case presentation notes and summary, Cheat Sheet of Law

Download case presentation notes and summary and more Cheat Sheet Law in PDF only on Docsity! ISSUE 2: whether it makes any difference to the application of RULE OF RES JUDICATA that the decision on which the plea of res judicata is raised is a decision of the High Court exercising its jurisdiction under Art. 226. NOT OF SUPREME COURT.  So, the main contention before the supreme court of India raised by the petitioner was basically that according to section 11 of the civil procedure code the high court cannot entertain an application under article 32 and its decision cannot be treated as res judicata.  The supreme court however while dealing with this issue stated that It is doubtful if the technical requirement prescribed by  s. 11  as to the Competence of the first Court to try the subsequent suit is an essential part of the general rule of res judicata however, the court emphasized that if it is assumed and the said test is satisfied because the jurisdiction of the High Court in dealing with a writ petition filed under Art,. 226 is substantially the same as the jurisdiction of this Court in entertaining an application under Art. 32.   Furthermore, the court highlighted The scope of the writs, orders or directions that the High Court can issue in appropriate cases under Art. 226 is concurrent with the scope of similar writs, orders or directions which may be issued by this Court under Art. 32.  Therefore, the supreme court held that the argument raised by the petitioner that a petition under Art. 32 cannot be entertained by a High Court under Art. 226 is without any substance so the plea that the judgment of the High Court cannot be treated as res judicata on the ground that it cannot be entertained as a petition under Art. 32 was rejected.  Moreover, the court mentioned that in some cases wherein if -the High, Court has refused to exercise its discretion on the ground of laches or on the ground that the party has an efficacious alternative remedy available to them then of course the decision of the High Court cannot generally be pleaded in support of the bar of res judicata. if, however, the matter has been considered on the merits and the High Court has dismissed the petition for a writ on the ground that no fundamental right is proved, or its breach is either not established or is shown to be constitutionally justified Then the decision should be treated as a bar against the competence of a subsequent petition filed by the same party on the same facts and for the same reliefs under Art. 32. ISSUE 3: whether the remedies available to the petitioners to move the High Court under Art. 226 and SUPREME Court under Art. 32 are alternate remedies and so the adoption of one remedy cannot bar the adoption of the other.  The court stressed on the fact that These remedies are not exclusive but are cumulative and so no bar of res judicata can be pleaded when a party who has filed a petition under Art. 226 seeks to invoke the jurisdiction of this Court under Art. 32.  In support of this contention reliance has been placed on the decision of the Calcutta High Court in Mussammat Gulab Koer v. Badshah Bahadur (1). In that case a party who had unsuccessfully sought for the review of a consent order on the ground of fraud brought a suit for a similar relief and was met by a plea of res judicata.  This plea was rejected by the Court on the ground that the two remedies though co- existing were not inconsistent so that when a party aggrieved has had recourse first to one remedy it cannot be precluded from subsequently taking recourse to the other.  In fact the judgment shows that the Court took the view that an application for review was in the circumstances ail inappropriate remedy and that the only remedy available to the party was that of a suit.  In dealing with the question of res judicata the Court examined the special features and conditions attaching to the application for review, the provisions with regard to the finality of the orders passed in such review proceedings and the limited nature of the right to appeal provided against such orders.  In the result the Court held that the two remedies cannot be regarded as parallel and equally efficacious and so no question of election of remedies arose in those cases. The supreme court stated that this decision can be read as laying down a general proposition of law that even in regard to alternate remedies if a party takes recourse to one remedy and a contest arising therefrom is tried by a court of competent jurisdiction and all points of controversy are settled the intervention of the decision of the court would make no difference at all.  The court stated that In such a case the point to consider always would be what is the nature of the decision pronounced by a Court of competent jurisdiction and what is its effect. Thus considered there can be no doubt that if a writ petition filed by a party has been dismissed on the merits by the High Court the judgment thus pronounced is binding