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Shri Pravat Kumar Kar Vs. State of Orissa and ors. - Court Judgment

SooperKanoon Citation

Subject

Civil

Court

Orissa High Court

Decided On

Judge

Reported in

2008(II)OLR864

Appellant

Shri Pravat Kumar Kar

Respondent

State of Orissa and ors.

Disposition

Petition dismissed

Cases Referred

Forward Construction Co. and Ors. v. Prabhat Mandal

Excerpt:


.....appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a..........notice was not published on two consecutive days in a vernacular language. in absence of such averments, we cannot presume that the provisions of rule 38 of ommc rules, 2004 has not been complied with.as such we do not find any reason to set aside the settlement of the sand sairat in favour of the opp.party no. 3.the writ petition is accordingly disposed of.2. a preliminary objection has been raised by shri pitambar acharya, learned counsel appearing for the opposite party regarding the maintainability of the writ petition contending that it is barred by constructive res judicata as envisaged in explanation-iv to section 11 of the code of civil procedure. in support of his contention, he has placed heavy reliance upon the judgment of the hon'ble supreme court in forward construction co. and ors. v. prabhat mandal, andheri and ors. air 1986 sc 391 wherein the apex court at paragraph 19 and 20 has held as under:the second question for consideration is whether the present writ petition is barred by res judicata. this plea has been negatived by the high court for two reasons : (1) that in the earlier writ petition the validity of the permission granted under rule 4(a)(i) of the.....

Judgment:


1. This writ petition has been filed for seeking the reliefs for which the present petitioner had also filed W.P.(C) No. 6782 of 2008 and the said writ petition has been dismissed vide judgment and order dated 13.5.2008. The relevant part of the order reads as under:

The up-set price was fixed at Rs. 82,060/- for the said auction. Rule 38 of Orissa Minor Minerals Concession Rules, 2004 provides that notice for such auction shall be published in a Newspaper on two consecutive days in a vernacular language. In the instant case there is no averment that such notice was not published on two consecutive days in a vernacular language. In absence of such averments, we cannot presume that the provisions of Rule 38 of OMMC Rules, 2004 has not been complied with.

As such we do not find any reason to set aside the settlement of the sand sairat in favour of the Opp.party No. 3.

The writ petition is accordingly disposed of.

2. A preliminary objection has been raised by Shri Pitambar Acharya, learned Counsel appearing for the opposite party regarding the maintainability of the writ petition contending that it is barred by constructive res judicata as envisaged in Explanation-IV to Section 11 of the Code of Civil Procedure. In support of his contention, he has placed heavy reliance upon the judgment of the Hon'ble Supreme Court in Forward Construction Co. and Ors. v. Prabhat Mandal, Andheri and Ors. AIR 1986 SC 391 wherein the apex Court at paragraph 19 and 20 has held as under:

The second question for consideration is whether the present writ petition is barred by res judicata. This plea has been negatived by the High Court for two reasons : (1) that in the earlier writ petition the validity of the permission granted under Rule 4(a)(i) of the Development Control Rules was not in issue; and (2) that the earlier writ petition filed by Shri Thakkar was not a bona fide one inasmuch as he was put up by some disgruntled builder, namely M/s. Western Builders.

So far as the first reason is concerned, the High Court in our opinion was not right in holding that the earlier judgment would not operate as res judicata as one of the grounds taken in the present petition was conspicuous by its absence in the earlier petition. Explanation IV to Section 11, CPC provides that any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. An adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had it decided as incidental to or essentially connected with the subject matter of the litigation and every matter coming within the legitimate purview of the original action both in respect of the matters of claim or defence. The principle underlying Explanation IV is that where the parties have had an opportunity of controverting a matter that should be taken to be the same thing as if the matter had been actually controverted and decided. It is true that where a matter has been constructively in issue it cannot be said to have been actually heard and decided. It could only be deemed to have been heard and decided. The first reason, therefore, has absolutely no force.

We have heard the learned Counsel for the parties and we are of the considered opinion that the writ petition is barred by constructive res judicata. In the earlier judgment, the Court has refused to disturb the settlement of sand sairat made in favour of the opposite party No. 3. Therefore, the question of entertaining the same issue again does not arise.

The writ petition is accordingly dismissed.


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