CASE DETAILS:
| Bench P.B. Gajendragadkar J. A.K. Sarkar J. K.N. Wanchoo J. K.C. Das Gupta J. N. Rajagopala Ayyangar J. | Case no. (1962) 1 SCR 574 | Acts/law CPC Section 11 Article 32 and 226 of Constitution of India |
INTRODUCTION:
In DARYAO vs. STATE of U.P. a common question of law has been raised before the apex court in a batch of petitions. A preliminary objection was raised to the constitutional maintainability of writ petitions filed under Article 32. The ground for such objection was that similar writ petitions were filed under Article 226 before High Courts which were rejected, therefore principle of res judicata bars the petition under Article 32.
ISSUE:
The issue before the court in batch of writ petitions was as under:
- Whether bar of res judicata can be pleaded against a petition filed under Article 32 of Constitution?
LAW:
Article 32 and Article 226 of Constitution:
Article 32 is the most significant right under Part III of the Constitution, it is the heart and soul of the Constitution. It infers the right to approach the Supreme Court directly in case of abridgment of fundamental rights which are guaranteed under part III of the Constitution. Article 32 itself is a fundamental right and it makes the apex court guarantor and protector of these rights. It infers the power of the Supreme Court to issue any order, direction or writ against the state to enforce and protect the rights engrafted in part III.
Article 226 states the power of the High Courts is to issue such orders, directions, or writs. The power of the High Court under Article 226 is wider than the power of the Supreme Court under Article 32 of the Constitution.
Both the Supreme Court and the High Court are constitutional courts moreover High Courts are not inferior to the Supreme Court though the latter has supervisory power over the former one. The issue in the present case is whether one can approach under Article 32 for the enforcement of rights in a case where a writ petition has already been dismissed under Article 226 of the Constitution. Whether res judicata will be operative on such writ which was filed under Article 32 after the dismissal of the writ under Article 226.
Res judicata:
Section 11 of CPC envisage the rue of res judicata. There is no gainsaying that said rule has some technical aspect, however the same is based on the principle of public policy which is an essential part of the “rule of law”. The rule is based on the principle that no man shall be waxed twice for the same offence and that in the interest of public finality should be attached to the decision rendered by any competent court. If the said rule of res judicata is not invoked in case of infringement of fundamental rights the same will affect public interest.
OBSERVATION:
Discretion of court:
It was contended that it is the discretion of the court to grant the relief under Article 32. However, this court was not satisfied with the contention that rule of res judicata must be applied to the petition under Article 32 as this itself merely gives discretionary power to grant relief.
It was further asserted that where a petition was dismissed under Article 226 the only remedy is to challenge the same by filing a special leave to appeal under Article 136 of the Constitution. Moreover, Article 32 does not confer right to move to Supreme Court by original petition but merely a right to move with appropriate proceeding. The apex court in para 7 of the case in hand did not appreciate these contentions and observed the applicability of res judicata on the basis that right to move to supreme court by filing original petition is a fundamental right guaranteed under part III.
Romesh Thappar vs. State of Madras (1950) SCR 594: The preliminary objection in the said case that petition under Article 32 is not maintainable in a case where party firstly do not resort to High Court under Article 226. Court did not uphold the said contention. As right to move to apex court is itself a fundamental right.
Rule of law:
It is essential of res judicata that the judgment in the former proceeding must be passed by the court of competent jurisdiction. When a judgment is so passed it is binding on the parties unless it is reversed in any appeal, review or revision. The binding character of any judgment rendered by the competent court is an essential part of rule of law.
Invoke plea of res judicata
It is pertinent to mention that order of the High court rendered under Article 226 cannot be assailed under Article 32 as there is appropriate recourse for the challenging the order or direction which were passed by the High Court under Article 226. Jurisdiction of Supreme Court under Article 32 is original jurisdiction and same should not be confused with appellate jurisdiction. Court observed that the plea of non-application of rule of res judicata should not be allowed when the decision passed under Article 226 is final and passed by the competent court.
Thus, it could be construed that the principle of res judicata can also be applicable even against the petition filed under Article 32.
Jurisdiction under 226 and not 32:
The second issue considered by the court in the present case in para 22 is that whether it makes any difference for the application of res judicata that decision passed by the High court is passed under Article 226 and not under article 32?
It is one of the essential of res judicata that court which tries the first suit or proceeding should be competent to try second suit or proceeding. It was observed in para 22 by the court in present case that power of High court under Article 226 is concurrent to power under Article 32. Therefore, the petition which could be entertained under Article 32 cloud also be adjudged by the High court under Article 226. Thus, the plea that judgment of High court cannot be treated as res judicata on the ground that high court can not entertain petition under Article 32 is rejected.
Dismissal of writ under 226:
In para 23 court opined that when a petition has been dismissed under Article 226 on the ground of laches or on the ground that party have efficacious remedy available, in such a case plea of res judicata cannot be availed.
However, in a case where writ petition has been decided on merits and dismissed on the ground that no fundamental right is proved or no right has been infringed their bar of res judicata will be applicable against subsequent petition under Article 32.
In para 25 court evaluated that when writ has been decided on merits under Article 226 and dismissed, the judgment pronounced by the High Court is binding on the parties. Such judgment rendered under Article 226 can not be circumvented by filing a petition under Article 32.
If a writ under Article 226 has been dismissed in limine then applicability of res judicata will depend on the nature of the order. Since there is no speaking order when the petition is dismissed in limine section 11 is not operation, otherwise in a case where there is a speaking order and order is passed on merits writ under Article 32 will be bared.
Habeas Corpus and Res judicata:
Court asserted in para 24 it do not propose to express any opinion whether the plea of res judicata can survive even in case of writ of habeas corpus if dismissed or not adjudicated.
Alternative remedy:
In para 25 court enunciated that the remedies under Article 32 and 226 is not exclusive of each other but cumulative therefore bar of res judicata can be pleaded as the decision passed on merits by the court under Article 226 cannot be bypassed by filing another writ petition under Article 32. Further the said decision is binding on the parties unless the same is revered or modified by the competent court.
Conclusion:
- If a writ under Article 226 is decided on merits and dismissed, decision will continue to survive until same is reversed or modified by an appeal or other appropriate proceedings permissible;
- If writ is dismissed not on merits but on ground of laches or that alternative remedy is available will not attract plea of res judicata as the court has not applied its mind and matter not decided on merits, a speaking order is necessary to establish the essentials of res judicata;
- Rule of res judicata bar another writ under Article 32 on the on the same facts to claim same relief;
- Writ dismissed under Article 226 in limine there res judicata will not be operative if the order is not passed on merits or there is no speaking order at all passed by the court;
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