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Mool Raj Vs. Anjuman Imdad Bahmi Bafindgan and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ No. 590 of 1960
Judge
Reported inAIR1960P& H602
ActsPatiala Recovery of State Dues Act; Co-operative Societies Act, 1912; Constitution of India - Articles 32 and 226; Code of Civil Procedure (CPC), 1908 - Sections 11
AppellantMool Raj
RespondentAnjuman Imdad Bahmi Bafindgan and anr.
Cases ReferredRamji Lal v. Rex
Excerpt:
.....by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - this suit failed, and an appeal and a second appeal against that decision also failed. an appeal to the commissioner and a revision to the additional financial commissioner also failed. having failed in the civil courts and before the revenue authorities, the petitioner approached this court under art. the facts on which this petition was grounded..........that they should not be allowed to come again.'(7) in the present case, on the identical facts the writ was dismissed and i do not conceive how a second petition on the same facts is competent. really this will be an abuse of the process of the court. it is well known that power under art. 226 of the constitution are discretionary and will only be exercised in case of grave injustice and not to defeat and delay justice.(8) mr. shamair chand relies on a full bench decision of this court in ramji lal v. rex, (1948) 50 pun lr 225: (air 1949 ep 67). that decision relates to writs of habeas corpus. that decision has no analogy or application to successive writs like the writs of certiorari, mandamus or the like. rules as to writs of habeas corpus stand on totally different footing.(9) it may.....
Judgment:
ORDER

(1) The present petition under Art. 226 of the Constitution is directed against the recovery proceedings initiated by the Anjuman Imdad Bahmi Bafindgan, Kapurthala, hereinafter called the Society, against the petitioner Dr. Moolraj under the Patiala Recovery of State Dues Act (No. IV of 2002 Bk.) hereinafter called the Act.

(2) The facts disclose how sometime the process of Court can be abused to its utmost limit. In the year 1946, the petitioner raised loan from the Society in the sum of Rs. 5,000/-. Thereafter he applied to the Society that he wanted to leave for another province and his house be sold and the debt due from him be recovered from the sale proceeds of the house. On 23-9-1946, the Society gave an award under the Co-operative Societies Act, 1912. The execution was levied in the Civil Court on the basis of this award. This led to a suit by the petitioner for permanent injunction that the award be not executed. The suit was decreed ex parte and that decision has become final as no appeal against it was preferred.

(3) In the year 1951, the Registrar, Co-operative Societies, issued a certificate under the Act for recovery of Rs. 7,384/-, principal and interest. In pursuance of this certificate the property of the debtor was put to auction. This led to the second suit by the petitioner-debtor in the Court of Sub-Judge 1st Class, Kapurthala, challenging the order of the Registrar, Co-operative Societies, and his jurisdiction to proceed under the Act. This suit failed, and an appeal and a second appeal against that decision also failed. Thereafter, the petitioner raised objection before the Collector that the amount could not be recovered as State dues. The objection was dismissed by the Collector. An appeal to the Commissioner and a revision to the Additional Financial Commissioner also failed. Having failed in the Civil Courts and before the revenue authorities, the petitioner approached this Court under Art. 226 of the Constitution, in C. W. No. 90 of 1958, which was dismissed in limine by this Court. Thereafter he moved the Supreme Court under Art. 32 of the Constitution. The facts on which this petition was grounded are identical with the petition which failed in this Court.

An interim stay was granted by the Supreme Court, but later on when the petition was opposed by the opposite party, the stay was refused and the proceedings under the Act were allowed to go on. It is not known what fate the petition in the Supreme Court has met. The petition in the Supreme Court is C. W. No. 40 of 1958. The present petition was file don 28-4-1960, on identical grounds and identical facts. It may be stated that no new fact has come into existence after the date of the dismissal of the petition in limine by this Court or after the date of the petition filed under Art. 32 of the Constitution in the Supreme Court.

(4) To the present petition, the respondents have raised a preliminary objection and that is, that it is not competent, in view of the dismissal of an identical petition on the same facts. The contention is that to the proceedings under Art. 226 of the Constitution, the principles of res judicata apply.

(5) After hearing the learned counsel for the parties, I am of the view that the preliminary objection must prevail. It is now beyond question that the rule of res judicata is not confined to S. 11 of the Code of Civil Procedure. It is a rule of general application and is based on a sound principle. On the same facts no person can be twice harassed. So far as successive proceedings under Art. 226 of the Constitution on the same facts and the same cause of action are concerned, the rule of res judicata has been applied in Radhashyam v. Patna Municipality, AIR 1956 Pat 182. Also see in this connection, the decision of the Supreme Court in Godavari Parulekar v. State of Bombay AIR 1953 SC 52.

(6) So far the English Courts are concerned the decision in R. v. Bodmin Corporation (1892) 2 Q. B. 21, is in point, wherein it was observed as under:

'Such a writ is an extraordinary remedy, and persons seeking it may very reasonable be required not to apply for it unless they have sufficient cause for doing so. They must come prepared with full and sufficient material to support their application, and if those materials are incomplete, I think it is quite right that they should not be allowed to come again.'

(7) In the present case, on the identical facts the writ was dismissed and I do not conceive how a second petition on the same facts is competent. Really this will be an abuse of the process of the Court. It is well known that power under Art. 226 of the Constitution are discretionary and will only be exercised in case of grave injustice and not to defeat and delay justice.

(8) Mr. Shamair Chand relies on a Full Bench decision of this Court in Ramji Lal v. Rex, (1948) 50 Pun LR 225: (AIR 1949 EP 67). That decision relates to writs of habeas corpus. That decision has no analogy or application to successive writs like the writs of certiorari, mandamus or the like. Rules as to writs of habeas corpus stand on totally different footing.

(9) It may be pointed out that in the case of a writ of mandamus, the rule is rather strict. Where a first application for mandamus is refused on the ground of want of demand and refusal is incompetent. See in this connection, Halsbury's Laws of England, Hailsham Edition, Vol. 9 page 786, where the following observations occur:

'When an application for a prerogative writ has been made, argued, and refused on the ground of defects in the case as disclosed in the affidavits supporting the motion, it is not competent for the applicant to make a second application for the same writ on amended affidavits containing fresh materials.'

(10) For the reasons given above, this petition fails and is dismissed with costs.

(11) Petition dismissed.


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