Does the doctrine of res judicata apply in the following case? A writ petition under Article 226 of the Constitution was dismissed by High Court in limine without a speaking order…Article 32 on the same subject matter taking the same plea.

Question: Does the doctrine of res judicata apply in the following case? A writ petition under Article 226 of the Constitution was dismissed by High Court in limine without a speaking order. The petitioner subsequently filed a petition under Article 32 on the same subject matter taking the same plea. [UPHJS, 1995]

Find the answer to the mains question only on Legal Bites. [Does the doctrine of res judicata apply in the following case? A writ petition under Article 226 of the Constitution was dismissed by High Court in limine without a speaking order. The petitioner subsequently filed a petition under Article 32 on the same subject matter taking the same plea. [UPHJS, 1995]]

Answer

When the High Court dismisses the writ petition in limine (at the beginning itself), then in that case the doctrine of res judicata will not apply. However, it is required that the writ petition be dismissed without a speaking order for the applicability of the doctrine of res judicata.

In the case of Bansi And Anr. v. Additional Director AIR 1967 P H 28 the court held that, if the petition filed in the High Court under Article 226 is dismissed not on the merits but because of the laches of the party applying for the writ or because it is held that the party had an alternative remedy available to it, then the dismissal of the writ petition would not constitute a bar to a subsequent petition under Article 32 except in the case where and if the facts thus found by the High Court may themselves be relevant even under Article 32.

If a writ petition is dismissed in limineand an order is pronounced on that behalf, whether or not the dismissal would constitute a bar would depend upon the nature of the order. If the order is on the merits it would be a bar; if the order shows, that the dismissal was for the reason that the petitioner was guilty of laches or that he had an alternative remedy it would not be a bar, except in cases which we have already indicated. If the petition is dismissed in limine without passing a speaking order then such dismissal cannot be treated as creating a bar of res judicata.

Similarly, In Daryao v. State of U.P., AIR 1961 SC 1457, the Supreme Court observed held that, if a writ petition is dismissed in limine and order is pronounced on that behalf, whether or not the dismissal would constitute a bar would depend on the nature of the order. If the order is on merits, it would be a bar, but where an order is without a speaking order, such dismissal cannot be treated as creating a bar of res judicata.

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