit.
Extension of the principle of res judicata in such a situation is not
correct. First, applicability of order 2, rule 2 of the Civil Procedure Code
was raised. It was urged that the said rule would apply with respect to such
part of the cause of action for which no relief was sought in the writ
petition but the majority tried to repel the contention by logical
deduction from a reading of sub-rules (1) and (2) of rule 2, order 2. It
observed:
By its very language, these provisions do not apply to the contents
of the writ petition and consequently do not apply to the contents
of a subsequent suit.48
Whenever a suit is filed, the relevant provisions of the Civil Procedure
Code are automatically attracted and the suit in question is governed by the
relevant law applicable. Here the relevant law applicable at the moment of
institution of a suit is the Civil Procedure Code. It is a different thing to say
that writ proceeding should be treated as suit proceeding for the purpose of
application of the honoured principle of res judicata. Justice Subba Rao's
47. A.I.R. 1965 S.C. 1153,
48 Id at 11 S9.

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410 JOUR \AL OF THE INDIAN LAW INSTITUTE [Vol 16 : 3

apt observations may be noted:

The expression "suit" has not been defined in the Code, but S.26
thereof says that every suit shall be instituted by the presentation
of a plaint or in such other manner as may be prescribed. It
is not urged that an application under Art. 226 of the Consti-
tution is a suit within the meaning of S.26 or S.l 1 of the Code.49
The very factum of institution of a suit attracts the provisions of the
Civil Procedure Code (here section 11 of the code), the application of which
requires that a previous proceeding has emanated from the context of a suit.
According to Subba Rao, J., it could not be the "intention of the legislature"
to invoke the subsequent suit "so as to render the section nugatory." The
moment the question of application of the res judicata in a suit arises, the
issue whether section 11 is exhaustive becomes less important in view of the
express provision of law in the Civil Procedure Code which governs the
matter. Second, it should be at once clear that there is a fundamental
difference between the scope of enquiry possessed by the High Courts and the
Supreme Court under writ proceedings and the courts under ordinary pro-
ceedings relating to a suit. Under article 226, availibility of the remedy by
way of writ mechanism is discretionary whereas remedy by way of institution
of suit is as of right. Majority has placed reliance on two types of cases:
(/) those cases which have been decided under article 32 or article 226.50 and
(//) cases relating to civil matters arising under civil procedure.51 The first
group of cases can very well be distinguished from the second one. It has
been observed earlier that the function of the courts in writ jurisdiction is
supervisory, not appellate. They have not to review or reweigh the evidence
and substitute their judgment.52 If this basic premiss is adopted, the
Supreme Court's logic in Gulab Chand case falls on the ground. Very
recently the Supreme Court of India while dealing with a petition under
article 32 of the Constitution observed:
The facts stated in the grounds have to be accepted as correct
and it is not open to this Court to enquire into their truth like a
court of appeal.53

49. Id. at 1155.

50. Daryao v. State of U.P., supra note 8 ; M.S.M. Sharma v. Shri Krishna
Sinha, supra note 8; The Amalgamated Coalfields Ltd., and another v. Janapada Sabha,
Chindwara, A.I.R. 1964 S.C. 1013; Denial Modi v. Sales Tax Officer, A.I.R. 1965 S.C.
1150.
51. Duchess of Kingston's case, (1776) 2 Smith's LC. 13th Ed. 644 ; Sheoparson
Singh v. Ramandan Singh, supra note 8; Smt. Rajlakshmi DasVs case, supra note 8.
52. Basappa v. Nagappa, supra note 11 at 444; H.V. Kamath v. AhmadIshaque.
sup -a note 11; G.L. Bansidhar v. Union of India, supra note 11; State of U.P. v.
Dr. Vijey Anand, supra note 11; Northern Railway Co-operative Credit Society v.
Industrial Tribunal, (1967) 2 L.LJ. 46.
53 MasoodAlam v. Union of India, A.I.R. 1973 S.C. 897 at 904.

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1974] PRINCIPLE OF RES JUDICATA AND WRIT PROCEEDINGS 411

The concept of appeal involves the idea that the higher court have
similiar amplitude or power over fact as well as law. When the courts under
articles 226 and 32 are not to act as courts of appeal, it is difficult
to appreciate the view that a decision of High Courts under article
226 bars the regular suit. Under a regular suit, a detailed procedure under
the Civil Procedure Code is followed and a comprehensive enquiry is
accomplished, finally disposing of the rights and obligations of the parties,
but such is not the case with respect to writ proceedings. We have seen
earlier that judicial process under the two sets of judicial mechanism differs
fundamentally not only from the standpoint of form but substance also.
The grant of appropriate remedy under the writ process is for the protection
of important and cherished rights which demand an immediate judicial
repair. Third, reference to cases (as noted earlier) by the Supreme Court
relates to suits. Even reference to Duchess of Kingston's case presupposes
that there have already been "civil suits."54 The view of the Supreme
Court that a writ decision should be held as a bar to the institution of a
regular suit is not a sound proposition.
C. Principle of constructive res judicata
The Supreme Court has further applied the principle of constructive
res judicata which is too technical in its nature in writ proceedings under
articles 226 and 32. Though the Supreme Court in Amalgamated Coal
fields Ltd. v. Janapada Sabha55 expressed the view, that the constructive
res judicata is a special and artificial form of res judicata and it should not
apply to writ petitions, the court has reached differently in Devilal v. Sales
Tax Officer?* In the latter case57 the validity of the order of assessment
under Madhya Bharat Sales Tax Act, 1950 was challenged on the ground
of invalid delegation of duty under section 19 and wrong assessment. The
writ was dismissed and appeal to the Supreme Court was also rejected. The
Supreme Court in the instant case did not allow certain additional points to
be raised and the court had not expressed any opinion on those points on
merit.58
In the subsequent writ petition out of which this appeal has arisen
those two additional grounds were mentioned. The learned Chief Justice
conceded the technical or artificial quality of the rule of res judicata but
proceeded to state that "if constructive res judicata is not applied to such
(writ) proceedings a party can file as many writ petitions as he likes and take
one or two points every time."59 Moreover, the Chief Justice had to
distinguish his own former judgment in Amalgamated Coalfields Ltd.,m on
54. Supra note 47 at 1161.
55. Supra note 50.
56. Supra note 50.
57. Both the cases have been decided by Gajendragadkar, CJ,
5S. DevilaVs case, supra note 50 at 1151.
59. Id. at 1153.
60. Supra note 50.

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very thin and formal ground:

[T]he said general observations must be read in the light of the
important fact that the order...was in relation to a different
period and not for the same period as was covered by the earlier
petition.61
The application of constructive res judicata in writ matters will
preclude the court from considering significant questions of constitutional
importance. It is not in the interest of the development of constitutional law.
One would have expected that at least constructive res judicata
would not be applied in fifing a regular suit but Union of India v. Nanak
Singh*2, is a further step towards extension of the rule. In this case, the
services of the respondent were terminated. A writ was filed in the High
Court. Two grounds were urged: one, the petitioner was not afforded proper
opportunity to show cause ; and two, the authority terminating the services
was not competent. The High Court ultimately disposed of the matter on
the first ground as arguments were "advanced mainly on that point". The
respondent filed a regular suit in the court of a senior sub-judge, Delhi, and
it was urged that the authority terminating his services was lower in rank
than the competent authority and so lacked the power. On the first point
the High Court had given "detailed reasons". And, in respect of the
second plea, the Supreme Court was of the view that the point "must be
deemed to have been negatived by the High Court". The Supreme Court
further observed:
But what operates as res judicata is the decision, not the reasons
given by the Court in support of the decision.63
We do not agree fully. Before a decision or determination may
operate as res judicata it should be, at least, accompanied by reasons. It
would be destructive of the very foundation of the principle of res judicata
to apply a decision on a point which has not been merited with reasons.
This is particularly true when a decision under writ jurisdiction is urged to
work as res judicata.****

D. Disciplinary proceedings
In Padmanabhan Nair's case,64 the services of the petitioner were
terminated. The dismissal was quashed by the High Court of Kerala under

61. DevilaVs case, supra note 50 at 1153.

62. A.I.R. 1968 S.C. 1370.
63. Id. at 1371.
63a. Keshavananda v. State of Kerala, A.I.R. 1973 S.C. 1461. The Chief Justice
observed at p. 1542: "... unless the reasons are given for a judgment it is difficult to be
confident about the ratio of the decision."
64. Padmanbhan Nair v. State of Kerala, (1966) 1 .L.L.J., 845.

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1974] PRINCIPLE OF RES JUDICATA AND WRIT PROCEEDINGS 413

a writ proceedings.65 Fresh proceedings were started by the government

against the petitioner under a different set of rules, viz, Madras Rules. In
a subsequent writ petition filed by the petitioner it was held that the
original writ petition oberated as constructive res judicata as against the
proceedings contemplated by the state under Madras rules. It is important
as well as imperative to refer to the following conclusion of Justice
Vaidialingam:
Having once attempted to sustain the disciplinary proceedings
taken against the petitioner on the basis of Kerala Rules and in
the alternative on the Travancore-Cochin Rules and having
failed to take any other alternative plea, it is no longer open to
the State now to fall back upon the Madras Rules and initiate
fresh disciplinary proceedings against the petitioner for the
same acts.66
After an elaborate discussion on almost all aspects of law, the learned
judge has applied the rule of constructive res judicata in the instant case. As
the result "the proceedings contemplated by the State on the basis of the
Madras Rules must be held to be barred by constructive res judicata by virtue
of the decision rendered by this Court;"67
It is quite apparent that effect of the application of constructive res
judicata has been far reaching, quashing even disciplinary proceeding. It
is a well established rule of res judicata that both proceedings must be of
judicial nature, and, in the subsequent proceedings the plea of res judicata
is raised. Here, the analysis of the facts of the case does not reveal that the
proceedings (relating to discipline) initiated by the government is such a
proceedings (of judicial nature) which can at any rate attract the solemn
principle ofres judicata, least to say anything of constructive res judicata.
The decision raises the question of great significance as to whether the
principle of res judicata should be stretched to such an extent that even
ordinary disciplinary proceedings are kept at nullity even though the fresh
proceedings might have been started under different set of rules.
Conclusion and suggestions
In the light of above discussion, the following submissions may be
made:
1. A decision under article 32 should be held as res judicata if a fresh
writ petition is filed in respect of the same cause or matter which
has already been judicial] zed on merits in previous writ petition
between the same parties under the same article.
2. A decision on merits under article 226 should be held as res judicata
if subsequently the same matter or cause is raised in a subsequent

65. Writ Petition No. 1493 of 1962.

66. Supra note 64 at 862 (emphasis added).
67. Ibid, (emphasis added).

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414 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 16 : 3

writ petition under article 226 or an article of similar amplitude

between the same parties.
3. The principle of constructive res judicata should be avoided as far
as possible (particularly where questions of constitutional signi-
ficance arise) in the above cases.
4. The concept of "merits" as enunciated by the Supreme Court in
Daryao's case is satisfactory. However, the decision of the
Calcutta High Court in Metal Corporation's case should not be
followed.
5. A writ decision should not be held to bar a subsequent regular
suit. The principle of constructive res judicata as against the
regular suit has to be totally avoided.

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