A
B
c
COMMISSIONER OF INCOME TAX, BOMBAY
v.
T.P. KUMARAN
AUGUST 16, 1996
[K. RAMASWAMY AND G.B. PATTANAIK, JJ.]
Code of Civil Procedure, 1908 : Section 11.
E:xplanation IV-Order 2, Rule 2.
Constructive res judicat<r-lncome Tax Officer-Dismissaf-Suit
against-Suit decree and plaintiff reinstated in seivice--Writ for payment of
aTTears-High Court order for payment of all arrears-Order attaining
finality-Subsequently application claiming interest allowed by Tribunaf-Ap-
peal-He/d Tribunal committed gross en-or of law in directing payment of
D interest-Held claim was ban"ed by constructive res judicata-Even otherwise
as no claim was made in the suit the petitioner was prohibited to seek remedy
separately.
E
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 11399 of
1996.
From the Judgment and Order dated 16.8.94 of the Central Ad-
ministrative Tribunal, Ernakulam, in O.A. No .. 2026 of 1993.
R.R. Misra, R. Salish and S.N. Terdol for the Appellant.
F
E.M.S. Anam for the Respondent.
The following Order of the Court was delivered :
Leave granted.
G
We have heard learned counsel for the parties.
This appeal by special leave arises against an order of the Central
Administrative Tribunal, Ernakulam made on 16.8.1994 in OA No. 2026/93.
The admitted position is that while the respondent was working as Income-
tax Officer, he was dismissed from service. He laid a suit against the order
H of dismissal. The suit came to be decreed and he was consequently
732
C.l.T. v. T.P. KUMARAN
733
reinstated. Since the. arrears were not paid, he filed a writ petition in the A
High Court. The High Court by drder dated August 16, 1982 directed the
appellant to pay all the arrears. That order became final. Consequently,
arrears came be paid. Then the respondent filed an OA claiming interest
at 18% p.a. The Administrative Tribunal in the impugned order directed
the payment of interest. Thus, this appeal by special leave.
The Tribunal has committed a gross error of law in directing the
payment. The claim is barred by constructive res judicata under Section 11,
Explanation IV, CPC which envisages that any matter which might and
ought to have been made ground of defence or attack in a former suit, shall
B
be deemed to have been a matter directly and substantially in issue in a C
subsequent suit. Hence when the claim was made on earlier occasion, he
should have or might have sought and secured decree for interest. He did
not seek so and, therefore, it operates as re judicata. Even otherwise, when
he filed a suit and specifically did not claim the same, Order 2, Rule 2,'
CPC prohibits the petitioner to seek the remedy separately. In either event,
the OA is not sustainable.
D
The appeal is accordingly allowed. No costs.
T.N.A.
Appeal allowed.
Lex