DRAFTING,PLEADING AND CONVEYANCING

CASE ANALYSIS: DARAYO V. STATE OF U.P.

TANMAY RAI-15010323115

DIPTI BHARADWAJ – 15010323118

CHITRA LOUNGANI-15010323162

IXth SEMESTER

BA LLB – B

In

SEPTEMBER 2019

Under the guidance of

Prof.Pankaj Prakashrao Umbarkar

Symbiosis Law School, Hyderabad

Symbiosis International University, PUNE

 INDEX

TOPICS PAGE No.

CERTIFICATE……………………………………………………………….

ACKMOWLEDGMENT……………………………………………………..

ABBREVIATIONS…..………………………………………………………..

ABSTRACT…………………………………………………………………..

IRAC ANALYSIS……………………………………………………………

i. INTRODUCTION……………….………………………..........

ii. FACTS ….…………..………………………………………….

iii. ISSUES………………………………………………….….......

iv. RULES………………………………………………………….

v. ANALYSIS……………………………………………………..

vi. CRITICISMS OF THE JUDGEMENT……………….……...

vii. IMPLICATIONS OF THE JUDGEMENT………………….

SUGGESTIONS & CONCLUSIONS…………………………………..…..

BIBLIOGRAPHY…………………………………………………………….
 CERTIFICATE

The Project entitled “Case Analysis: Darayo V. State Of U.P.” submitted to the Symbiosis
Law School, Hyderabad for Drafting,Pleading and Conveyancing as part of
assessment is based on our original work carried out under the guidance of Prof.
Pankaj Prakashrao Umbarkar from July to November. The material borrowed from
other sources and incorporated in the project has been duly acknowledged.

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 ACKNOWLEDGEMENT

This project would not have been possible without the support and guidance of many
individuals who developed this project and willingly helped us out with the best of
their abilities. We would like to extend our sincere thanks to all of them.

We are indebted to Symbiosis Law School, Hyderabad for their guidance and constant
supervision as well as for providing necessary information regarding the project.

We would like to express our gratitude towards the faculty in charge for his kind co-
operation and encouragement which helped us in the completion of this project.
 LIST OF ABBREVIATIONS

 Ors. Others
 v. Versus
 U.P. Uttar Pradesh
 J. Justice
 FIRAC Facts,issues,rules,analysis,conclusion
 A. Article
 S. Section
 UOI Union of India
 SCC Supreme Court Cases
 SC Supreme Court
 CASE ANALYSIS:

Daryao and ors. .......................................................................................................... PETITIONER

v.

The State of U.P. and ors. (And connected petitions) .............................................RESPONDENT

(1961 AIR 1457)

Date of judgement : 27 March, 1961

Quorum:-

 Gajendragadkar
 P.B., Sarkar, A.K.,
 Wanchoo, K.N., Gupta,
 K.C. Das,
 Ayyangar, N.
 Rajagopala
Author: P. Gajendragadkar
Abstract

In the landmark case of Daryao & Orth v. State of UP & Others,1 the Supreme Court of India has
placed the doctrine of Res Judicata on a higher note considering the binding nature of judgement
pronounced by a court of competent authority which is a essential mandate of rule of Law. Justice
Gajendragadhekar rightly observed that “it is in interest of society at large that finality should be
attached to the binding judgement pronounced by the court of a competent jurisdiction. If this
guiding principle forms a basis of general rule of Res judicata in such a scenario it can’t be treated
irrelevant and inadmissible in questions related to Fundamental Rights petition filed under Article
32. The court in such scenario decided that if a petition is filed by the party to case under Article
226 shall be considered on merits and shall be dismissed, the decision such pronounced by the court
would be constituted as Res Judicata and shall be bind the parties unless it is further modified or
revered in appeal for the other appropriate proceedings permissible under the constitution of India.
Thus, it wouldn’t be permissible to the parties to ignore the judgement and to approach the Supreme
Court under Article 32 by filing of an original writ petition made on the same facts and for obtaining
the same and similar order.

In the above backdrop, the research analysis in the form FIRAC will analyze the different cases in
which doctrine of Res Judicata has been applied by the judiciary in reference to provide justice and
there implication on process of justice. The data shall be substantiated using review of existing
literature, judicial review and case laws. The analysis shall be qualitative in nature which involves
interpretation, reflection and judgements.

Keywords: Res judicata, Competent Authority, Constitution of India, Civil Procedure Code and
Article 32 and 226.

1
1961 AIR 1457
INTRODUCTION

The present case is a debatable in current scenario as to when the dismissal of a writ petition by the
High Court will be bar to the petition filed before the Supreme Court of India in relevance to the
principle of Res Judicata. The relevant laws followed in consonance to the same are Article 32 and
226 of Indian Constitution along with the relevant section of code of civil procedure, 1908 in the
light of section 11 and order XLVII, Rule 1. The court has referred to the main two precedents in this
case i.e. M.S.M. Sharma v. Shree Krishna Sinha2; and Raj Lakshmi Dasi v. Banamali Sen3.

It has been settled that section 11 of the code explaining the principle of Res Judicata doesn’t in any
terms apply to the writ petition, thus there are no good reasons to preclude decision in controversy
following the writ petition filed under article 32 and 226 operating as Res Judicata in subsequent
proceedings or proceeding where there is a same matter in dispute between the same parties
Litigating under the same title thus, to provide a limited effect to the principle of finality of matter
after the contest.

Facts

1. PARTIES TO THE CASE:

 Daryao & Others: - Petitioner in the present case. The petitioner and their ancestor had
been the tenant of respondent. In 1947, the petitioners had to leave the village due to
communal disturbance in the western district of Uttar Pradesh. Subsequently, when
petitioners returned in November 1947, they found that the respondents had taken
unlawful possession of the said land in their absence.
 State of UP: - Respondent in the present case. While after the communal riots after taking
over the possession of property respondent refused to deliver the possession.
2. CAUSE OF ACTION (PROCEDURAL HISTORY):
 Suit for Ejectment:- In June 1948, the petitioners filed a suit u/s 180 of the U.P. Tenancy
Act, 1939 to get the possession of the land and eject the respondents as the respondents
had refused to deliver the same. The Trial Court passed a decree in favor of the
petitioners.
 First appeal against the decision of Trial Court: - the above mentioned decree was
confirmed in the form of appeal which was instituted before the Additional commissioner
by respondent.
2
1960 AIR 1186
3
1953 AIR 33
  Second appeal before the Revenue Board:- The respondents made further appeal before
the Revenue Board where the board passed the decision in favor of the respondents and
petitioners suit was dismissed by virtue of the U.P. Zamindari Abolition and Land
reforms (Amendment) Act, 1953. The respondent 3 and 5 became entitled to the
possession of land.
 Petitioner’s Writ petition before the High Court of Allahabad Under Article 226:-
The petitioners aggrieved by the decision of Board of Revenue moved to High Court
seeking writ of certiorari in order to quash the said judgment under article 226 of Indian
Constitution. Before the said writ petition was actually filed, the Allahabad High Court
had already interpreted s.20 of the U.P. Land Reforms Act as amended in 1953. In
furtherance of the same the petitioners’ learned advocate did not press the petition before
High Court due to that the said petition was dismissed on March 29, 1955. In consonance
to the same section 20 was amended by s. 4 of 1954.
3. ACTION TAKEN BY THE PARTIES:
 Petitioner’s petition before the Supreme Court of India under Article 32:- on 14
March, 1956 petition was filed before the SC of India. By the time this present petition
was filed the limitation period for filing an appeal under Art. 136 had expired. Also, the
grounds of attack by the petitioners in their petition were exactly the same as raised
before the Allahabad High Court. Hence, the respondents had urged that the present
petition be dismissed as being barred by Res Judicata before the Supreme Court.


Issues
In the present petition filed before the SC of India complexity of application of doctrine of res
judicata to writs filed under Article 32 arose before the bench. The issue dealt by the court as
follows:-

1. Whether res judicata can be invoked where a writ petition under Article 32 is
being placed before the court?
This question of Res Judicata applicability was determined be the court in following sub-folds :-

i. Whether Art. 32 of the Indian Constitution is a fundamental right?

ii. Whether res judicata is merely a technical rule or a matter of public policy?
iii. Whether principle of res judicata would be applicable to a writ filed under Art. 32, even if
in the very first instance it was filed under Art. 226 of the Indian Constitution?
 Rules

INDIAN CONSTITUTION

 Article 32 in The Constitution Of India 1950

32. Remedies for enforcement of rights conferred by this Part

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the
rights conferred by this Part is guaranteed

(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in
the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may
be appropriate, for the enforcement of any of the rights conferred by this Part

(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ),
Parliament may by law empower any other court to exercise within the local limits of its
jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 )

(4) The right guaranteed by this article shall not be suspended except as otherwise provided for
by this Constitution

 Article 226 in The Constitution Of India 1949

226. Power of High Courts to issue certain writs

(1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout the
territories in relation to which it exercise jurisdiction, to issue to any person or authority,
including in appropriate cases, any Government, within those territories directions, orders or
writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and
certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for
any other purpose

(2) The power conferred by clause ( 1 ) to issue directions, orders or writs to any Government,
authority or person may also be exercised by any High Court exercising jurisdiction in relation to
the territories within which the cause of action, wholly or in part, arises for the exercise of such
power, notwithstanding that the seat of such Government or authority or the residence of such
person is not within those territories

(3) Where any party against whom an interim order, whether by way of injunction or stay or in
any other manner, is made on, or in any proceedings relating to, a petition under clause ( 1 ),
without

(a) furnishing to such party copies of such petition and all documents in support of the plea for
such interim order; and
(b) giving such party an opportunity of being heard, makes an application to the High Court for
the vacation of such order and furnishes a copy of such application to the party in whose favour
such order has been made or the counsel of such party, the High Court shall dispose of the
application within a period of two weeks from the date on which it is received or from the date
on which the copy of such application is so furnished, whichever is later, or where the High
Court is closed on the last day of that period, before the expiry of the next day afterwards on
which the High Court is open; and if the application is not so disposed of, the interim order shall,
on the expiry of that period, or, as the case may be, the expiry of the aid next day, stand vacated

(4) The power conferred on a High Court by this article shall not be in derogation of the power
conferred on the Supreme court by clause ( 2 ) of Article 32.

 Writ Of Habeas Corpus

"Habeas Corpus" is a Latin term which literally means "you may have the body." The writ is
issued to produce a person who has been detained , whether in prison or in private custody,
before a court and to release him if such detention is found illegal.

 Writ Of Certiorari
Literally, Certiorari means to be certified. The writ of certiorari can be issued by the Supreme
Court or any High Court for quashing the order already passed by an inferior court, tribunal or
quasi judicial authority.

There are several conditions necessary for the issue of writ of certiorari .

 There should be court, tribunal or an officer having legal authority to determine

the question with a duty to act judicially.
 Such a court, tribunal or officer must have passed an order acting without
jurisdiction or in excess of the judicial authority vested by law in such court,
tribunal or officer.
 The order could also be against the principles of natural justice or the order could
contain an error of judgment in appreciating the facts of the case.

CODE OF CIVIL PROCEDURE

 Section 11, Civil Procedure Code, 1908

No Court shall try any suit or issue in which the matter directly and substantially in issue has been
directly and substantially in issue in a former suit between the same parties, or between parties under
whom they or any of them claim, litigating under the same title, in a Court competent to try such
subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and
finally decided by such Court. .

Eplanation I- The expression “former suit’ shall denote a suit which has been decided pror to the suit
in question whether or not it was instituted prior thereto.
Explanation II.- For the purposes of this section, the competence of a Court shall be determined
irrespective of any provisions as to a right of appeal from the decision of such Court.
Explanation III.- The matter above referred to must in the former suit have been alleged by one party
and either denied or admitted, expressly or impliedly, by the other.
Explanation IV.- Any matter which might and ought to have been made ground of defence or attack
in such former suit shall be deemed to have been a matter directly and substantially in issue in such
suit
Explanation V.- Any relief claimed in the plaint, which is not expressly granted by the decree, shall,
for the purposes of this section, be deemed to have been refused.
Explanation VI- Where persons litigate bona fide in respect of public right or of a private right
claimed in common for themselves and others, all persons interested in such right shall, for the
purposes of this section, be deemed to claim under the persons so litigating.
Explanation VII. - The provisions of this section shall apply to a proceeding for the execution of a
decree and reference in this section to any suit, issue or former suit shall be construed as references,
respectively, to proceedings for the execution of the decree, question arising in such proceeding and
a former proceeding for the execution of that decree.
Explanation VIII. -An issue heard and finally decided by a Court of limited jurisdiction, competent to
decide such issue, shall operate as res judicata in as subsequent suit, notwithstanding that such Court
of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue
has been subsequently raised.

Essentials to the principle of Res Judicata:

 There should be a couple of suits, a formerly decided one and a further subsequent suit.
 The parties to the suit that is former and subsequent should be the same, including the ones
claiming title under any of the parties.
 The subject matter of the suit must be the same, directly or constructively.
 A final decision must have been taken in regard to the subject matter.
 The court which decided the matter should be of competent jurisdiction.
 Parties must have litigated under the same title.
Exceptions to the Principle of Res Judicata-

 Waiver Of Decree Of Res Judicata –The matter will be decided against the party, whose
has the duty to inform the court of the previous litigation and has subsequently failed to bring
it to the knowledge of the court.
 When the law changes-The rights brought about due to change of law is not a bar to the
principle of Res Judicata
 Competency of the Court to decide matter- Doctrine of Res Judicata will not apply to the
judgements given by courts, which did not have competent jurisdiction.
 Different cause of action- A different Cause of action is not bound by principle of Res
Judicata as that raises questions on new matters to be decided on.
  Interlocutuory order- Interlocutuory order is an interim order passed by the court to grant
immediate relief and is not final. It can be altered by the court at a later stage. Therefore,
principle of Res Judicata is not applicable to the same.
 Judgment received by fraud- if the court of competent jurisdiction feels that the previous
decision was a result of fraud committed by either of the parties, then principle of Res
Judicata will not apply.
 Special Leave petition is previously dismissed- if the SLP is decided without adjudication
then no Res Judicata will apply as the matter has not been heard.

ANALYSIS

Whether Art. 32 is a fundamental right?

Part III of the constitution of India deals with Article 32 wherein the Part III is considered as a
“heart and soul” of the constitution the party is. Part III specifically deals with the rights conferred
on the Indian citizens. On the other hand few rights are only applicable to citizens, some are
applicable to both citizens and foreigners alike (non-citizens).
o Articles 15,1 6, 19, 29,30 are applicable to only citizens.
o Articles 14, 20, 21, 22, 23, 24, 25,26,27,28 are applicable to both citizens and non – citizens.
It was held by the Supreme Court in many cases that a petition can’t be dismissed merely on the
ground that an alternative ground in the form of remedy is available to petitioner. “The right to
enforce a fundamental right conferred by the Constitution was itself a fundamental right
guaranteed by Art. 32 of the Constitution and the court could not refuse to entertain a petition
under that Article simply because the petitioner might have any other adequate, alternative, legal
remedy.”4

Thus, Article 32 of the Indian Constitution provides right to individuals to move to the Supreme
Court in case the right has been ‘unduly deprived’. The apex court has the wider authority to issue
directions such right is considered as ‘the protector and guarantor of Fundamental Rights’.
The wider and absolute discretionary power of the SC is based upon factors on the basis of nature of
writs5:-
1. Principle of locus standi: - Right to bring action or to be heard before the competent court.
2. Alternative relief: - remedies sought to the parties in various available alternative forms.
4
Rashid Ahmed v. Municipal Board, Kairana
5
Alankrita Singh article on “Article 32 under Constitution of India- Right to constitutional Remedy” available on
blog.ipleader.in.com
 3. Doctrine of Res Judicata: - a case which is already decided by a competent court and the
parties are litigating under the same title on same matter for the same adjudicated relief.
4. Question of fact: - a factual dispute or issues which needs to be resolved.
5. Doctrine of laches: - bars the recovery by the plaintiff because of the undue delay in filing of
the case.
Contention of The Petitioner Contentions of The Respondent
1. The petitioners contended that he cannot be 1. Argued that Article 32 does not provide a
barred from filling a petition under article absolute right to every citizen the right to
32 despite of the fact that there exists a make a petition rather it’s merely provides
petition before the high court under article the right to move the Court by appropriate
226 filed by the same parties. proceedings.
2. It’s argued that Article 32 in itself is a 2. It was submitted before the court that the
fundamental right and hence the parties’ appropriate proceeding in this case is filing
should not be deterred by a technical rule. of an application under article 136 (SLP) or
It was argued that “it would cause a great any other appropriate article. Hence the right
injustice if a stringent rule of res judicata conferred under the Article 32 is similar to
(technical Rule) will be applied on the FR.” that of Article 226.

Decision of the court

The court held that the right conferred on the citizens under Article 32 to prefer a petition before the
SC in itself is a fundamental right. Article 32(1) talk about the “appropriate proceedings” i.e.
proceedings which are “appropriate to the nature of the order. The direction or writ filed before the
court by the petitioner isn’t appropriate to the nature of the case” 6 The court has ruled in this
judgment that the present petition is barred by the rule of res judicata.

Analysis

The petition of petitioner was dismissed by the court and subsequently barred the petitioner from
invoking article 32 by reasoning that the writ petition in the High Court and the current writ petition
filed before the Supreme Court are directed against the same statute and the grounds raised by the
petitioner are also the same. Therefore it was held by the apex court that the decision of the High
Court pronounced by it on the merits of the petitioner's writ petition under Art. 226 is a bar to present
petition, under Art. 32.  The court held that “It is in the interest of the public at large that finality
should attach to the binding decisions pronounced by courts of competent jurisdiction, and it is
6
Diwan Bahadur Seth Gopal Das Mohla v. The Union of India, [1955] 1 S.C.R. 773
also in the public interest that individuals should not be vexed twice over with the same kind of
litigation on the basis of principal of Natural Justice of “Double Jeopardy” 7 also, held that the
general rule of Res Judicata cannot be treated as irrelevant or inadmissible, while dealing with FR
under Article 32 of Indian Constitution.

Whether res judicata is merely a technical rule or a matter of public policy?

The res judicata being a public policy or a technical rule would affect it’s applicability on writs filed
before the SC under Article 32 of Indian constitution on the matter of FR. The court explained the
aspect such as:-

IF THE MATTER INVOLVES A

QUESTION RELATED TO (NATURE OF
CASE)

Res Judicata Res Judicata

PUBLIC MERE
POLICY would apply TECHNICAL will not be
on RULE applicable on
such suits.
Arguments of the Parties to case:-

Contentions of the petitioner Contentions of the Respondent

Res judicata was addressed by Mr. Agarwal It was contended by the respondent that res
advocate of the petitioner as being a mere judicata is a matter of public policy as it protects
technical rule. It was contended that the said an individual’s right against multiple trials and
rule is similar to rule of estoppel and hence it also saves the court’s time.
cannot be pleaded against a petition seeking
enforcement of fundamental rights. Thus, Art. 32
itself is a fundamental right and the rule of res
judicata cant be applied.

Decision of the court

The court while ruling under s.11 (res judicata) of Code of Civil Procedure is technical in nature,
like the rule of conservative res judicata, the basis of the rule is in line of the public policy. It is
based upon following reasons:-

7
Daryao And Others vs The State Of U. P. And Others,1961 SC 1457 
  It is in the interest of the public that a finality is attached to a decision;
 It is in the interest of public that an individual is not vexed twice over with same litigation.
“The doctrine of res judicata is not a technical doctrine applicable only to records; it is a
fundamental doctrine of all courts that there must be an end of litigation”8

Origin of doctrine of Res Judicata on the basis of 3 Maxims:-

Thus, res judicata is a universal law prevailing in all the jurisprudence. It has observed so on the
basis of following reasons:-
1. interest republican ut sit finis litium:- It is in the interest of the State that there should be
an end to litigation-
2. nemo debet bis vexari pro eadem causa9:- The hardship on the individual that he should
be vexed twice for the same cause-
3. Re Judicata Pro Veritate Occipitur:- decision of the court should be ruled as true.

“The court hence observed that the rule of res judicata is different from the principle of estoppels
which rests on equitable principles as it has its roots in public policy. Hence, the court held that
the argument that res judicata is a mere technical rule and hence is irrelevant in the petitions
under Art. 32 are baseless.”

ANALYSIS
The court held that res judicata being a public policy seems appropriate after referring the case of
Lal Chand v. Radha Krishan10, in which the SC had observed that doctrine is conceived in the
interest of public as there should be an end to all litigation. It is to be noted that in M.
Nagabhushana v. State of Karnataka 11also the court noted that res judicata aims to achieve honest
and fair administration of justice and to prevent abuse of the process of law. This renders that res
judicata is clearly rooted in the concept of public policy and that it is not merely a technical rule.
Hence, in the backdrop of the court’s observation that it being a public policy would affect its
applicability to writs, the authors agree with the court’s approach of making s.11 applicable even to
writ jurisdiction under Art.32, even though it is a fundamental right guaranteed under Indian
Constitution.

8
Halsbury's Laws of England, 3rd, Ed., Vol. 15, para. 357, P. 185
9
Corpus juris, VOl. 34, P. 743.
10
(1977) 2 SCC 88.
11
(2011) 3 SCC 408
Whether principle of res judicata would be applicable to a writ brought under
Art. 32, even if in the first instance it was filed under Art. 226?
The court while dealing with this issue first analysed whether Art. 32 can be treated as appellate
jurisdiction of the Supreme Court? The court gave a negative answer and stated that an appeal is
only filed to correct errors, which is not the case with Art. 32 cases. Hence, as a geeral principle of
public policy, the principle of res judicata should be considered as an admissible argument in a
petition filed under Art. 32. The court further enumerated the cases in which such general principle
can be invoked:-

 Where the case is referred to a court of competent jurisdiction

 There has been a contest between the parties before the court
 A fair opportunity of being heard provided to both the parties, and
 The court has given a judgment.

The court then referred to Pandit M.S.M. Sharma v. Dr. Shree Krishna Sinha 12 held that the
question determined by the previous decision of this Court cannot be reopened in the present case
and must govern the rights and obligations of the parties which are substantially the same.”

Decision of the court

The question of applicability of res judicata to a petition filed under Art. 226 in the first instance,
the court referred to the case of Raj Lakshmi v. Banamali Sen13, where the court held that res
judcata may be made applicable even when the tribunal which decided the matter may not have
jurisdiction to try the subsequent suit and the subject-matter may not be the same. The court further,
the High Court while exercising its power under Art. 226 are substantially exercising the same
jurisdiction as has been provided to the Supreme Court under Art. 32 as the writs, orders or
directions which may be given under both the provisions are similar in scope.
The court therefore held that the argument that a petition filed under Art.32 cannot be
entertained by High Court under Art. 226 are farcical and hence the plea that the judgment of
the High Court cannot be treated as res judicata as it cannot entertain a petition under Art. 32
was rejected.
The court on the point of Diwan Bahadur Seth Gopal Das Mohla v. The Union of India, 14 the court in this case
went on to describe the writ cases in which res judicata will apply:-

12
[1961] 1 S.C.R. 96.
13
[1953] S.C.R. 154
14
[1955] 1 S.C.R. 773
 Decided on merit

Res judicata will apply

1. Suit dismissed due to

latches/alternate remedy
Dismissed As
Withdrawn Res Judicata won't apply
Writ Under 2. If the facts under Art.
Res judicata won't Article 226 226 are relevant under
apply Art. 32

Res Judicata will apply

Dismissed at the threshold
1. On merits

Res judicata will apply

2. Without a speaking
order

Res judicata won't apply

ANALYSIS
The court in the present case provided an extensive list of cases in which res judicata will apply and
in which it won’t. However, through further judicial intervention various other principles have been
added to the aforementioned principles15:-

1. Constructive res judicata doctrine will apply to Writ proceedings.

2. Rule of constructive res judicata won’t be applicable to writ of habeas corpus.16
3. Res judicata is also applicable different stages in the same proceeding.
4. If a petitioner withdraws a suit without the leave of the court to institute a further suit in
another court on the same subject-matter, the fresh petition won’t be maintainable.

15
Singh, Yogendra. “PRINCIPLE OF RES JUDICATA, AND WRIT PROCEEDINGS.” Journal of the Indian Law
Institute, vol. 16, no. 3, 1974, pp. 399–414. JSTOR, www.jstor.org/stable/43950378.
16
Re, Hastings (No. 2), (1958 3 All E.R. Q.B.D. 625.
CRITICISM OF THE JUDGEMENT

1. Non-applicability of res judicata on other writs except Habeas Corpus:- The automatic
application of Res Judicata would narrow “the scope of liberty of an individual”. The
decision of Daryao case doesn’t proposes a valid reason as to why doctrine of Res Judicata
should not be applied to writ of habeas corpus under Art. 32. The court is of the opinion that
petition under Art. 32 involves enforcement of FR i.e. right to liberty. Thus, under the similar
circumstances other rights provided under part III of constitution should also be protected.
2. The term fundamentally lawless order is not defined fully:- The decision of the court for
non applicability of Res Judicata on fundamentally lawless order. It is submitted that the
term is not defined by the court fully. Thus, the Daryao case had gone into wrong direction
for applicability of doctrine on the writs and other principles of jurisprudence. Hence
reconsideration is needed as the judicial construction of the case is not in conformity with the
intention of the constitution.
IMPLICATION OF THE JUDGEMENT

In the case of Metal corporation of India v. Union of Inida17, the Calcutta High court stated that
rejection of a writ petition by the Supreme court will not be considered as a Speaking order. The
judgmenet pronounced the the High court was in same line with that of the priniciples laid down in
Darayao’s case and stated that dismissal of the suit by the Honourable Supreme court in the outset ,
should be taken on the basis and reasoning that no fundamental right had been violated and that the
order considered that was no substance of dispute at all.

Further in the case of Gulabchand v. State of Gujarat18, the Supreme Court further held that even
Article 226 bars further jurisdiction of a court in any regular suit.It also stated that section 11 is not
exhaustive in nauture and Res Judicata rightly applies even to writ petition matters when parties,
subject matter and cause of action remain the same.

CONCLUSION AND SUGGESTIONS

In this case the Hon’ble Supreme Court has correctly decided for the respondents, stating that the
principle of Res Judicata rightly applies even to writ petition matters when parties, subject matter
and cause of action remain the same and the judgment given by the lower court, that is the Allahabad
High Court was upheld. The judgmenet given by the Hon’ble Supreme Court and the principles laid

17
AIR 1970 Cal. 15.
18
AIR 1965 Sc 1153
down are held to be a landmarkfor cases that followed with respect to Section 11 of the Civil
Procedure Code and Writ petitions under Article 32 and 226 of the Constitution of India.

The hon’ble court in the above case put the Doctrine of Res judicata on a higher and a more binding
character than other principles, considering the judgments pronounced by higher court as a part of
Rule of Law and is favourable for public at large to avoid multiple litigations.

Therefore to conclude, the following proposals can be tendered:

 Res Judicata will apply if a judgement is given under Article 32 when parties, subject matter
and cause of action remain the same, as the matter has already been adjudicated on.
 Res Judicata will apply if a judgement is given under Article 226 when parties, subject matter
and cause of action remain the same, as the matter has already been adjudicated on.
 The cases which consider Constitutional principles or rights, the principle laid down in the
Daryao case of constructive Res Judicata should be kept away from.
 The Hon’ble Supreme Court laid down principles, on ‘Merits of a case’, which should be a
guiding light for further pronouncements.
 One writ judgement must not bar the rights of the parties for further successive suit and the
principle laid down by the court, that of constructive Res Judicata should be avoided against
further successive regular suit.

BIBLIOGRAPHY