In State of Maharashtra and others (supra) while considering the provisions of Section 11 of the Code of Civil Procedure it was observed in para 6 as under:
6. The important words are "has been heard and finally decided". The bar applies only if the matter directly and substantially in issue in the former suit has been heard and finally decided by a Court competent to try such suit. That clearly means that on the matter or issue in question there has been an application of the judicial mind and a final adjudication made. If the former suit is dismissed without any adjudication on the matter in issue merely on a technical ground of non-joinder, that cannot operate as res judicata."
In State of Uttar Pradesh and another (supra) it was held that dismissal of a suit for non-prosecution was not a decision on merit and hence, would not as par res judicata.
In Govindbhai Patel (supra) proceedings filed under the Tenancy Act were not entertained on the ground that the requisite certificate that was required to be filed along with the application had not been filed. In that context it was observed that dismissal of proceedings by an Authority not on merits but on account of some formal defect would not attract the principles of res judicata.
11. In the present case, as noted above both the earlier applications were not entertained on merits on account of failure to comply with the mandate of Section 17 of the Act of 1887. There was no adjudication on merits on the prayer for setting aside the ex parte decree. Thus, a vital ingredient for the applicability of the bar of constructive res judicata was missing. While deciding both the earlier applications, the Trial Court specifically observed that the applications were not maintainable due to non-compliance with the requirements of Section 17 of the Act of 1887. In the light of law referred to above it is therefore, clear that in absence of any adjudication on merits, the rejection of the earlier two applications would not operate as constructive res judicata and the subsequent application that was filed after complying with the provisions of Section 17 of the Act of 1887 was required to be considered on merits. Both the Courts were not justified in holding that as the earlier orders had attained finality, the proceedings were not tenable.
IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)
Writ Petition No. 385 of 2014
Decided On: 18.06.2015
Paramveersingh Santoshsingh Saini Vs. Tarachand
Hon'ble Judges/Coram:
A.S. Chandurkar, J.
Citation: 2015(4)ALLMR 862,2015(5) MHLJ 747
