SHANMUGHA PORAYAR Vs. STATE OF MADRAS

JUDGEMENT

(1.) THIS writ appeal has been filed in order to challenge the notification of the government of Madras under Section 3 of the Madras Hindu Religious and charitable Endowments Act, 1951 in respect of a certain charity conducted by the appellant. The notification extended the provisions of the Act to the particular charity. The appellant filed a suit challenging the notification on the ground inter alia that there was no dedication to the public and that it was only a private trust. He failed in the trial Court, in the first appellate Court and in the second appeal. Thereafter he filed the Writ Petition No. 817 of 1962 challenging the notification on the ground that the Government had no authority to invoke the provisions of the act in respect of this Charity because the beneficiaries under the charity were not exclusively Hindus, e. g. , feeding and distribution of water could apply even in respect of non-Hindus. His contention was that the provisions of the Act could be invoked only if the beneficiaries were exclusively Hindus. In support of this contention, he relied on a decision of a Bench of this Court in The State of Madras v. Seshachalam Chettiar Charities, (1960) 2 Mad LJ 591. This ground of attack of the notification had not, however, been taken in the suit which the appellant had filed earlier. Veeraswami, J. , as he then was, before whom the writ petition came up, recognised the force of the submission that the Government had no jurisdiction to extend the provisions of the Act to this charity because the beneficiaries may not be exclusively Hindus. All the same, the learned Judge declined to interfere in writ proceedings because in his opinion, this ground of attack should have been put forth in the earlier suit and that not having been done, it was not open to the appellant to raise the point in the writ petition after having failed in the suit and the appeals therefrom. The learned Judge also pointed out that there was a delay of four years in filing the writ petition, though he also observed that in mitigation thereof there was the circumstance that the appellant had been fighting this matter in the civil Court. It is against this order of Veeraswami, J. , as he then was, that the present writ appeal has been filed. We are in entire agreement with the learned Judge in his view that the ground of attack of the notification now put forth is not open to the appellant on the principle of constructive res judicata enacted in Explanation IV to section 11, Code of Civil Procedure. This is a ground of attack which might and ought to have been put forth in the suit. In Devilal Modi v. Sales Tax officer, , the assessee was assessed to Sales-tax for 1957-58. He filed a writ petition challenging the order of assessment. It was dismissed by the High court. The assessee filed an appeal to the Supreme Court by special leave. At the hearing, he wanted to raise two new pleas. Permission was refused and the appeal was dismissed. Thereafter the assessee filed another writ petition in the High court putting forth the said two pleas. The High Court examined the pleas on merits and rejected them. The assessee filed an appeal to the Supreme Court. Their Lordships pointed out that the High Court should have dismissed the writ petition on the ground of constructive res judicata and need not have decided them on the merits. They observed at pages 689 and 690:

(2.) THE principle of this decision directly applies to the instant case. The above decision was quoted with approval in Gulabchand Chhotalal Parikh v. State of bombay (Now Gujarat), The appellant in that case had stood as surety for certain contractors who had taken in auction the forest produce on condition of paying certain sums of money to Government. The appellant contended that he had been discharged from his liability by reason of the act of the Government allowing the contractors to remove some to the produce without the knowledge of the appellant. He filed a writ petition in the High Court and that was dismissed on merits. Subsequently he filed a suit on the same basis. It was held by the majority of their Lordships that the decision in the writ petition operated as res judicata in the suit. The decision emphasises that the principle of res judicata is based on sound policy and that it does not depend on the nature of the earlier or the later proceedings. The appellant against relied on a decision of the Punjab High Court. Their Lordships in holding that it had been wrongly decided observed at page 573.

(3.) SRI T. R. Srinivasan, the learned counsel for the appellant has relied on two decisions, namely M. P. Sarjoo Jaiswal v. D. N. B. Jeejeebhoy, and Palanippa Chettiar v. Babu Sahib, (1971) 2 Mad LJ 22, but they are not relevant.