NABEESUMMA Vs. BEEPATHUMMA
HIGH COURT OF KERALA
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(1.) In this writ petition the petitioners who are landholders in respect of the property in which respondents 1 to 6 are kudikidappukars challenge the validity of Ext. P-1 order passed by the 7th respondent, Land Tribunal, Tirurangadi, in O. A. No. 144 of 1973 on its file, the operative portion of which reads as follows:
"A case is seen dismissed in the same issue (O. A. 959/72) on 28-2-1973. Hence I am of the opinion that the same case and not be taken again in the same court Hence this case (O. A. No. 144/73) is dismissed."
(2.) Sri. A. K. Sreenivasan, counsel for the petitioners, draws my attention to the averment in Para.2 of the original petition where it has been stated as follows: -
"..........the petitioners filed before the 7th respondent O. A. No. 959 of 1972 on 14-11-1972 which came up for first hearing on 13-2-1973, on which date the petitioners' advocate filed a Memo to the effect that "since there is no proper notice the application is not pressed" and hence that application was dismissed on 28-2-1973." (emphasis supplied).
In Para.4 of the counter affidavit filed by the 6th respondent on behalf of himself and respondents 1, 3 and 4, it is alleged as follows:
"After I have filed the application (O. A. 596/72), for purchase of kudikidappu, in order to prolong the matter, the petitioner filed O. A. 959/72 for shifting. This petition was dismissed without notice to these respondents and as such I am not aware of the reason for dismissal. I suspect that it was dismissed on the ground that petitioner had no bona fide need for constructing the house. The petitioners had suppressed the true copy of the order dismissing his application."
While counsel for the petitioners submits that inasmuch as the Tribunal did not consider the matter previously on merit, and the earlier petition happened to be dismissed on the ground that it was not pressed for want of proper notice, and the Tribunal's order is vitiated by an error apparent on the face of the record, Sri P. G. Rajagopalan, counsel for the respondents Nos. 1 to 6, submits that when the earlier petition was dismissed as "not pressed" it must be construed to have been dismissed on merit, and by the application of the principles of res judicata the petitioners' second application has rightly been rejected by the Tribunal. Sri Rajagopalan has brought to my notice the decision of the Supreme Court in Daryao & Others v. State of U.P. & Others (1961 (II) Supreme Court Appeals 591= AIR 1961 SC 1457 ). What was engaging the attention of the Supreme Court in that case was the question whether, when a petition before a High Court under Art.226 of the Constitution was not pressed, the same question could be agitated under Art.32 of the Constitution before the Supreme Court. In the earlier portion of Para.11 of the judgment in that case what has been stated is as follows:
"......If a judgment has been pronounced by a court of competent jurisdiction it is binding between the parties unless it is reversed or modified by appeal, revision or other procedure prescribed by law. Therefore, if a judgment has been pronounced by the High Court in a writ petition filed by a party rejecting his prayer for the issue of an appropriate writ on the ground either that he had no fundamental right as pleaded by him or there has been no contravention of the right proved or that the contravention is justified by the Constitution itself, it must remain binding between the parties unless it is attacked by adopting the procedure prescribed by the Constitution itself. The binding character of judgments pronounced by courts of competent jurisdiction is itself an essential part of the rule of law, and the rule of law obviously is the basis of the administration of justice on which the Constitution lays so much emphasis."
We have also to notice what the Supreme Court said towards the end of the same paragraph, which is as follows:
"......Thus, on general considerations of public policy there seems to be no reason why the rule of res judicata should be treated as inadmissible or irrelevant in dealing with petitions filed under Art.32 of the Constitution. It is true that the general rule can be invoked only in cases where a dispute between the parties has been referred to a court of competent jurisdiction, there has been a contest between the parties before the court, a fair opportunity has been given to both of them to prove their case, and at the end the court has pronounced Us judgment or decision. Such a decision pronounced by a court of competent jurisdiction is binding between the parties unless it is modified or reversed by adopting a procedure prescribed by the Constitution. In our opinion, therefore, the plea that the general rule of res judicata should not be allowed to be invoked cannot be sustained."
From what has been stated in Para.20 of the judgment it would appear that the petition before the Supreme Court was on the same allegations and was for the same relief sought for in the petition before the High Court.
(3.) Now, considering the facts of this case, we find that the words "not pressed" instead of "withdrawn" has been unhappily used; the reason stated for not pressing is that there was no proper notice. It is also found that the endorsement "not pressed" was made even on the very first day of the hearing. In the second application that was filed and which resulted in Ext. P-1 order, it is specifically stated that the previous application happened to be dismissed as "not pressed" for the reason that there was no proper notice. It is not an instance where, in a contest, the parties having availed of a fair opportunity to prove their case, the court had pronounced its judgment on the points in issue on their merit. Dismissal of the proceeding on the basis of an endorsement that it was not pressed for want of proper notice virtually amounts to it having been allowed to be withdrawn. The effect of the endorsement in the proceedings before the Land Tribunal has to be construed, due regard being given to the circumstances leading to it and the spirit in which the parties understood it, without mechanically giving the meaning assigned to those expressions in the Code of Civil Procedure, the provisions of which have application to the proceedings before the Land Tribunal only to the extent specifically provided for.;
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