Date: 26.09.

20

CIVIL PROCEDURE CODE (Homework 07)

Ghulam Sarwar v. Union of India (AIR 1967 SC 1335)

It was contended that the writ of habeas corpus filed in the Circuit Bench of the Punjab High
Court was dismissed as res judicata operated and barred the maintainability of the present
application. In Daryao v. The State of U.P1, the High Court dismissed a writ petition
under Article 226 of the Constitution. The petitioner therein did not prefer an appeal against that
order to the Supreme Court; but he filed an independent petition under Article 32 of the
Constitution in this Court on the same facts and for the same reliefs. This Court held that the
petition in this Court would be barred by the general principles of res judicata. That decision
related to a right claimed by the petitioners therein. The petitioners in that case sought to enforce
their fundamental right to property which had been negated by the High Court in its order made
on an application presented by them under Article 226 of the Constitution and upheld the plea of
res judicata.

On the question of res judicata, the English and the American Courts agreed that the principle of
res judicata is not applicable to a writ of habeas corpus, but they came to that conclusion on
different grounds. It was held in England that a decision in a writ of habeas corpus was not a
judgment and hence would not operate as res judicata and on that basis it was thought at one
time that a person detained could file successive applications before different judges of the same
High Court. But subsequently the English courts held that a person detained cannot file
successive petitions for a writ of habeas corpus before different courts of the same Division or
before different Divisions of the same High Court on the ground that the Divisional Court speaks
for the entire Division and that each Division for the entire Court, and one Division cannot set
aside the order of another Division of the same Court. The American Courts reached the same
conclusion, but on a different principle.

If the doctrine of res judicata is attracted to an application for a writ of habeas corpus, there is no
reason why the principle of constructive res judicata cannot also govern the said application, for
the rule of constructive res judicata is only a part of the general principles of the law of res
1
1961 AIR 1457.
judicata, and if that be applied, the scope of the liberty of an individual will be considerably
narrowed. The present case illustrates the position. Before the High Court the petitioner did not
question the constitutional validity of the President's order made under Article 359 of the
Constitution. If the doctrine of constructive res judicata be applied, this Court, though it is
enjoined by the Constitution to protect the right of a person illegally detained, will become
powerless to do so. Therefore, the order made in the petition for habeas corpus filed by the
petitioner does not operate as res judicata and this Court will have to decide the petition on
merits. 

Lallubhai v. Union of India (AIR 1981 SC 728)

The preliminary question to be considered was, whether the doctrine of constructive res judicata
applies to a subsequent petition for a writ of habeas corpus on a ground which he “might and
ought” to have taken in his earlier petition for the same relief. In England, before the Judicature
Act, 1873, an applicant for habeas corpus had a right to go from court to court, but not from one
Bench of a court to another Bench of the same Court. After the Judicature Act, 1873, this right
was lost, and no second application for habeas corpus can be brought in the same court, except
on fresh evidence.

In Daryao's case2 , it was held that where the High Court dismisses a writ petition under Article
226 of the Constitution after hearing the matter on the merits on the ground that no fundamental
right was proved or contravened or that its contravention was constitutionally justified, a
subsequent petition to the Supreme Court under Article 32 of the Constitution on the same facts
and for the same reliefs filed by the same party would be barred by the general principle of res
judicata. It was further clarified that the rule of res judicata, as indicated in Section 11 of the
Code of Civil Procedure, has no doubt some technical aspects, for instance, the rule of
constructive res judicata may be said to be technical; but the basis on which the said rule rests is
founded on considerations of public policy. It is in the interest of the public at large that finality
should be attached to the binding decisions pronounced by Courts of competent jurisdiction, and
it is also in the public interest that individuals should not be vexed twice over with the same kind
of litigation. If these two principles form the foundation of the general rule of res judicata, they

2
1961 AIR 1457.
cannot be treated as irrelevant or inadmissible even in dealing with fundamental rights in
petitions filed under Article 323. Though a right is given to the citizen to move this Court by a
petition under Article 324 and to claim an appropriate writ against the unconstitutional
infringement of his fundamental rights, yet, in dealing with an objection based on the principle of
res judicata may even apply to a successive petition. 

Before the High Court, the petitioner did not question the constitutional validity of the
President's order made under Article 359 of the Constitution. If the doctrine of constructive res
judicata is applied, this Court, though enjoined by the Constitution to protect the right of a
person illegality detained, will become powerless to do so.

The position that emerges from a survey of the above decisions is that the application of the
doctrine of constructive res judicata is confined to civil actions and civil proceedings. This
principle of public policy is entirely inapplicable to illegal detention and does not bar a
subsequent petition for a writ of habeas corpus under Article 32 of the Constitution on fresh
grounds, which were not taken in the earlier petition for the same relief.

Iswar Dutt v. Land Acquisition Collector (AIR 2005 SC 3165)

It is not in dispute that the High Court issued a writ of mandamus. It is also not in dispute that the
direction of the High Court was acted upon. The principle of res judicata, as is well-known,
would apply in different proceedings arising out of the same course of action but would also
apply in different stages of the same proceedings. As the judgment and order passed had attained
finality, hence the Respondents herein could not have raised any contention contrary thereto or
inconsistent therewith in any subsequent proceedings. The said order of the Land Acquisition
Officer never came to be questioned and, thus, attained finality.

Section 18 of the Act provides that any person who has not accepted the award may file an
application for referring the dispute for determination of the court inter alia as regard the amount
of compensation.

3
Article 32, Indian Constitution, 1950.
4
Ibid.
The State could have filed such an application under Section 18. It did not choose to do so. Only
the Appellant herein took recourse to the said provision culminating in passing of the impugned
judgment of the High Court.

Thus, the award of the Land Acquisition Officer directing payment of additional interest has also
attained finality. The principle of res judicata is a species of the principle of estoppel. When a
proceeding based on a particular cause of action has attained finality, the principle of res
judicata shall fully apply.

Yet recently in Swamy Atmananda and Ors. v. Sri Ramakrishna Tapovanam and Ors., JT 5 in
which one of us was a party, this Court observed:

"The object and purport of principle of res judicata as contained in Section 11 of the Code of
Civil Procedure is to uphold the rule of conclusiveness of judgment, as to the points decided
earlier of fact, or of law, or of fact and law, in every subsequent suit between the same parties.
Once the matter which was the subject-matter of lis stood determined by a competent court, no
party thereafter can be permitted to reopen it in a subsequent litigation. Such a rule was brought
into the statute book with a view to bring the litigation to an end so that the other side may not
be put to harassment.

The principle of res judicata envisages that a judgment of a court of concurrent jurisdiction
directly upon a point would create a bar as regards a plea, between the same parties in some
other matter in another court, where the said plea seeks to raise afresh the very point that was
determined in the earlier judgment."

It was further noticed in Ishwardas v. the State of Madhya Pradesh and Ors.6, this Court held:

"...In order to sustain the plea of res judicata it is not necessary that all the parties to the two
litigations must be common. All that is necessary is that the issue should be between the same
parties or between parties under whom they or any of them claim..."

5
(2005) 4 SC 472.
6
AIR (1979) SC 551.
It is well settled that principles of res judicata can be invoked not only in separate subsequent
proceedings; they also get attracted in subsequent stage of the same proceedings. Once an order
made in the course of a proceeding becomes final, it would be binding at the subsequent state of
that proceeding.

Furthermore, a writ of mandamus is required to be obeyed unless a judgment is overruled or

legislation by way of validating statute is brought into force.

The High Court although has a wide power in terms of Section 107 of the Code of Civil
Procedure but it could not have gone outside the pleadings and make out a new case.