GULABCHAND CHHOTALAL PARIKH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) I have perused the judgment prepared by my learned brother Raghubar Dayal, J. I regret my inability to agree. I shall briefly give my reasons.

(2.) Raghubar Dayal, J. has stated the facts fully in his judgment. I need not restate them. The few facts relevant to the question raised are these : The appellant filed a petition in the Bombay High Court under Art. 226 of the Constitution raising the question that he was discharged as surety, and the High Court negatived his contention. In the suit from which the present appeal arises he again rises the plea that he was discharged as surety : in other words, he seeks to reopen in the present suit the finding given by the High Court in the writ petition. The question is whether the appellant is barred by res judicata to raise the said question in the suit.

(3.) Section 11 of the Code of Civil Procedure deals with the doctrine of res judicata in the context of a suit. It says, inter alia, that no Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit. To invoke this doctrine, the section lays down many conditions. The most essential condition is that the matter in question should have been directly and substantially in issue in a former suit. The expression "suit" has not been defined in the Code, but S. 26 thereof says that every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed. It is not argued that an application under Art. 226 of the Constitution is a suit within the meaning of S. 26 or S. 11 of the Code. It follows, and indeed it is not disputed, that S. 11 of the Code does not bar the appellant from raising the question of the discharge of his suretyship again in the present suit.