LexGULABCHAND CHHOTALAL PARIKH versus SIATE OF BOMBAY (NOW GUJARAT)
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GULABCllAND CBHOTALAL PARJKll
v.
SI'ATE OF BOMBAY (NOW GUJARAT)
December 14. 1964
547
8
(A. K. SAlutAR., K. SullBA RAO, RAGHUBAA DAYAL,
N. RAJAGOPALA AYYANGAA AND J. R. MUOHOLKAll, JJ.]
Practice and · Procedun-Dtcisltm on writ application under Art.
226--Suit /or same re/leJ-1/ '-!ed by res judicata.
1be appellant prayed for the issue of a writ of mandamus and a writ
of prohibition against the respondent-state in a writ application filed
C
io Ifie High Court, on the ground that bis liability as surety for some con·
~
stood cfucbarged on account of a particular action of the State.
1be High Court diS!Dissed the petition on merits after full contesL
He
thereupon filed a suit against the respondent and raised the same plea
that be was discharged from liability as surety on the same grounds. The
1rial court, the first appellate Court and the High Court held that the
suit was barred by ru judicata in view of the judgment of the High Court
D
on the writ petition. In appeal to the Supreme Court,
HELD (Per Sarkar, Raghubar Dayal,
Rajagopala Ayyangar and
Mudbolkar JJ.) :
On general principles of res ;Wlicata, the decision of
the High Court on a writ petition under Art. 226 of the Constitution, on
the merits, on a matter, after full contest, will operate as ,., judlcata in a
...._._,t regular suit between the same parties with respect to the
-
matter. [574 E-F]
E
The provisions of s. 111 Civil Procedure Code, 1908, are not ezhaus·
dw with nospec:t tO an earlier decision operating as ru judicata between
the llDle parties on the same matter in controversy in a subsequent regular
lllit and, on the general principle of r<• judlcata, any previous decision
on a matter in controversy decided after full contest or after affording
fair "l.'portunity to tho parties to prove their case by a court competent
to decide it, will operate u ru judicata in a subsequent regular suit. It is
not -.y that the court deciding the matter formerly be competent
F
to decide the subsequent suit or that the former 1,>roceeding and the subso-
qumt suit have the same subject matter. The nature of the former pro-
-iing is immaterial. There is, therefore, no good reason to preclude
anch clCcisions on matters In controversy in writ proceedings under Arts.
226 or 32 from operating 81 ru judicata in subsequent regular suits on
the l8llle matters in controversy, between the same parties, and thus to
aiYo limited dfect to the principle of finslity of decisions after full com-.
['73 11-E]
G
Cue law reviewed.
Per Sobba Rao, J. (dbmulng) : The decision given by the High Court
in the writ petition would not preclude the court, before which the suit
was filed, from deciding the amo quation on merits in the suit. [576 FJ
This view, while it does not mate s. 11 of the Code an unneceswy
proftsioo, doee not lead to any practical difficulties, for, the decision of
H
die Hijh Court on a question of law will be binding as an authority on
Subordiflll1e Courts and its decision on a question of fact will rarely be
dilfsed from by the said courts. [576 B-F]
Ome law CCllllidcml.
548
CIVIL APPELIATB hlmDcnoH: Civil Appeal N>_ 670 m A
1963.
Appeal by special )caw: from tbc jndgmma and dcm:e dmd
Man:b 31, 1958 of 1hc Bombay High Comt in Second Appeals
No. 1480 of 1957.
S. '[. Demi and I. N. SlrTOfJ, b' the !lppdlant
B
S. G. PlllWm'dhan and R.H. Dhebar, b' tbe rap•ideut ..
'lbti Judgment of Sarbr, Ragladm Da.Jal, ~
Ayyangar and Mndbolbr., H. w dditued by Rag1mlJar DaJnI J.
Subba Rao, J. ddDeml a dj
11iHg Opi11iom
Rad '
DaJlll, L
This appeal.. by special lr:avc. mn tllc
question whether a clrv:isjng ~ tllc High Comt llll nx:.rifs m a
certain Dlllltel' aftec aa1k:&f in a wDt pd)IMm undrL Ait. 226 of
the Constitution opcatt:s as ra ;w&r11a in a regullu: suit with
respect to the same matter berwrm 1hc S1111JC pmirs.
c
The facls k:adjgg to the ll{lllClll me tfJae.. The ll(lpCllw D
stood SURlly foc a nmnbcr of n•d• • t•s -.ID &ad tUr:n oonfrw:IS
in 1947 for .fdliDg timbec mes ml tQllOfing limbet in warious
fomsts in the eutwbilc Slate of Baria. The u•d•am 1l'ae tab::a
as a i:esult of auctions which took pbce Ulllllll: 1bl: "Owliti1ts of
Auction Sale of Fonds in the Baria Slate in tbc S:mmrt JQr 2002" E
com:spondiDg to 194>46 A.D .. dlough in the plaint tbc:e llODdi-
tious wen: 1efencd to as Forest Aw:tinn Ruk:s. On April 1.
1948, the appellant pu" 11m an applM ati., to the Dam. Sll!fe
stating tberlExcerpt shown. Read the full judgment & AI analysis in Lexace.