DHANI RAM Vs. FINANCIAL COMMISSIONER

JUDGEMENT

(1.) The ahort point requiring determination in this appeal is whether an order dismissing an earlier writ petition under Articles 226 and 227 of the Constitution with the word "dismissed" oprates as res judtcata in a sabsequent similar petition on identical facts. The learned Single Judge held that it does so operate, but this view is very strongly contested on behalf of the appellant by Shri Manmohan Nath, the learned counsel appearing for him.

(2.) In support of the appeal, reliance has been placed on a judgn ment of the Supreme Court in Daryoo Ram v. State of U.P., and paragraph 19 of the judgment at p. 1466 of the report has been specifically died upon That paragraph reads as under :-

(3.) After hearing the learned counsel for the appellant, we are far from satisfied that the view taken by the learned Single Judge is in any way incorrect. On the other hand, his view is fortified by the Full Bench decision of the Punjab High Court, with which we are in respect. ful agreement. In our view, there is no obligation for a Motion Bench of the High Court dismissing a writ petition in limine to make a detailed speaking order in the sense that it must record reasons for disagreeing with the contentions raised, Neither does Article 226 enjoins the Bench to do so, nor do the Rules framed by the High Court. It would really be a question to be decided in each case whether or not an order of dismissal however expressed is or is not a decision on the meeits of the writ petition so as to attract the rule of res-judicata. When a res is judicata, it would normally bar re-opening of the same res between the same parties. If a writ petition is dismissed, either because it is premature or because there is an alternative remedy available to the litigant, or if the High Court declines to go into the merits in the exercise of its judicial discretion, then such an order may not operate as res judicata on the merits because in that event, the matter cannot be considered to have been heard and finally decided. But if such is not the position, then in case of dismissal of the earlier petition, the doctrine of res judicata would clearly be attracted. If a point which is sought to be raised later, was no raised or pressed in the earlier proceedings, the rule of constructive res judicata would also bs attracted Conceding that section 11 of the C.P. Code in terms applies only to suits, and is not technically attracted to writ proceedings, the general principles of res judicata, do apply to them and constractive res judicata is indisputably a constituent element of this general doctrine. The application of this doctrine, it may be remembered, is not influenced by any technical consideration of form but by matter of substance within the limits allowed by law. In Devilal Modi v. Sales Tax Officer, Gajendragadkar, C.J. speaking for a Beach of five Judges stated the view of the Court thus :-