BUA DASS KAUSHAL Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THIS second appeal has been placed before the Division Bench in pursuance of an order passed by my learned brother D. K. Mahajan J. , on 9-12-1963. It had initially come up for hearing before him on 13-5-1963 when the principal contention raised before him was that the same matter had earlier been agitated by the appellant in Civil Writ earlier been agitated by the appellant in Civil Writ No. 185 of 1956 directed against this very order of dismissal which is challenged in the present proceedings on the allegation that the appellant had not been afforded a reasonable opportunity and that the said petition was dismissed by Bishan Narain j. , whose order was confirmed on Letters Patent appeal by Bhandari C. J. and dulat J. After the decision of the letters Patent Bench the appellant instituted the present suit in which the same point is again agitated. The suit was dismissed by both the Courts below the lower appellant Court holding the earlier order of this court in writ proceedings to operate as res judicata. Holding that the plea of res judicata had not been specifically pleaded. the learned Judge framed two additional issues and sent the case back to the trial Court for determination of those issues. The additional issues are in the following terms: 1. Whether the decision of the Letters Patent Bench in Civil Writ No. 185 of 1956 operates as res judicata in the present suit? 2. Whether the plea of res judicata has been waived by the state?

(2.) IN pursuance of this order the trial Judge Shri Muktar Singh Gill has reported that the dismissal of the writ petition file by the plaintiff does not operate as res judicata in the subsequent suit brought on the same ground and that the defendant had waived this pawls of res judicata. After the receipt of the report from the trial Court the appeal was again posted before my learned brother on 912-1963 and Shri L. D. K. Kaushal on behalf of the State challenged the report contending that the decision of Sharma J. , in Smt. Bimla Chopra v. Punjab State 65 Pun LR 945 on the basis of which the trial Court has negative the plea of res judicata required reconsideration. This challenge was sought to be supported by a decision of the Bombay High Court in Manehem S. Yeshoova v. Union of India AIR 1960 Bom 196 and by Daryao v. State of U. P. , AIR 1961 S C 1457. It is this challenge case 65 Pun LR 945 which has necessitated the present reference.

(3.) SHRI M. S. Punnu on behalf of the respondent challenging the report has to begin with drawn out attention to both the decisions mentioned above. The observations in Manahem's case AIR 1960 Bom 196 relied on by the respondent undoubtedly support his contention in broad and general terms. The matter has however been dealt with at length by the Supreme Court in Daryao's case AIR 1961 S C 1457. Our attention has been invited to paragraph 11 of the judgment in which Gajendragadkar J. , (as he then was) speaking for the Court expressed himself thus: