Daryao And Others vs The State Of U. P. And Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 27 March 1961

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

The Supreme Court of India rendered its judgment on 27 March 1961 in the matter titled Daryao And Others versus The State Of U. P. And Others. The bench that heard the case comprised Justice P.B. Gajendragadkar, Justice A.K. Sarkar, Justice K.N. Wanchoo, Justice K.C. Das Gupta and Justice N. Rajagopala Ayyangar.

The decision was reported in the 1961 All India Reporter at page 1457 and subsequently cited as 1962 S.C.R. (1) 574. The judgment has been referenced in numerous later reports, including but not limited to RF 1962 SC 1621, R 1963 SC 996, R 1964 SC 782, D 1964 SC 1013, RF 1965 SC 1150, R 1965 SC 1153, RF 1967 SC 1, RF 1967 SC 1335, E 1968 SC 985, E 1968 SC 1196, R 1970 SC 898, RF 1974 SC 532, R 1975 SC 202, RF 1977 SC 1680, R 1978 SC 1283, F 1979 SC 1328, RF 1981 SC 728, RF 1981 SC 960, RF 1981 SC 2198, E&D 1987 SC 88, F 1987 SC 522, R 1988 SC 1531, R 1990 SC 53, R 1990 SC 1607, RF 1991 SC 1309, and others.

The Court held that when a High Court dismisses a writ petition under Article 226 of the Constitution after hearing the matter on its merits on the ground that no fundamental right has been proved, or that any alleged contravention is constitutionally justified, a subsequent petition filed before the Supreme Court under Article 32 on the same factual matrix and seeking the same reliefs by the same party is barred by the doctrine of res judicata. The judgment emphasized that the principle of res judicata applies even though the two provisions, Article 226 and Article 32, confer jurisdiction on different courts.

The Court rejected the contention that the High Court’s judgment could not be treated as res judicata merely because Article 226 does not entertain a petition under Article 32. It clarified that the right of a citizen to invoke Article 32 for appropriate relief when a fundamental right is infringed is itself a fundamental right, not a discretionary power that can be limited merely because the High Court has exercised its jurisdiction under Article 226.

In arriving at its conclusion, the Court referred to earlier decisions, namely Basheshar Noth v. Commissioner of Income‑Tax, Delhi and Rajasthan, [1959] Suppl. 1 S.C.R. 528; Laxmanappa Hanumantappa Jamkhandi v. The Union of India, [1955] 1 S.C.R. 769; and Diwan Bahadur Seth Gopal Das Mohla v. The Union of India, [1955] 1 S.C.R. 773. Those cases were cited to underscore that the entitlement to approach the Supreme Court under Article 32 is a constitutional guarantee and may be curtailed only in the manner prescribed by the Constitution itself.

The Court further explained that the phrase “appropriate proceedings” in Article 32(1), when properly construed, must be understood to refer to proceedings suitable to the nature of the order, direction or writ that the petitioner seeks from the Supreme Court, and not to be limited by the category of the case. Thus, the Court affirmed that the doctrine of res judicata, grounded in public policy considerations of finality of competent judgments and avoidance of repetitive litigation, applies equally to petitions under Article 32.

The petitioner asks this Court for relief that is not appropriate to the nature of the case. The Court referred to Romesh Thappar v. State of Madras, [1950] S.C.R. 594, in support of its analysis. It observed that the general principle of res judicata rests on public‑policy considerations, namely that (i) decisions of courts of competent jurisdiction should be final and (ii) no person should be forced to face the same litigation twice. The Court held that this principle is not a mere technical rule that can be ignored in petitions filed under Article 32 of the Constitution, as discussed in the Duchess of Kingston’s case, 2 Smith Lead. Cas. 13th E‑d. 644. The binding nature of judgments of competent courts forms an essential part of the rule of law emphasized by the Constitution. Consequently, a judgment of the High Court rendered under Article 226 after a full hearing on the merits must bind the parties until it is set aside on appeal or by other appropriate constitutional proceedings, and such a judgment cannot be evaded by a petition under Article 32. The Court relied on Pandit M. S. M. Sharma v. Dr. Shree Krishna Sinha, [1961] 1 S.C.R. 96, and Raj Lakshmi Dasi v. Banamali Sen, [1953] 1 S.C.R. 154, as well as Janardan Reddy v. State of Hyderabad, [1951] S.C.R. 344; Syed Qasion Rezvi v. State of Hyderabad, [1953] S.C.R. 589; and Bhagubhai Dullabhabhai Bhandari v. District Magistrate, Thana, [1956] S.C.R. 533. It rejected the contention that because remedies under Articles 226 and 32 are alternate, the use of one precludes the other, finding Mussammat Gulab Koer v. Badshah Bahadur, (1909) 13 1197, inapplicable. The Court then set out its conclusions: (1) when a petition under Article 226 is heard on the merits and dismissed by the High Court, the decision is binding on the parties unless it is modified or reversed on appeal or by other appropriate constitutional proceedings; (2) when a petition under Article 226 is dismissed not on the merits but due to the plaintiff’s laches or because an alternative remedy exists, that dismissal does not bar a later petition under Article 32, except where the factual findings of the High Court remain relevant under Article 32; (3) when a writ petition is dismissed in limine and an order is issued, whether the dismissal operates as a bar depends on the nature of that order; and (4) if a petition is dismissed in limine without a speaking order, or is withdrawn, res judicata does not apply. The judgment then listed the original jurisdiction as writ petitions Nos. 66 and 67 of 1956, 8 of 1960, 77 of 1957, 15 of 1957 and 5 of 1958, all filed under Article 32 for enforcement of fundamental rights, with Naunit Lal appearing for the petitioner in writ petitions Nos. 66 and 67 of 1956.

Counsel for the petitioner in Writ Petitions Nos. 66 and 67 of 1956 was Naunit Lal. Counsel for respondent No. 1 in those petitions was C. P. Lal. Counsel for respondents Nos. 3a and 4 in Writ Petitions Nos. 66 and 67 of 1956 were Bhawani Lal and P. C. Agarwal. Counsel for the petitioner in Writ Petition No. 8 of 1960 was C. B. Agarwala together with K. P. Gupta. Counsel for the respondent in Writ Petition No. 8 of 1960 were Veda Vayasa and C. P. Lal. Counsel for the petitioner in Writ Petition No. 77 of 1957 was Pritam Singh Safeer. The Advocate‑General of Punjab, S. M. Sikri, appeared for the State, while N. S. Bindra and D. Gupta represented respondent No. 1 in Writ Petition No. 77 of 1957. Govind Saran Singh appeared for respondent No. 2 in that petition. Counsel for the petitioner in Writ Petition No. 15 of 1957 were A. N. Sinha and Raghunath. The Solicitor‑General for India, C. K. Daphtary, with N. S. Bindra and R. H. Dhebar, appeared for the respondent in Writ Petition No. 15 of 1957. B. R. L. Iyengar represented the petitioner in Writ Petition No. 5 of 1958. The Solicitor‑General for India, C. K. Daphtary, together with R. Gandarpathy Iyer and R. H. Dhebar, appeared for the respondent in Writ Petition No. 5 of 1958. The judgment was delivered on 27 March 1961 by Justice Gajendragadkar.

These six writ petitions filed under Article 32 of the Constitution were placed before the Court for final disposal as a group because, although they involve different parties and are factually unrelated, each raises the same legal issue. All respondents raised a preliminary objection questioning the maintainability of the petitions, contending that each petitioner had previously approached the High Court for a similar writ under Article 226 and that the High Court had dismissed those petitions. The respondents argued that such dismissal should operate as a bar of res judicata, preventing a similar petition from being entertained by this Court on the same or similar facts and for the same relief. The Court noted that the question of whether a dismissal under Article 226 creates a res judicata bar for a subsequent petition under Article 32 has been mentioned in some earlier decisions, but it has not been fully examined or definitively decided. Accordingly, the Court identified this as the preliminary question to be resolved, and decided that the resolution of this issue in Writ Petition No. 66 of 1956 would govern the outcome of the remaining petitions. Petition No. 66 of 1956 alleged that for the preceding fifty years the petitioners and their ancestors had been tenants of the land described in Annexure A attached to the petition, and that respondents 3 to 5 claimed ownership of that land.

The petitioners claimed that they and their ancestors had been tenants of the land described in Annexure A of the petition, while respondents 3, 4 and 5 were asserted to be the proprietors of that land. Communal disturbances in the Western District of Uttar Pradesh forced the petitioners to abandon their village in July 1947; they returned in November 1947 to discover that, during their temporary absence, respondents 3‑5 had taken unlawful possession of the land. Because the respondents refused to surrender possession, the petitioners instituted ejectment proceedings under section 180 of the Uttar Pradesh Tenancy Act, 1939, in June 1948. The trial court ruled in favor of the petitioners and issued a decree granting them possession. Respondents 3‑5 appealed the decree, and the appeal was affirmed by the learned Additional Commissioner, after which the petitioners secured possession of the land through the court order. Dissatisfied, respondents 3‑5 filed a second appeal before the Board of Revenue under section 267 of the Uttar Pradesh Tenancy Act, 1939. On 29 March 1954 the Board allowed the respondents’ appeal and dismissed the petitioners’ suit concerning the land described in Annexure A, while rejecting the respondents’ appeal with respect to other lands. The Board based its decision on the Uttar Pradesh Zamindary Abolition and Land Reforms (Amendment) Act XVI of 1953, which it held gave respondents 3‑5 the right to possess the land.

Following the Board’s order, the petitioners approached the Allahabad High Court under article 226 of the Constitution, seeking a writ of certiorari to set aside the judgment. Before the petition was filed, a Full Bench of the High Court had already interpreted section 20 of the Uttar Pradesh Land Reforms Act as amended by Act XVI of 1953, a decision that was plainly adverse to the petitioners’ position. Consequently, the counsel for the petitioners had no alternative but to refrain from pursuing the petition further, and the High Court dismissed the petition on 29 March 1955. Subsequently, section 20 was amended again by section 4 of Act XX of 1954. In this context, the petitioners filed the present petition invoking article 32 of the Constitution on 14 March 1956. At the time of filing, the limitation period for an appeal under article 136 against the High Court’s dismissal had already elapsed. Moreover, the petitioners sought to raise the same grounds of attack against the Board’s decision that they had previously raised before the High Court, leading the respondents to contend that the present petition was barred by the doctrine of res judicata.

In the proceedings, counsel for the petitioners, Mr. Agarwala, advanced the contention that the doctrine of res judicata, which he described as merely a technical rule comparable to the rule of estoppel, could not be raised against a petition that sought to enforce the fundamental rights guaranteed by the Constitution. He maintained that the right conferred by Article 32(1) to move the Supreme Court for the enforcement of fundamental rights was itself a fundamental right, and that it would be highly inappropriate to diminish that right by subjecting it to the strict application of the technical rule of res judicata. Opposing this view, the learned Advocate‑General of Punjab, who represented the respondents, argued that Article 32(1) did not grant every citizen an unrestricted right to file a petition under that article; rather, it merely conferred the right to approach the Court through appropriate proceedings. He suggested that in a case such as the present one, the appropriate proceedings would consist of an application for special leave under Article 136 or an appeal under the relevant constitutional provision. The Advocate‑General also asserted that the right to move the Court under Article 32(1) did not impose an obligation on the Court to grant relief, pointing out that, similar to the power under Article 226, the discretion to grant leave under Article 32 was discretionary. To support the proposition that the Court’s power to grant or refuse relief was discretionary, reliance was placed on observations made in two reported decisions of the Supreme Court. In Laxmanappa Hanumantappa Jamkhandi v. Union of India & Another, the Court held that because Article 265 provides a special rule that no tax could be levied or collected except by authority of law, clause 1 of Article 31 dealt with deprivation of property other than by tax, and because the right under Article 265 was not a fundamental right situated in Part III, it could not be enforced under Article 32. In effect, the Court declared the petition filed under Article 32 in that case as non‑maintainable, while Chief Justice Mahajan, speaking for the Court, added that even in the peculiar circumstances that had arisen, it would not be just and proper to direct the issuance of any discretionary writs by this Court. The Chief Justice further noted that when this position was presented to Mr. Sen, he fairly conceded that it was not possible for him to contest that stance. Similar observations were later expressed by the same Chief Justice in Dewan Bahadur Seth Gopal Das Mohta v. Union of India & Another.

It was observed that the remarks made in the two earlier cases were obiter dicta, and, with due respect, they could not be treated as a definitive ruling on the proposition that the power to grant an appropriate writ under article 32 is a matter of discretion, such that even when a petitioner demonstrates a breach of his fundamental rights, the Court could refuse to issue a writ in his favour. Moreover, the later decision of this Court in Basheshar Nath v. The Commissioner of Income‑tax, Delhi and Rajasthan illustrated that where a petitioner establishes an illegal infringement of his fundamental rights, he may be entitled to obtain an appropriate relief, and a defence of waiver could not be raised against that claim. Although the issue of res judicata was not addressed in that case, the overall tenor of the judgments, despite a slight difference in approach, underscored the paramount importance of the fundamental rights guaranteed by the Constitution. The effect of those decisions appeared to be that citizens are ordinarily entitled to appropriate relief under article 32 once it is shown that their fundamental rights have been illegally or unconstitutionally violated. Consequently, the Court was not persuaded by the argument that the question of applying the rule of res judicata to a petition under article 32 should be decided on the basis that, like article 226, article 32 merely confers a discretionary power on the Court to grant an appropriate relief. The contention that article 32 does not give a citizen the right to approach this Court by an original petition, but only permits him to move the Court by “appropriate proceedings” suited to the nature of the case, was regarded as untenable. It was further submitted that when a petitioner has approached the High Court by a writ petition under article 226, his recourse under article 32(1) is limited to filing an application for special leave under article 136, and that this is the meaning of the phrase “appropriate proceedings” in article 32(1). In the Court’s opinion, a fair construction of article 32(1) shows that the expression “appropriate proceedings” refers to the type of proceeding that is suitable given the specific order, direction, or writ that the petitioner seeks from this Court. The suitability of the proceeding depends on the particular writ or order claimed, and in that sense the Constitution confers on the citizen the right to move this Court by proceedings appropriate to his grievance. Accordingly, the Court proceeded to examine the question of res judicata on the basis that a fundamental right has been guaranteed to the citizen to bring an original petition to this Court whenever his grievance concerns an illegal contravention of that right.

It was observed that the Constitution guaranteed every citizen the right to approach this Court by means of an original petition whenever the citizen alleged that a fundamental right had been unlawfully violated. The Court affirmed that the protection of fundamental rights under article 32(1) constituted a vital safeguard for individuals, and that this guarantee placed upon the Court the solemn responsibility of defending those rights. The fundamental rights were described not merely as personal protections but as matters of high public policy, reflecting the democratic ethos of the Constitution, which prized individual liberty and the preservation of such rights. Accordingly, the Court indicated that it possessed both the privilege and the duty to uphold these rights and would not restrict or diminish them except in the manner expressly provided by the Constitution.

The judgment noted that, in the early case of Romesh Thappar v. State of Madras, the Court rejected a preliminary objection that a petitioner should first seek relief from the High Court under article 226 before filing a petition under article 32. The Court quoted its own earlier observation that, as the protector and guarantor of fundamental rights, it could not refuse to entertain applications seeking protection against infringements of those rights. From this, the Court concluded that the very right of a citizen to file a petition under article 32 and to obtain an appropriate writ against unconstitutional infringement was itself a fundamental right. Consequently, the Court stressed that while considering any objection based on the rule of res judicata, this fundamental nature must be kept in mind.

The discussion then turned to whether the rule of res judicata was merely a technical rule or whether it rested on a broader public‑policy foundation. It was explained that if the rule embodied a principle of public policy integral to the rule of law, the argument that res judicata could not be invoked in matters concerning fundamental rights would lose considerable force. The Court referenced section 11 of the Code of Civil Procedure, acknowledging that certain aspects of res judicata, such as constructive res judicata, might be technical, but that the rule’s underlying basis lay in considerations of public policy. It was argued that it served the public interest to give finality to decisions rendered by courts of competent jurisdiction and to prevent individuals from being subjected to repeated litigation over the same issue. Accordingly, the Court held that these public‑policy considerations could not be disregarded even when fundamental‑right petitions under article 32 were involved.

In this case, the Court observed that the two principles underlying the general rule of res judicata could not be regarded as irrelevant or inadmissible even when the matter concerned fundamental rights under Article 32. The Court explained that when one examined the essential elements of res judicata, it was necessary to refer back to the judgment of Sir William de Grey, who later became Lord Walsingham, in the celebrated Duchess of Kingston’s case (1). Sir William de Grey had stated that, from the many situations in which judgments were offered as evidence in civil suits, two general propositions could be drawn. The first proposition was that a judgment rendered by a court of concurrent jurisdiction, directly on the issue, operated as a plea, a bar, or conclusive evidence between the same parties, concerning the same matter that was directly in dispute in another court. The second proposition was that a judgment rendered by a court of exclusive jurisdiction, also directly on the issue, was likewise conclusive on the same matter between the same parties when that matter arose incidentally in another court for a different purpose. The Court then cited Halsbury, which observed that the doctrine of res judicata was not merely a technical rule limited to records; instead, it was a fundamental principle applicable to all courts and required that litigation come to an end (2). Halsbury further explained that the doctrine applied equally in every court, irrespective of which court had originally heard the proceeding, provided that the earlier court was a court of competent jurisdiction, and regardless of the form of the proceeding, so long as it concerned the same cause (p. 187, paragraph 362). The Court also referred to Corpus Juris, which described res judicata as a universal rule that pervaded every well‑regulated legal system and rested on two foundations embodied in common‑law maxims. The first foundation was the public‑policy interest of the State in having litigation terminate (the Latin maxim finis litium); the second foundation was the protection of the individual from being vexed twice for the same cause (the Latin maxim nemo debet bis vexari pro eadem causa) (1). The Court noted that, unlike technical estoppel, which relied on equitable principles, res judicata derived its authority from maxims traced to Roman law (2). Consequently, the Court rejected the contention that res judicata was a mere technical rule and therefore inapplicable to petitions under Article 32. The Court added that the issue could also be approached from another perspective: a judgment issued by a court of competent jurisdiction bound the parties unless it was set aside, reversed, or altered by appeal, revision, or any other procedure provided by law. Accordingly, a judgment pronounced by the High Court in a writ…

When a party files a petition that rejects a request for a writ on the basis that the petitioner either lacks a fundamental right, fails to demonstrate a violation of that right, or that any alleged violation is justified by the Constitution, the resulting judgment must remain binding on the parties unless it is challenged by using the constitutional procedure that is prescribed for such attacks. The binding nature of judgments issued by courts having proper jurisdiction constitutes an essential element of the rule of law, and the rule of law in turn forms the foundation of the administration of justice, a principle to which the Constitution gives great importance. As noted in Halsbury’s Laws of England, “subject to appeal and to being amended or set aside a judgment is conclusive as between the parties and their privies, and is conclusive evidence against all the world of its existence, date and legal consequences.” A similar principle appears in Corpus Juris Secundum, which states that the doctrine of estoppel by judgment does not depend on any superior authority of the court that rendered the judgment, and that a judgment of one court bars an action between the same parties for the same cause in the same court or in another court, irrespective of whether the latter court has concurrent or other jurisdiction. This rule, however, is limited by the requirement that the earlier judgment must have been rendered by a court or tribunal of competent jurisdiction. The doctrine further requires that there must have been a judicial determination of the contested rights resulting in a final decision.

The Court explained that an original petition for a writ under Article 32 cannot serve as a substitute for an appeal against an order passed by a High Court in a writ petition filed under Article 226. The original jurisdiction of the Supreme Court under Article 32 must not be confused with, nor employed as, the appellate jurisdiction that is exclusively entrusted to the Court for correcting errors in High Court decisions made in writ proceedings under Article 226. Consequently, public‑policy considerations provide no justification for treating the rule of res judicata as inadmissible or irrelevant when dealing with petitions under Article 32. The rule may be invoked only when a genuine dispute between the parties has been referred to a court of competent jurisdiction, the parties have contested the matter before that court, each party has been given a fair opportunity to present its case, and the court has finally pronounced a judgment or decision. Such a decision, rendered by a court of competent jurisdiction, remains binding on the parties unless it is altered or reversed by following the constitutional procedure prescribed for modifying judgments.

It was held that a decision may be altered or set aside only by following a procedure prescribed in the Constitution. Accordingly, the submission that the general rule of res judicata should not be applied could not be accepted. The Court had previously examined the operation of the rule of res judicata in a petition under Article 32 in the case of Pandit M. S. M. Sharma v. Dr. Shree Krishna Sinha (3). In that matter the petitioner filed a petition under Article 32 seeking a writ against the Chairman and the members of the Committee of Privileges of the State Legislative Assembly; that petition was dismissed. Thereafter the petitioner instituted another petition that sought essentially the same relief and relied on the same allegations. The question that arose for the Court was whether the second petition could be entertained. The Court answered in the negative, holding that the second petition was barred by the doctrine of res judicata. It was noted that the earlier decision on which the plea of res judicata was based was itself a decision of this Court in a petition filed under Article 32, and therefore the factual background differed from a High Court judgment. Nevertheless, that earlier judgment was considered helpful in resolving the present issue. In upholding the application of res judicata, the Court observed that a question finally decided by a prior judgment of this Court could not be reopened in the present case and must continue to govern the rights and obligations of the parties where those rights and obligations are substantially the same. Supporting this view, Chief Justice Sinha, speaking for the Court, referred to the earlier decision in Raj Lakshmi Dasi v. Banamali Sen (1) and stated that the principle of res judicata applies to a question that has been fully contested and decided, even if the first tribunal lacked jurisdiction to try a later suit and even if the subject‑matter of the dispute is not identical in the two proceedings. The Court also noted that the tribunal which had decided the earlier proceedings in Raj Lakshmi Dasi (1) possessed exclusive jurisdiction. Consequently, the decision established that the rule of res judicata may be invoked against a petition filed under Article 32. The Court further referred to earlier decisions in which the same problem had been raised but not definitively answered. For example, in Janathan Reddy v. The State of Hyderabad (2) it appeared that a petition for special leave had been filed against a High Court judgment, that petition was rejected, and thereafter petitions under Article 32 were pursued.

In the matters under consideration, the petitions were indeed entertained by the courts, although each petition was ultimately dismissed on its merits. In doing so, Justice Fazl Ali, who delivered the judgment of the Court, observed that “it may, however, be observed that in this case we have not considered it necessary to decide whether an application under Art. 32 is maintainable after a similar application under Art. 226 is dismissed by the High Court, and we reserve our opinion on that question.” Similar observations were made by Justice Mukherjea, as then serving, in the case of Syed Qasim Razvi v. The State of Hyderabad (1). By contrast, in Bhagubhai Dullabhabhai Bhandari v. The District Magistrate, Thana (2) the High Court’s decision was treated as binding on the parties, with the Court noting, by reference to those proceedings, that “but that is a closed chapter so far as the Courts including this Court also are concerned inasmuch as the petitioner's conviction stands confirmed as a result of the refusal of this Court to grant him special leave to appeal from the judgment of the Bombay High Court.” In other words, these observations suggest that the prevailing view was that an order of conviction and sentence issued by the High Court would bind the convicted person and could not be challenged thereafter in a proceeding under Art. 32 when it appeared that this Court had refused to grant the convicted person special leave to appeal against that conviction. The next issue to consider is whether the application of the doctrine of res judicata changes because the decision relied upon is not one of this Court but a decision of a High Court exercising jurisdiction under Art. 226. It is argued that one of the essential requirements of section 11 of the Code of Civil Procedure is that the court which tried the first suit or proceeding should be competent (1) [1953] S.C.R. 589‑ (2) [1956] S.C.R. 533 to try the second suit or proceeding, and since the High Court cannot entertain an application under Art. 32, its decision cannot be treated as res judicata for the purpose of such a petition. There is some doubt as to whether the technical requirement prescribed by section 11 concerning the competence of the first court to try the subsequent suit forms an essential part of the general rule of res judicata; however, assuming that it does, the substance of the test is satisfied because the jurisdiction of the High Court in dealing with a writ petition filed under Art. 226 is substantially the same as the jurisdiction of this Court in entertaining an application under Art. 32. The scope of the writs, orders, or directions that the High Court may issue in appropriate cases under Art. 226 is concurrent with the scope of similar writs, orders, or directions that may be issued by this Court.

The Court observed that the cause of action for the two applications was identical because each asserted the existence of a fundamental right and alleged its illegal violation. Moreover, the relief sought in both petitions was of the same character, namely the issuance of a writ or order to enforce the claimed right. Article 226 grants the High Court authority to entertain a suitable writ petition, while Article 32 authorises a petitioner to approach this Court for a similar writ with the same purpose. Consequently, the submission that a petition filed under Article 32 cannot be entertained by a High Court exercising power under Article 226 was found to be without merit. Accordingly, the plea that the High Court’s judgment could not be treated as res judicata on the ground that it lacked jurisdiction to hear an Article 32 petition was rejected. However, the Court added that while exercising its power under Article 226 the High Court may refuse to grant a writ or order if it finds the applicant guilty of laches, treating the issuance of a high prerogative writ as a discretionary matter. In contrast, the right conferred upon a citizen to invoke this Court under Article 32(1) is itself a fundamental right, and this Court is ordinarily obliged to grant an appropriate writ or order when the petitioner demonstrates an illegal or unconstitutional breach of that right. The Court noted that even when a petition is filed under Article 32 after a considerable delay, it may be necessary to consider whether rights of third parties that have arisen in the interim could be affected, and the effect of laches or acquiescence on the part of the petitioner may also be examined. Nevertheless, when a petitioner establishes a case for the issuance of an appropriate writ or order, he is ordinarily entitled to obtain such relief under Article 32, which creates a distinction between the right to approach the High Court under Article 226 and the right to approach this Court under Article 32. This distinction implies that if the High Court declines to exercise its discretion because of laches or because an effective alternative remedy is available, its decision generally cannot be invoked as a bar of res judicata. Conversely, when the High Court has examined the matter on its merits and dismissed the writ petition on the ground that no fundamental right was proved, or that any alleged breach was either unestablished or constitutionally justified, there is no reason why that decision should not operate as a bar to a subsequent petition filed under Article 32 on the same facts.

In considering whether a later petition filed by the same party on identical facts and for the same relief under article 32 could be barred, the Court examined the argument that English law permits successive habeas‑corpus applications and that the dismissal of one such petition does not prevent a subsequent one. The Court held that no such analogy exists between habeas‑corpus petitions and petitions filed under article 226 or article 32. Historically, habeas‑corpus is treated as a distinct category of writ, but even in England the principle that a second petition may be filed after a first has been dismissed has been rejected. In the English case Re Hastings (No. 2) (1) (1958) 3 All E.R. Q.B.D. 625, it was observed that an applicant who had once been heard by a Divisional Court of the Queen’s Bench Division could not be heard a second time by another Divisional Court of the same Division, because the decision of a Divisional Court of that Division is equivalent to the decision of all the judges of the Division, just as the decision of one of the old common‑law courts sitting in bench represented the decision of the entire court. Lord Parker, C. J., delivering the judgment, examined the historical origins of the writ, the dicta of various judges on successive writ petitions, and concluded that “the authorities cannot be said to support the principle that except in vacation an applicant could go from judge to judge as opposed to going from court to court” (page 633). Consequently, it is now settled in England that an applicant may not move from one Divisional Court of the Queen’s Bench Division to another after a prior hearing. The same principle was later applied in Re Hastings (No. 3) (1) to a habeas‑corpus petition filed in a Divisional Court of the Chancery Division. Moreover, English law characterises an order passed on a habeas‑corpus petition as not a judgment, placing such petitions in a class of their own. For these reasons, the Court found that the English analogy of multiple habeas‑corpus applications does not aid the petitioners in resisting the operation of res judicata on petitions filed under article 32. Nonetheless, the Court expressly refrained from expressing any view on whether repeated habeas‑corpus applications would be permissible under the Constitution of India, noting that the question lay outside the scope of the present proceedings. The Court then turned to the remaining argument, which contended that the remedies available to the petitioners under article 226 of the High Court and article 32 of this Court were alternate, not exclusive, and therefore the use of one remedy could not preclude the use of the other.

The petitioners argued that the remedies available to them – namely moving the High Court under Article 226 and moving this Court under Article 32 – constitute alternate remedies. They relied upon the decision reported in [1959] 1 A.R.E.R. Ch.D. 698, contending that because the two remedies are not mutually exclusive but are cumulative, the use of one does not bar the use of the other. In their view, a party who has filed a petition under Article 226 cannot be precluded from later invoking the jurisdiction of this Court under Article 32 on the ground of res judicata. To support this contention they quoted the Calcutta High Court’s judgment in Mussammat Gulab Koer v. Badshah Bahadur (1). In that case a party who had unsuccessfully sought review of a consent order on the ground of fraud subsequently instituted a suit for a similar relief. The High Court rejected the opponent’s plea of res judicata, holding that although the two remedies co‑existed, they were not inconsistent, and therefore a party who had first resorted to one remedy could not be barred from later taking the other. The judgment further observed that, in the particular circumstances, an application for review was an inappropriate remedy and that the only effective remedy for the aggrieved party was the suit. While addressing the issue of res judicata, the Court examined the special features and conditions attached to a review application, the provisions concerning the finality of orders passed in review proceedings, and the limited right of appeal against such orders. The Court concluded that the two remedies could not be regarded as parallel and equally efficacious, and consequently, no question of election of remedies arose in those cases.

The present Court, however, does not accept that the Mussammat Gulab Koer decision establishes a general rule that even when alternate remedies exist, a party who first resorts to one remedy and whose dispute is finally decided by a court of competent jurisdiction cannot be barred by the decision of that court if the same matter is later raised before another forum. The crucial consideration, the Court explained, is the nature of the decision rendered by the competent court and its legal effect. Accordingly, when a writ petition filed by a party is dismissed on its merits, the judgment pronounced by the High Court becomes binding on the parties and cannot be circumvented or avoided by subsequently invoking Article 32 of the Constitution. Consequently, the Court is not persuaded that the argument of alternative remedies is well founded. Having examined the preliminary objection raised by the respondents, the Court holds that a writ petition filed under Article 226, if decided on the merits as a contested matter, binds the parties unless it is subsequently modified, reversed on appeal, or otherwise altered by a permissible constitutional proceeding. The parties therefore cannot ignore such a judgment and file an original petition under Article 32 on the same facts seeking identical or similar relief.

The Court observed that when a writ petition filed under Article 226 is decided on the merits and the petition is dismissed as a contested matter, the decision that is pronounced continues to bind the parties. That binding effect remains in force unless the decision is modified or set aside by an appeal or by any other proceeding that the Constitution permits. Consequently, a party cannot disregard such a judgment and file an original petition under Article 32 on the same facts seeking the same or similar relief. If, however, the High Court dismisses a petition under Article 226 not because of the merits but on the ground of laches on the part of the applicant, or on the ground that the applicant had an alternative remedy available, the dismissal does not create a bar to a later petition under Article 32. A later petition may proceed unless the factual findings of the High Court that led to the dismissal are themselves material to the issues that may arise under Article 32. In cases where a petition is dismissed in limine and an order is issued, the effect of that dismissal depends on the nature of the order. When the order is a decision on the merits, it operates as a bar under the principle of res judicata. When the order merely records that the dismissal resulted from laches or the existence of an alternative remedy, it does not constitute a bar, except in the limited circumstances already identified. If a petition is dismissed in limine without any speaking order, such a dismissal cannot be treated as creating a res judicata bar. Although a summary dismissal without a speaking order may suggest that the Court found the petition to be devoid of substance, the absence of an articulated reasoning makes it difficult to determine the factors that influenced the Court, and therefore it is unsafe to treat that dismissal as one on the merits that would bar a subsequent petition under Article 32. Likewise, when a petition is dismissed as withdrawn, it does not bar a later petition under Article 32 because no substantive decision on the merits has been rendered.

The Court clarified that the statements above are limited solely to the question of res judicata that has been raised as a preliminary issue in the writ petitions before it, and they do not extend to any other matter. Having laid down these principles, the Court indicated that it would now turn to consider the six petitions currently before it. Regarding Petition No. 66 of 1956, the Court noted that the petition filed in the High Court raised the same allegations and sought the same relief as the present petition. The subsequent analysis would therefore be based on the principles just articulated.

The petitioners had approached the High Court seeking a writ of certiorari to set aside the decision of the Revenue Board that was adverse to them. When the arguments were heard before the High Court, the counsel for the petitioners, observing the earlier decisions of that Court, chose not to press the petition further. Consequently, the legal questions raised in the petition were rejected on their substantive merits. Because the writ petition was therefore dismissed on the merits, the dismissal created a substantive bar under Article 32, preventing the present petition from being entertained. The companion petition, numbered 67 of 1956, faced exactly the same circumstances and was likewise dismissed on the merits. As a result, both of these petitions failed and were dismissed without any order concerning costs.

In contrast, the situation in Writ Petition No. 8 of 1960 differed significantly. The earlier writ filed by the same petitioner, identified as No. 68 of 1952, had been withdrawn by his counsel, leading the High Court to dismiss that petition expressly noting that the merits had not been examined and consequently ordering that no costs be awarded. Because the withdrawal and dismissal on February 3, 1955, occurred without a substantive consideration of the merits, that order could not be invoked to claim res judicata against the present petition. A co‑lessee of the petitioner had also filed a similar writ, No. 299 of 1958. The High Court, after making some observations, concluded that a writ was not the appropriate mechanism to resolve old title disputes and directed the petitioner to obtain a declaration of title from an appropriate civil or revenue court. The dismissal of that writ on March 17, 1958, likewise did not create a bar to the current petition. Accordingly, the preliminary objection raised against this writ petition was rejected, and the petition was ordered to be listed for hearing before a Constitution Bench.

Petition No. 77 of 1957 presented a further issue. The petitioner claimed in paragraph 11 of his petition that he had earlier approached the Punjab High Court with a writ under Articles 226 and 227, which had been dismissed in limine on July 14, 1957. The statement did not reveal whether a detailed speaking order accompanied that dismissal. The petitioner also filed an application for review of that order under Order 47, rule 1 read with Section 151 of the Code, which was likewise heard and dismissed in limine on March 1, 1957, without any indication of a speaking order on the review application. Because of the lack of clear material regarding the existence of substantive orders on either dismissal, the Court could not address the merits of the preliminary objection at that stage.

In the present case the Court found that it could not examine the substance of the preliminary objection because the necessary material had not been produced. Accordingly, the Court directed that the petitioner must file the two dismissal orders issued by the Punjab High Court. The Court explained that once those orders are placed before the Court, the matter may be scheduled for hearing before the Constitution Bench. At that stage, the Court will consider whether the doctrine of res judicata applies, taking into account the reasoning set out in the present group of decisions.

With reference to Petition No. 15 of 1957, the Court noted that the initial record contained only a brief statement that the writ petition filed by the petitioner in the Punjab High Court had been dismissed. Subsequently, the actual dismissal order was produced, but the order did not contain any reasons for the dismissal. The Court held that because the order was silent on the grounds for dismissal, it could not give rise to a bar of res judicata. Consequently, the Court ordered that the petition be placed on the calendar for a full hearing on its merits.

In Writ Petition No. 5 of 1958, the factual background was clear. The petitioner had approached the Bombay High Court seeking a writ to challenge an order of the Collector concerning a specific parcel of land. The High Court examined the petitioner’s contentions in the context of the Collector’s rejoinder and, on the whole, rejected the petitioner’s case. The High Court held that the authority granted to the State Government by section 5(3) of the Bombay Service Inam (Useful to the Community) Abolition Act, 1953 was neither arbitrary nor unreasonable in the circumstances, and that the petitioner’s land fell within the scope of the statutory provisions. Counsel for the petitioner attempted to overcome this result by reformulating the arguments and cited grounds 8 and 10 of his petition. The Court was satisfied that merely changing the form of attack on the impugned statute did not alter the essential legal position, because both the earlier High Court petition and the present writ petition were directed against the same statute and raised substantially the same grounds. Accordingly, the Court concluded that the decision of the Bombay High Court on the merits of the earlier writ under Article 226 constituted a bar to the present petition under Article 32.

For these reasons, the Court dismissed the writ petition. No order as to costs was made, and the petition was formally closed.