KAMALA KRISHNAN NAIR Vs. NAIR SERVICE SOCIETY

JUDGEMENT

(1.) THE petitioner in the Writ Petition is the appellant. The first respondent/the first respondent in the Writ Petition is the Nair Service Society represented by its President and respondent Nos.2 to 6 are respondent Nos.2 to 6 in the Writ Petition. The Writ Petitioner who is a member of the first respondent Nair Services Society, a company registered under the Travancore Companies Regulation-I of 1092 (M.E) as a company limited by guarantee filed the Writ Petition claiming the following reliefs:-

(2.) HOWEVER , before the learned Single Judge arguments were addressed by the Writ Petitioner only in support of relief No.2. The case of the Writ Petitioner has been stated precisely in paragraphs 2, 3, 4 and 5 of the impugned judgment of the learned Single Judge and we do not think it necessary to refer to the facts again. A counter affidavit was filed on behalf of the first respondent and the learned Single Judge would take the view that having regard to the impact of R1(b) judgment rendered by a Civil Court it is appropriate that the question of maintainability of the Writ Petition was examined. Examining that question, the learned Single Judge would hold that R1(b) judgment would bar the Writ Petitioner from urging the contentions presently urged and canvassing the invalidity of certain provisions of Memorandum and Articles of Association of the first respondent Company. Holding that the principle of res judicata applies, it was held that the Writ Petition is not maintainable and accordingly on that score the Writ Petition was dismissed without examining the merits of the matter.

(3.) SRI .T.K.Pankajakshan Pillai would argue that the finding of the learned Single Judge that the Writ Petition is barred by res judicata in view of Ext.R1(b) judgment is totally erroneous. According to the learned counsel this Court while exercising jurisdiction under Article 226 of the constitution to decide whether Ext.P4 Memorandum and Articles of Association of first respondent is in contravention of the Companies Act is quite competent to ignore R1(b) decision taken by a Subordinate Court. The learned counsel argued that at any rate decision of question of law will not operate as res judicata and it is only decision of questions of fact which will operate as res judicata. The learned counsel submitted that res judicata will apply only between courts of co-ordinate jurisdiction and hence this Court being a constitutional court could decide the question independent of R1(b) judgment. It was argued that it was on the ground of limitation that the Sub Court disallowed relief to the appellant. Limitation is a pure question of law and could be re-considered by this Court independent of Ext.R1(b) judgment. We were taken extensively through R1(b) judgment. Various judicial pronouncements were relied by Sri.Pankajakshan Pillai in support of his submissions. He would refer us Section 3 of the Kerala Non-trading Companies Act 1961. Reliance was placed by him on the judgment of the Supreme Court in Mathura Prasad Sarjoo Jaiswal and others v. Dossibai N. B. Jeejeebhoy (AIR 1971 SC 2355) for expatiating why the judgment of the Civil Court in this case will not operate as res judicata. For the same purpose he relied on the judgment of the Supreme Court in State of Maharashtra v. M/s National Construction Co. Bombay (AIR 1996 SC 2367). Sri.Pillai relied on the judgment of the Supreme Court in Isabella Johnson v. Susai (1990(2) KLT 968) to argue that decision on pure question of law unrelated to the rights of the parties to a previous suit will not be res judicata in a subsequent suit. Sri.Pillai relied on the judgment of a Division Bench of this Court in P.C.Aravindhan v. M.A.Kesavan (1973 KLT 70) for expatiating his contention that the impugned provisions in the Memorandum and Articles of Association of the first respondent are violative of the provisions of the Companies Act. It was pointed out by Sri.Pillai that the learned Single Judge has very quickly concluded that the civil court's judgment operates as res judicata for the writ petitioner even in the absence of pleadings relating to the earlier suit. According to him in order that a plea of res judicata is accepted the respondent should have been insisted to produce the pleadings relating to the suit. Sri.Pillai relied on the judgment of a Division Bench of this Court in Balakrishnan Alias Balan v. Venugopalan Alias Venu (2006 (1) KLJ 577) in support of his argument that there is no limit for the jurisdiction under Article 226 and that the above jurisdiction can be invoked for undoing illegality at any stage. Sri.Pillai relied on Dr. Kashinath G. Jalmi v. The Speaker [(1993) 2 SCC 703]. Counsel argued relying on the above decision that delay shall not stand in the way of rendition of justice.