Full Judgment
CR No.2859 o”
1. IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CR No.2859 of 2012 (O & M) Date of decision: July 03, 2013.
Harbans Singh ....Petitioner Versus United India Insurance Co.LTD.and others ....Respondents CORAM: HON'BLE Mr.JUSTICE PARAMJEET SINGH 1 Whether Reporters of the local papers may be allowed to see the judgment?.
2) To be referred to the Reporters or not?.
3) Whether the judgment should be reported in the Digest?.
Present: Mr.Surinder Sharma, Advocate, for the petitioner.
Mr.D.R.Bansal, Advocate, for the respondents.
PARAMJEET SINGH, J.
Instant petition has been filed under Article 227 of the Constitution of India challenging the order dated 22.12.2011 (Annexure P-6) passed by learned Civil Judge (Senior Division).Jalandhar vide which plaint of petitioner-plaintiff has been rejected on the application filed by the respondents/defendants under Order 7 Rule 11 (d) of CPC.
Brief facts for disposal of the present petition are that earlier, the petitioner had filed civil writ petition No.7108 of 2007 before this Court CR No.2859 o”
2. challenging the orders dated 14.06.2005 and 12.01.2007, which was dismissed on merit vide order dated 11.05.2007.
The petitioner-plaintiff challenged the orders of his removal from service by filing a civil suit on same grounds as taken in the civil writ petition which has been earlier decided on merit.
After putting their appearance in civil suit, the respondents-defendants filed an application under Order 7 Rule 11 (d) of CPC for rejection of plaint.
The learned Civil Judge (Sr.Divn.).Jalandhar after considering the contentions of learned counsel for the parties rejected the plaint of the petitioner-plaintiff.
I have heard learned counsel for the parties.
Learned counsel for the petitioner vehemently contended that the order passed in the writ petition was not on merit and the same was dismissed in limine , as such it will not operate as res judicata and plaint cannot be rejected as barred by res judicata.
In support of his contentions, the learned counsel has relied upon 'Smt.Pujari Bai versus Madan Gopal (1989) 3 SCC 433.Yogendra Narayan Chowdhury versus Union of India 1996 (2) S.C.T.155, Himanshu Dutta versus Md.Kala Mia 2007 (5) R.C.R.(Civil) 237, Paramjit Singh Sethi versus The Delhi Development Authority, New Delhi and others AIR 198.Delhi 22 and Ahmedabad Manufacturing and Calico Printing Co.LTD.versus The Workmen and another AIR 198.SC 960.
Having considered the contentions raised by the learned counsel for the parties and after perusing the record, I am of the considered opinion that there is no merit in the contentions advanced by the learned counsel for the petitioner-plaintiff.
Perusal of order dated 11.05.2007 passed by this Court reveals that the petitioner had challenged his removal from service on the CR No.2859 o”
3. ground that the order passed by the disciplinary authority was haRs.and disproportionate to the charges levelled against him.
He did not take any other ground before this Court to challenge the said order.
This Court dismissed the civil writ petition vide order dated 11.05.2007 by passing speaking order on merit.
A relevant portion of the said order is being re-produced as under: “Since the petitioner does not dispute the findings recorded by the Inquiry Officer, which were subsequently upheld by the appellate authority, as well as, in furtherance of the memorial submitted by the petitioner, it is not possible for us to accept that the charges levelled and proved against the petitioner, were of a nature which did not warrant the punishment of removal from service.”
The order dated 11.05.2007 (Annexure P-1) passed in CWP No.7108 of 2007 was also challenged in SLP and the same was dismissed vide order dated 31.08.2007 (Annexure P-2).The present suit has been filed by the petitioner-plaintiff challenging the orders of his removal from service on the ground that the same are unconstitutional, arbitrary, discriminatory, null and void and against the principles of natural justice.
Since the order dated 11.05.2007 was passed by this Court after considering the orders passed by the disciplinary authority as well as appellate authority and did not find any merit in the contention of petitioner, then the said order being on merit will operate as res judicata.
The Hon'ble Supreme Court in 'Union of India versus Nanak Singh, AIR 196.Supreme Court 1370 has held as under in paras 5 and 6: “5.
This Court in Gulabchand Chhotalal Parikh v.
State of Gujarat observed that the provisions of Section 11 of the Code of Civil Procedure are not exhaustive with CR No.2859 o”
4. respect to an earlier decision operating as res judicata between the same parties on the same matter in controveRs.in a subsequent regular suit, and on the general principle of res judicata, any previous decision on a matter in controversy, decided after full contest or after affording fair opportunity to the parties to prove their case by a Court competent to decide it, will operate as res judicata in a subsequent regular suit.
It is not necessary that the Court deciding the matter formerly be competent to decide the subsequent suit or that the former proceeding and the subsequent suit have the same subject-matter.
There is no good reason to preclude such decisions on matters in controveRs.in writ proceedings under Art.
226 or Art.
32 of the Constitution from operating as res judicata in subsequent regular suits on the same matters in controveRs.between the same parties and thus to give limited effect to the principle of the finality of decision after full contest.
The Court in Gulabchand’s case left open the question whether the principle of constructive res judicata may be invoked by a party to the subsequent suit on the ground that a matter which might or ought to have been raised in the earlier proceeding but was not so raised therein, must still be deemed to have been decided.”
6. If the order of the High Court in appeal from the order in the writ petition operated constructively as res judicata, it might have been necessary to consider the question which was left open by the Court in Gulabchand’s case.
But in our view the judgment in the previous case operates by express decision as res judicata.
It is true that in order that the previous adjudication between the parties may operate as res CR No.2859 o”
5. judicata, the question must have been heard and decided or that the parties must have an opportunity of raising their contentions therein.....”
A perusal of case law titled 'Paramjit Singh Sethi (supra) clearly indicates that subsequent suit/writ is maintainable on the same issue, if earlier suit/petition is dismissed without considering merit.
Similarly, it was held by the Hon'ble Supreme Court of India in Yogendra Narayan Chowdhury (supra) that dismissal of SLP in limine without touching the merits of the case will not operate as res judicata.
The proposition of law laid down in these cases is not in dispute, rather from the perusal of the same, it is clear that if the writ petition is not dismissed by passing speaking order either at the threshold or after contest only on the ground of laches or availability of alternative remedy, then another remedy open in law either by way of suit or any other proceedings obviously will not be barred on the principles of res judicata.
The same view was held by the Hon'ble Supreme Court of India in case 'Smt.
Pujari Bai(supra).The remaining case laws (supra) are distinguishable on the facts and circumstances of the present case.
In the present case, earlier writ petition was dismissed on merit.
In view of this, I do not find any merit in the contentions raised by the learned counsel for the petitioner.
The impugned order does not suffer from any infirmity, illegality or perversity or error of law.
Dismissed.
[ Paramjeet Singh ].July 03, 2013 Judge parveen kumar