A relief if it is not granted or if the judgment is silent regarding a particular relief; it is, both, in accordance with the principle of res judicata enumerated in Section 11 of the Code of Civil Procedure and also in accordance with general principle of res judicata, which, undoubtedly, applies to writ petitions also; it must be taken to have been impliedly refused and the bar of res judicata applies. In this case, the reasoning given by the Court would leave us in no doubt that the Court was not inclined to grant the relief as sought for. In fact, the Court had disposed of the writ petition in terms of the earlier judgment, wherein the Court had closed the matter.
52. That was a case, where there was a decision by the court on merits and not on consent and a particular prayer was refused by implication and, hence, it was held to be res judicata; but, in this case, we have first of all noticed that there is no decision. While Section 11 of the Code of Civil Procedure as such is not applicable to Article 226 and Section 11 only recognizes certain basic principles about the doctrine of res judicata, it is necessary to advert to the scheme of Section 11. In our view, the purpose appears to be to preclude the court from hearing the matter, which was directly and substantially in issue in a former proceeding between these parties, which was heard and finally decided by the said court. The Explanations intend to both clarify and enlarge the scope of the provision. An instance of enlarging the scope of the main provision is contained in Explanation IV, which provides that a matter, which might and ought to have been made ground of defence or attack in a former suit, is to be treated as a matter, which was directly and substantially in issue in the suit. Equally Explanation V also purports to deal with the case, where, though the court has neither granted nor refused expressly a relief, which was sought in the earlier suit, the law deems that in the case of silence in the matter the relief was refused. Explanation IV sets out the principle of constructive res judicata. We would think that, while it does expand the principle of res judicata; in that, a matter, which was not decided actually, is still regarded as barred by res judicata though it was not expressly finally decided by the court, it cannot apply to a case, where there is only a consent decree. This is for the reason that, running as a golden thread through the provisions, is the principle that the earlier suit must have been decided finally on merits. If a matter is heard and finally decided, then, provided the conditions are otherwise satisfied, a matter, which could have been raised by the plaintiff or by the defendant (ground of defence or attack), would be deemed to have been decided. This salutary principle is intended to advance the cause of justice by preventing parties from omitting or refusing to take up all the contentions, which they ought and might have taken. This principle, itself, is undoubtedly subject to many limitations, which, for a decision in this case, need not detain us. Suffice it to say, as already noticed, we cannot allow it to be invoked by the respondents in a case, where the earlier case itself was not finally heard and decided; but, instead, it was disposed of on consent.
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Special Appeal No. 14 of 2015
Decided On: 12.05.2017
Hon'ble Judges/Coram:
K.M. Joseph, C.J. and V.K. Bist, J.
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