MAHAVIR TOBACCO Vs. GOVERNMENT OF INDIA

JUDGEMENT

(1.) THIS appeal is preferred against the judgment of the learned Subordinate Judge, Guntur, dismissing the plaintiff-appellants suit on a preliminary ground, namely, that it is barred by res judicata. The relevant facts are that the plaintiff-appellant is a dealer in un-manufactured tobacco scrap. Certain proceedings were taken against him under the Central Excise Act by the Assistant Collector of Central Excise, Guntur, and after hearing the plaintiff, he passed an order dated 25-7-1971 holding that the plaintiff is guilty of violation of several provisions of the Act and the rules made thereunder. On that account, he made a demand in a sum of Rs. 1,94,451.64 Ps., towards the Excise duty. He imposed a small fine as well. The plaintiff preferred an appeal which was dismissed by the Appellate Collector, Central Excise, Madras. It appears that the tobacco concerned was also confiscated. The order of the Assistant Collector as confirmed by the Appellate Collector was challenged in this Court by way of a writ petition being W.P. 2716/74. THIS writ petition came up for hearing before one of us. (B.P. Jeevan Reddy, J.) and was dismissed under an order dated 20-2-1976. The four contentions raised by the Counsel for the plaintiff who was the writ petitioner therein were dealt with on merits and negatived. Against the order dismissing the writ petition, the plaintiff filed a writ appeal, being W.A. No. 325/76. The Bench observed :

(2.) IT is thereafter that the plaintiff came forward with the present suit for a declaration that the order of the Assistant Collector dated 25-7-71 and the appellate order dated 17-4-74 the illegal, capricious and ultra vires and for a permanent injunction restraining the defendants, namely, the Central Excise Authorities and the Government of India from enforcing the said orders. The grounds upon which the said declaration and permanent injunction are sought are absolutely the same on which the said orders were challenged in the writ petition and which grounds were negatived by this Court. The defendant raised an objection that the judgment of this Court in Writ Petition and writ appeal operates as res judicata and bars the present suit. This issue was tried as a preliminary issue and was upheld by the trial court and we agree with it. There can be little doubt today about the proposition that the plaintiff having chosen to challenge the impugned orders in a writ petition and writ appeal and having failed therein, cannot be allowed to file a suit on the very same grounds. The judgment of this Court does operate as res judicate. IT is indeed unnecessary to refer to the authorities on this aspect since it is so well-settled. Reference however may be made to Union of India v. Nanak Singh, A.I.R. (1968) S.C. 1 and State of Punjab v. B. D. Kaushal, A.I.R. (1971) S.C. 1676. The appeal accordingly fails and is dismissed with costs, throughout.