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1983 DIGILAW 700 (ALL)

Piyare Others v. Deputy Director of Consolidation, Camp At Faizabad

1983-09-23

S.SAGHIR AHMAD

body1983
JUDGMENT S. Saghir Ahmad, J. - This is a petition under Article 226 of the Constitution. 2. Sri D.P. Dwivedi, learned counsel for the opposite party no. 5, has raised a preliminary objection that the writ petition is not maintainable. It has been pointed out by him that against the impugned orders dated 22.10.69 passed by the Assistant Settlement Officer, Consolidation and 10.6,70 passed by the Deputy Director of Consolidation, the petitioners had earlier filed Writ Petition No. 1217 of 1970 which was dismissed by this Court on 25.3.1975. The petitioners then filed Review Application No.48 of 1975 which was dismissed on 14.12.76. The petitioners have now filed the present writ petition against the same impugned orders which have already been upheld by this Court in the earlier writ petition referred to above. 3. Learned counsel for the petitioners has contended that there are certain new points which were not raised in the earlier writ petition and, therefore on those points he is entitled to file a second writ petition. In support of his contention he has relied upon the case of Gauri Shanker Jalan v. Official Liquidator (1965 ALJ 330) in which the Division Bench of this Court held that when a case can be dismissed on two grounds, its dismissal on one ground does not operate as res judicata in respect of the other ground. This was a case under the Indian Companies Act, and it was provided in the judgment that when the decision of the High Court in appeal under Rule 164 of the Companies (Court) Rule, 1969, did not involve a decision that the appellants' claim was barred by time, there was no question of that decision operating as res judicata in proceedings under Rule 176, where the only question was whether the claim was barred by time or not. This case is not applicable to the facts of the present case. 4. Learned counsel for the petitioners then cited the case of Mathura Prasad Sarjoo Jaiswal and others v. Dossibai N. B. Jeejeebhoy ( AIR 1971 SC 2355 ). He referred to the following observations in the judgment: A question relating to the jurisdiction of a Court cannot be deemed to have been finally determined by an erroneous decision of the Court. Learned counsel for the petitioners then cited the case of Mathura Prasad Sarjoo Jaiswal and others v. Dossibai N. B. Jeejeebhoy ( AIR 1971 SC 2355 ). He referred to the following observations in the judgment: A question relating to the jurisdiction of a Court cannot be deemed to have been finally determined by an erroneous decision of the Court. If by an erroneous interpretation of the statute the Court holds that it has not jurisdiction, the question would not, in our judgment, operate as res judicata. Similarly by an erroneous decision, if the Court assumes jurisdiction which it does not possess under the statute, the question cannot operate as res judicata between the same parties, whether the cause of action in the subsequent litigation is the same or otherwise. 5. The facts of the Supreme Court case are altogether different and the decision is not applicable to the present case. 6. Here, the claim of the petitioners was allowed by the Consolidation Officer but was negatived by the Assistant Settlement Officer, Consolidation and the Deputy Director of Consolidation, by their respective judgments dated 22.10.69 and iO.6.1970. These judgments, as mentioned above, had been challenged on several grounds in Writ Petition No. 1217 of 1970 which was dismissed on 25.3.75 with the observations that the impugned judgments do not suffer from any apparent error of law. This judgment was sought to be assailed by the petitioners in a review application in which certain new grounds were also sought to be raised. The review application was dismissed on 14.12.76. This order may be quoted below: This is an application for reviewing my order dated 20.3.1975 passed in Civil Misc. Writ Petition No. 1217 of 1970. The writ petition was decided by me after hearing the counsel for the parties at considerable length. Learned counsel for the applicants pressed before me grounds nos. 8, 9 and 10 of this application. These points were not pressed before me at the time of arguments in the writ petition nor do they figure in the grounds of the writ petition itself. Sri Acharya, on behalf of the applicants, fairly conceded that they were not pressed at the time of the original argument in the writ petition but he submits that these are material aspects of the case which merit consideration by this Court. Sri Acharya, on behalf of the applicants, fairly conceded that they were not pressed at the time of the original argument in the writ petition but he submits that these are material aspects of the case which merit consideration by this Court. The scope of a review application is strictly circumscribed by law and no new points can be allowed to be raised by means of a review application. There is, thus, no force in this application and it is accordingly dismissed. 7. The judgment and order dated 22.10.69 passed by the Assistant Settlement Officer, Consolidation and the judgment and order dated 10.6.70 passed by the Deputy Director of Consolidation, which had been upheld by this Court on merits in the earlier writ petition, have now been impugned in the present petition, though, as it is claimed by the petitioners, on new grounds. In my opinion, the law does not allow the petitioners to file a second writ petition against the same impugned orders which had already been upheld by this Court on merits in the earlier writ petition. 8. Learned counsel for the petitioners has contended that the rule of res judicata is a technical rule and the technicalities of law should not be allowed to override the interest of justice. The rule of res judicata may be technical but the basis on which the said rule rests is founded on consideration of public policy. It is in the interest of the public at large that a finality should attach to the binding decisions pronounced by the courts of competent jurisdiction and that individuals should not be vexed twice over with the same kind of litigation. The principles of constructive res judicata also apply to the writ proceedings. The omission to raise a point in an earlier petition, which could have been raised, would debar the litigant from raising that point in the subsequent petition. (See Denial Modi v. Sales Tax Officer and others AIR 1965 SC 1150 ); (T. Govindraja Mudaliar v. The State of Tamil Nadu and others, AIR 1973 SC 974 ). 9. The petition, in my opinion, is clearly not maintainable and is dismissed as such. The opposite parties shall be entitled to their costs. (Petition dismissed)