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Abdul Salam Vs. State of Jammu and Kashmir and ors. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtJammu and Kashmir High Court
Decided On
Case NumberSecond Appeal No. 97 of 1973
Judge
Reported inAIR1981J& K21
ActsCode of Civil Procedure (CPC) , 1908 - Section 11; ;Constitution of India - Articles 141 and 226
AppellantAbdul Salam
RespondentState of Jammu and Kashmir and ors.
Appellant Advocate T.S. Thakur, Adv.
Respondent Advocate R.P. Bakhshi, Adv.
DispositionAppeal dismissed
Cases ReferredIn State of Madhya Pradesh v. Mulamchand
Excerpt:
- .....by the supreme court in certain other matters.2. the learned single judge found that in the earlier writ petition, filed by the appellant against the respondent, the question whether he was entitled to a hearing before the amount was certified to be due from him was specifically pleaded and decided against him.3. on behalf of the state it was argued before the learned single julge that the decision in the earlier writ petition would operate as res judicata in the subsequent suit and that the appeal was liable to be dismissed on that ground. counsel for the appellant met the objection by urging that since the decision in the earlier writ petition ran contrary to the principles subsequently laid down by the supreme court, holding that even an administrative order involving civil.....
Judgment:

Anand, J.

1. Brief facts may first be noticed. The appellant was acting as a contractor for carriage of food grains by an order of the Director. Food and Supplies, Jammu. A complaint was made to the effect that food grains had been delivered short of consignment. The Deputy Commissioner, Food and Supplies, Jammu, thereupon enquired into the matter and certified that an amount of Rs. 90699/- was due from the appellant on account of the shortage of food grains delivered by him, while acting as the carriage contractor. This amount was sought to be recovered from the appellant as arrears of land revenue. A writ of demand was issued to the appellant calling upon him to make the payment of Rs. 90699/-. The appellant filed a writ petition questioning the recovery principally on the ground that no hearing had been granted to him before the amount was certified as due and recoverable from him as arrears of land revenue. The writ petition was decided against the appellant on 30-9-1969 and the judgment is reported as 1970 Kash LJ 176. The appellant subsequently filed a suit for injunction seeking to restrain the State from making recovery of the said amount That suit failed in the trial court and the first appeal too was dismissed by the appellate court. The appellant then came up in a second appeal to this Court,

When the case came up for arguments before a learned single Judge of this Court (Hon. Mufti J. as his Lordship then was), it was argued that the order of recovery was vitiated by the fact that no hearing had been granted to the appellant before the amount was certified as due from him. It was argued that even an administrative order involving civil consequences must, according to the settled principles of law, be made after notice to the person likely to be affected by the order and after affording him a reasonable opportunity to be heard in the matter and in that view the correctness of the view expressed by the Division Bench in Abdul Samad Pandit v. State reported in AIR 1969 J & K 52, to the effect that no hearing was required to be given to the concerned (person) before an amount was certified to be due, as arrears of land revenue, was doubted before the learned single Judge and it was argued that the said judgment ran contrary to the law subsequently declared by the Supreme Court in certain other matters.

2. The learned single Judge found that in the earlier writ petition, filed by the appellant against the respondent, the question whether he was entitled to a hearing before the amount was certified to be due from him was specifically pleaded and decided against him.

3. On behalf of the State it was argued before the learned single Julge that the decision in the earlier writ petition would operate as res judicata in the subsequent suit and that the appeal was liable to be dismissed on that ground. Counsel for the appellant met the objection by urging that since the decision in the earlier writ petition ran contrary to the principles subsequently laid down by the Supreme Court, holding that even an administrative order involving civil consequences must be made after notice to the person affected by it and after affording him a reasonable opportunity to be heard in the matter, the decision in the writ petition was no decision in the eye of law and as such that decision could not operate as res judicata. The learned Single Judge thereupon formulated the following questions of law :

(1) Whether a person is entitled to hearing before an amount is certified as due from him and recoverable as arrears of land revenue under any law for the time being in force?

(2) Whether a judgment inter partes given by a competent court in a previous suit or writ petition will operate as res judicata in a subsequent suit or writ petition between the same parties where the decision in the earlier suit or writ petition was founded on a view contrary to that expressed by the Supreme Court in a different case?

and in view of the importance of the aforesaid questions, desired that the case be put up before a Full Bench for an authoritative pronouncement. That is how this appeal has been put up before us for disposal.

4. I would first take up for consideration the second question formulated by the learned single Judge, because if that question is decided in the affirmative, the appeal would have to be dismissed as barred by res judicata, irrespective of the answer to the first question.

5. The facts, as already noticed, are not in dispute. It is an admitted case of the parties that in the earlier writ petition filed by the appellant he had raised the precise question that before the amount was certified as due from him, he had a right to be heard in the matter and that an order made without affording him that opportunity stood vitiated. The plea of the appellant was negatived. In the subsequent suit, filed by the appellant to restrain the State from making recovery of the said amount, the precise case of the appellant again was that the order of recovery was vitiated on the ground that no hearing had been granted to him before the amount was certified as due from him. Thus, it is apparent that the matter directly and substantially in issue in the suit had been directly and substantially in issue in the earlier writ petition, which was heard and decided by this Court.

6. That a decision in the writ petition operates as res judicata in a subsequent civil suit inter partes, if the cause of action is the same, is now well settled by the Supreme Court in AIR 1965 SC 1153 and is not questioned by learned counsel for the parties. The argument of Mr. T. S. Thakur, learned counsel for the appellant, however, is that the decision in the earlier writ petition cannot operate as res judicata in the subsequent civil suit because the proposition of law on which it was founded has since been considered erroneous by the Supreme Court (Refer AIR 1970 SC 150 and AIR 1978 SC 597). It is urged that since the law declared by the Supreme Court must always be presumed to be the law of the land, the earlier decision in the writ petition which was founded on erroneous view of law could not operate as res judicata.

7. Whether an earlier erroneous judgment can operate as res judicata or not was considered by the Supreme Court in Mohan Lal Goenka v. Benoy Kishna Mukherjee AIR 1953 SC 65 and their Lordships opined that even an erroneous decision on a question of law operates as a res judicata between the parties to it because correctness or otherwise of a judicial decision has no bearing upon the question whether or not the decision operates as res judicata.

8. Again, in Perumal Nadar v. Ponnu Swami Nadar AIR 1971 SC 2352 their Lordships declared the law on the point as follows :

'It is true that in determining the application of the rule of res judicata the court is not concerned with the correctness or otherwise of the earlier judgment. The matter in issue, if it is one purely of fact, decided in the earlier proceedings by a competent court must in a subsequent litigation between the same parties be regarded as finally decided and cannot be reopened. A mixed question of law and fact determined in the earlier proceedings between the same parties may not, for the same reason, be questioned in a subsequent proceeding between the same parties. But where the decision is on a ques-tion of law i. e. the interpretation of a statute, it will be res judicata in a subsequent proceeding between the same parties where the cause of action is the same for the expression 'the matter in issue' in Section 11 Code of Civil Procedure, means the right litigated between the parties, i. e. the facts on which the right is claimed or denied and the law applicable to the determination of that issue.'

9. In State of Madhya Pradesh v. Mulamchand AIR 1973 Madh Pra 293 where the precise question came up for consideration it was laid down as follows :

'If a decision on question of law applicable to the given facts has attained finality it will operate as res judicata even if the question was interpreted in ignorance of a binding precedent or if in a subsequent binding precedent the law has been interpreted otherwise. Therefore the subsequent declaration of the Supreme Court in a different proceeding (on the same cause of action) as to requisite compliance with and mandatory nature of Article 299(1) does not affect the operation of the earlier decision of the L. P. A. as res judicata in a subsequent suit on the same cause of action.'

10. From a review of the aforesaid judgment it stands established that in any case in whcih it is found that the matter directly and substantially in issue had been directly and substantially in issue in a former suit or writ petition and has been heard and finally decided by a competent Court principles of res judicata cannot be ignored. Even an erroneous judgment is nonetheless a binding judgment inter partes, so long as it is not reviewed or reversed by a higher court. Once a final judgment has been obtained, the same matter cannot be canvassed anew in another action. This is the core of the rule, the court is not concerned with the correctness or otherwise of the earlier judgment.

The matter in issue, if it is purely one of fact decided in the earlier proceeding by a competent court must in a subsequent litigation between the same parties be regarded as finally decided and cannot be reopened, A mixed question of law and fact, for the same reasons, cannot be considered anew in any subsequent proceedings. There would be no difference where the decision is on a question of law either, if the conditions for the application of Section 11 C. P. C. are satisfied, except in cases where the question decided in the previous cause is a question of law and relates to the jurisdiction of the court or the lack of it or the law has been subsequently changed by the legislature. Doctrine of res judicata and general principle emanating therefrom must be resorted to secure and freeze the issue once debated and finally decided and the principle of res judicata cannot be ignored merely on the plea that the earlier judgment was wrong or erroneous.

11. The argument of Mr. Thakur that by virtue of the later judgments of the Supreme Court in AIR 1970 SC 150 and AIR 1978 SC 597, the earlier judgment in the writ petition, which had declared the law differently, has been rendered no decision in the eye of law which has to be ignored and cannot operate as res judicata in my opinion is not sound, for the correctness or otherwise of the earlier judgment is irrelevant for the determination whether it would operate as res judicata or not. The basis for the above argument is Article 141 of the Constitution of India, which Mr. Thakur seeks to interpret in the manner that after the law is declared by the Supreme Court, any contrary view expressed on the point by any other court is not only over-ridden but that the judgment itself is wiped off for all intent and purposes. Mr. Thakur urges that every decision of the Supreme Court, being the law of the land, would be presumed to wipe off the earlier judgments laying the law to the contrary and take away whatever its effect has been. It is further submitted that the declaration of law by the Supreme Court is an 'alteration' of law and as such the earlier judgment in the writ petition which, it is argued, had laid the law to the contrary, could not operate as res judicata.

12. Undoubtedly Article 141 of the Constitution of India enacts that the law declared by the Supreme Court shall be binding on all courts within the territory of India. But the plain implication of the article is that when the Supreme Court expresses its view on a particular point of law, that view would be binding on all courts in India, irrespective of any contrary view expressed by any other court earlier and after the declaration by the Supreme Court, the view expressed to the contrary would no longer be treated as good law. It, however, does not mean that the effect of the decision, which had taken a contrary view and had become final between them stands automatically wiped off. The effect of a judgment, inter partes, can only be wiped off by getting that particular judgment reversed in an appeal or review. To hold otherwise would offend against the principle of finality of judgments. Moreover, Mr. Thakur is not correct in assuming that the declaration of law by the Supreme Court amounts to an 'alteration' in law so as to exclude the application of the rule of res judicata.

Article 141 of the Constitution has a limited purpose and does not confer any legislative functions on the Supreme Court. The Supreme Court only interprets law and neither enacts nor amends the law as laid down by the legislature. Thus, the exception to application of the rule of res judicata that if there is 'alteration' of the law since the earlier judgment the rule would not apply, would not be attracted because the interpretation given by the Supreme Court cannot be equated with enactment of new or altered law by the legislature. It is, therefore, immaterial for the application of the principles of res judicata as to whether the Supreme Court subsequently in a different case expresses a view contrary to a decision inter partes in an earlier suit or writ petition. Indeed, the declaration by the Supreme Court would imply that the law has always what the Supreme Court interprets it to mean but this cannot be extended to take away the rights which have become final between the parties in an earlier decision which took the contrary view. The rights which have become final as a result of a judgment delivered by a competent court cannot be washed away by a subsequent interpretation in a different cause. The correctness or otherwise of the earlier decision is wholly irrelevant where the conditions for the application of the rule of res judicata are satisfied in the latter case.

13. Therefore, I am of the opinion, that a judgment inter partes of a competent court in a previous writ petition would operate as res judicata in a subsequent suit between the same parties, where the issues directly involved in the two proceedings are the same, irrespective of the fact whether or not the decision in the earlier writ petition was founded on a view contrary to the one subsequently expressed by the Supreme Court in a different case as is canvassed by Mr. Tha-kur. I would accordingly, answer the second question in the affirmative and hold that the subsequent suit filed by the appellant was barred by the principles of res judicata. The judgment under appeal has been correctly decided and calls for no interference. This appeal must accordingly fail.

14. In view of the answer to question No. 2, I leave question No. 1 open and unanswered.

15. Parties shall, however, bear their own costs.

Mufti Baha-ud-Din Farooqi, Ag. C.J.

16. I agree.

I.K. Kotwal, J.

17. I also agree.


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