Case Analysis of Daryao vs. State of UP

International Journal of Law and Legal Jurisprudence Studies :ISSN:2348-8212:Volume 2 Issue 6 187
Daryao and Others v. State of Uttar Pradesh: A

Case Analysis
Devanshi Dalal1
ABSTRACT
In the leading case of Daryao & Others v. State of UP & Others, the
Supreme Court has placed the doctrine of Res Judicata on a high pedestal,
considering the binding character of judgments pronounced by competent
courts as an essential part of the rule of law. Gajendragadhkar, J. rightly
observed: “ it is in the interest of the public at large that a finality should
attach to the binding decisions pronounced by courts of competent
jurisdiction.” If this principle form the foundation of the general rule of
Res Judicata it cannot be treated as irrelevant or inadmissible even in
dealing with fundamental rights in petitions filed under article 32.The
court, in these circumstances, held that if a petition filed by a party under
article 226 is considered on merits and is dismissed, the decision thus
pronounced would constitute Res Judicata and bind the parties unless it is
otherwise modified or reversed in appeal to other appropriate proceedings
permissible under the constitution. It would not be open to a party to
ignore the said judgment and move to the Supreme Court under article 32
by an original petition made on the same facts and for obtaining the same
or similar orders.
1
B.B.A.LLB (Honors),Gujarat National Law University
Published By : Universal Multidisciplinary Research Institute Pvt Ltd

INTRODUCTION
The present case, Daryo & Ors. v State of Uttar Pradesh2 debated as to
when would the dismissal of writ petition by the High Court be a bar to the
petition in Supreme Court in relevance to Res Judicata. The relevant laws
which were used are as follows ---- Articles 32 and 226 of the Constitution
of India along with the relevant sections of the Code of Civil Procedure,
1908 related to Res Judicata which are Section 11 and Order XLVII, Rule
1. The two main cases which were also referred to in this case were
M.S.M. Sharma v. Shree Krishna Sinha; Raj Lakshmi Dasi v. Banamali
Sen3.
It has been settled since long that though section 11 of the code explaining
the principle of Res Judicata does not, in terms, apply to writ petitions,
there are no good grounds to preclude decisions in matters in controversy
in writ proceedings under article 32 or article 226 of the constitution from
operating as Res Judicata in subsequent petitions or regular suits on the
same matters in controversy between the same parties and thus to give
limited effect to the principle of finality of the decision after full contest.
Thus this assignment deals with different cases in which the doctrine of
Res Judicata has been applied by the Courts of Justice and their
implications on the process of justice.
2
[ 1962 ] 1 SCR 574
3
[ 1953 ] 4 SCR 154

FACTS OF THE CASE
The petitioners and their ancestors had been the tenants of the land
described in Annexure A attached to the petition and that respondents are
the proprietors of the said land for the past fifty years.
Owing to communal disturbances in the Western District of Uttar Pradesh

in 1947, the petitioners left their village in July, 1947; later on their return
in November, 1947 they found that during their temporary absence
respondents had entered in unlawful possession of the said land.
Since the said respondents refused to deliver possession of the land to the
petitioners the petitioners had to file suits for ejectment under s. 180 of the
U.P. Tenancy Act, 1939. These suits were filed in June, 1948. In the trial
court the petitioners succeeded and a decree was passed in their favor. The
said decree was confirmed in appeal which was taken by respondents
before the learned Additional Commissioner. In pursuance of the appellate
decree the petitioners obtained possession of the land through Court.
Respondents then preferred a second appeal before the Board of Revenue

under s. 267 of the U.P. Tenancy Act, 1939. On March 29, 1954, the
Board allowed the appeal preferred by respondents and dismissed the
petitioner's suit with respect to the land, whereas the said respondents'
appeals with regard to other lands were dismissed. The decision of the
Board was based on the ground that by virtue of the U.P. Zamindari
Abolition and Land Reforms (Amendment) Act XVI of 1953 respondents
3 to 5 had become entitled to the possession of the land.

Aggrieved by this decision the petitioners moved the High Court at

Allahabad under Art. 226 of the Constitution for the issue of a writ of
certiorari to quash the said judgment. Before the said petition was filed a
Full Bench of the Allahabad High Court had already interpreted s. 20 of
the U.P. Land Reforms Act as amended by Act XVI of 1953. The effect of
the said decision was plainly against the petitioners' contentions, and so
the learned advocate who appeared for the petitioners had no alternative
but not to press the petition before the High Court. In consequence the said
petition was dismissed on March 29, 1955. It appears that s. 20 has again
been amended by s. 4 of Act XX of 1954.
It was under these circumstances that the petitioners filed the petition
under Art. 32 on March 14, 1956 in the Supreme Court. It was plain that at
the time when the present petition had been filed the period of limitation
prescribed for an appeal under Art. 136 against the dismissal of the
petitioners' petition before the Allahabad High Court had already expired.
It was also clear that the grounds of attack against the decision of the
Board which the petitioners seek to raise by their present petition are
exactly the same as the grounds which they had raised before the
Allahabad High Court; and so it is urged by the respondents that the
present petition is barred by Res Judicata.

LEGAL ISSUES RAISED AND DECIDED
The petitioners moved to the Supreme Court even after judgment passed
by the Allahabad High Court claiming that under 32(1) it was a
Fundamental right and thus the issue of Res Judicata will not be
considered in the case.
It was held that there was no substance in the plea that the judgment of the
High Court could not be treated as Res Judicata because under Article 226
of the Constitution of India.

DOCTRINE OF RES JUDICATA
RES JUDICATA means "a thing decided" in Latin. It is a common law

doctrine meant to bar re-litigation of cases between the same parties in
Court. Once a final judgment has been handed down in a lawsuit
subsequent judges who are confronted with a suit that is identical to or
substantially the same as the earlier one will apply res judicata to preserve
the effect of the first judgment. This is to prevent injustice to the parties of
a case supposedly finished, but perhaps mostly to avoid unnecessary waste
of resources in the court system. Res judicata does not merely prevent
future judgments from contradicting earlier ones, but also prevents them
from multiplying judgments, so a prevailing plaintiff could not recover
damages from the defendant twice for the same injury4.
Res judicata includes two related concepts: claim preclusion, and issue
preclusion (also called collateral estoppel), though sometimes res judicata
is used more narrowly to mean only claim preclusion. Claim preclusion
focuses on barring a suit from being brought again on a legal cause of
action that has already been finally decided between the parties. Issue
preclusion bars the re-litigation of factual issues that have already been
necessarily determined by a judge or jury as part of an earlier claim. It is
often difficult to determine which, if either, of these apply to later lawsuits
that are seemingly related, because many causes of action can apply to the
same factual situation and vice versa. The scope of an earlier judgment is
probably the most difficult question that judges must resolve in applying
4 th
Mulla Code of Civil Procedure, Vinay Kumar Gupta,14 Edition,LexisNexis
Butterworths, New Delhi

res judicata. Sometimes merely part of a subsequent lawsuit will be

affected, such as a single claim being struck from a complaint, or a single
factual issue being removed from reconsideration in the new trial.
Res judicata does not restrict the appeals process, which is considered a
linear extension of the same lawsuit as it travels up (and back down) the
appellate court ladder. Appeals are considered the appropriate manner by
which to challenge a judgment rather than trying to start a new trial, and
once the appeals process is exhausted or waived, res judicata will apply
even to a judgment that is contrary to law.
However, there are limited exceptions to res judicata that allow a party to
attack the validity of the original judgment, even outside of appeals. These
exceptions--usually called collateral attacks--are typically based on
procedural or jurisdictional issues, based not on the wisdom of the earlier
court's decision but its authority or competence to issue it. A collateral
attack is more likely to be available (and to succeed) in judicial systems
with multiple jurisdictions, such as under federal governments, or when a
domestic court is asked to enforce or recognize the judgment of a foreign
court.
Or in other words, this doctrine is based on the following three maxims:
1. Nemo debet lis vaxari pro una eteadem which means none should
be vexed twice for the same cause;
2. Interest reipublicae ut sit finis litium which means that it is the
interest of the state that there should be an end to litigation;

3. Res Judicata pro verita occipitur which means that a judicial

decision must be accepted as correct,
The first ground is based on private interest whereas the other two take
care of public policy and larger interest of the society5
The doctrine of Res Judicata is founded on the principles of justice, equity

and good conscience4.The doctrine apples to all judicial proceedings and
equally to all quasi judicial proceedings before tribunals. Section 11 of
CPC operates against both the parties to a suit and not against the
defendant alone. The principle of Res Judicata is an inhibition against the
court and is a mixed question of fact and law and has to be specifically
pleaded. In determining the application of the rule of Res Judicata, the
court is not concerned with the correctness or otherwise of the earlier
judgment. A wrong decision by a court having jurisdiction is as much
binding between the parties as a right one and it may be superseded only
by an appeal or revision to a higher court or tribunal or other procedure
known to law.
5
Civil Procedure C.K.Takwani, , Eastern Book Company, New Delhi, Sixth
Edition, 2009.

WRIT PETITIONS
It has been settled since long that though Section 11 of the Code does not,
in terms, apply to writ petitions, there is no good ground to preclude
decisions in matters in controversy in writ proceedings under Article 32 or
Article 226 of the Constitution from operating as Res Judicata in
subsequent petitions or regular suits on the same matters in controversy
between the same parties and thus to give limited effect to the principle of
finality of decision after full contest. In Sharma v. Krishna Sinha6, for the
first time, the Supreme Court held that the general principle of Res
Judicata applies even to writ petitions filed under Article 32 of the
Constitution of India. Thus, if once the petition filed under Article 32 of
the Constitution is dismissed by the Court, subsequent petition is barred.
Similarly, if a writ petition filed by a party under Article 226 is considered
on merits as a contested matter and is dismissed, the decision thus
pronounced would continue to bind the parties unless it is otherwise
modified or reversed in appeal or in other appropriate proceedings
permissible under the Constitution. It would not be open to a party to
ignore the said judgment and again move the High Court under Article 226
or the Supreme Court under Article 32 on the same facts and for obtaining
the same or similar orders or writs.6
CONTENTIONS
6
[ 1961 ] 1 SCR 96

BY PETITIONER
Mr. Agarwal who addressed the principal arguments on behalf of the

petitioners in this group contends that the principle of Res Judicata which
is no more than a technical rule similar to the rule of estoppel cannot be
pleaded against a petition which seeks to enforce the fundamental rights
guaranteed by the Constitution. He argues that the right to move the
Supreme Court for the enforcement of the fundamental rights which is
guaranteed by Art. 32(1) is itself a fundamental right and it would be
singularly inappropriate to whittle down the said fundamental right by
putting it in the straight jacket of the technical rule of Res Judicata.
The argument that Art. 32 does not confer upon a citizen the right to move
this Court by an original petition but merely gives him the right to move
this Court by an appropriate proceeding according to the nature of the case
seems to us to be unsound. It is urged that in a case where the petitioner
has moved the High Court by a writ petition under Art. 226 all that he is
entitled to do under Art. 32(1) is to move this Court by an application for
special leave under Art. 136; that, it is contended, is the effect of the
expression "appropriate proceedings" used in Art. 32(1). In our opinion,
on a fair construction of Art. 32(1) the expression "appropriate
proceedings" has reference to proceedings which may be appropriate
having regard to the nature of the order, direction or writ which the
petitioner seeks to obtain from this Court. The appropriateness of the
proceedings would depend upon the particular writ or order which he
claims and it is in that sense that the right has been conferred on the citizen
to move this Court by appropriate proceedings. That is why we must

proceed to deal with the question of Res Judicata on the basis that a
fundamental right has been guaranteed to the citizen to move this Court by
an original petition wherever his grievance is that his fundamental rights
have been illegally contrive
BY RESPONDENTS
On the other hand it is urged by the learned Advocate-General of Punjab,

who led the respondents, that Art. 32(1) does not guarantee to every
citizen the right to make a petition under the said article but it merely gives
him the right to move this Court by appropriate proceedings, and he
contends that the appropriate proceedings in cases like the present would
be proceedings by way of an application for special leave under Art. 136
or by way of appeal under the appropriate article of the Constitution. It is
also suggested that the right to move which is guaranteed by Art. 32(1)
does not impose on this Court an obligation to grant the relief, because as
in the case of Art. 226 so in the case of Art. 32 also the granting of leave is
discretionary.
There can be no doubt that the fundamental right guaranteed by Art. 32(1)
is a very important safeguard for the protection of the fundamental rights
of the citizens, and as a result of the said guarantee this Court has been
entrusted with the solemn task of upholding the fundamental rights of the
citizens of this country. The right given to the citizen to move this Court
by a petition under Art. 32 and claim an appropriate writ against the
unconstitutional infringement of his fundamental rights itself is a matter of

fundamental right, and in dealing with the objection based on the

application of the rule of Res Judicata this aspect of the matter had no
doubt to be borne in mind.
But, is the rule of Res Judicata merely a technical rule or is it based on

high public policy? If the rule of Res Judicata itself embodies a principle
of public policy which in turn is an essential part of the rule of law then
the objection that the rule cannot be invoked where fundamental rights are
in question may lose much of its validity. Now, the rule of Res Judicata as
indicated in s. 11 of the Code of Civil Procedure has no doubt some
technical aspects, for instance the rule of constructive Res Judicata may be
said to be technical; but the basis on which the said rule rests is founded
on considerations of public policy. It is in the interest of the public at large
that a finality should attach to the binding decisions pronounced by Courts
of competent jurisdiction, and it is also in the public interest that
individuals should not be vexed twice over with the same kind of
litigation. If these two principles form the foundation of the general rule of
Res Judicata they cannot be treated as irrelevant or inadmissible even in
dealing with fundamental rights in petitions filed under Art. 32.
In support of this decision Sinha, C.J., who spoke for the Court, referred to
the earlier decision of this Court in Raj Lakshmi Dasi v. Banamali Sen 7
and observed that the principle underlying Res Judicata is applicable in
respect of a question which has been raised and decided after full contest,
even though the first Tribunal which decided the matter may have no
jurisdiction to try the subsequent suit and even though the subject-matter
7
*[ MANU/SC/0063/1952 : [1953]4SCR154]

of the dispute was not exactly the same in the two proceedings. We may
add incidentally that the Court which tried the earlier proceedings in the
case of Raj Lakshmi Dasi8, was a Court of exclusive jurisdiction. Thus this
decision establishes the principle that the rule of Res Judicata can be
invoked even against a petition filed under Art. 32.
The scope of the writs, orders or directions which the High Court can issue
in appropriate cases under Art. 226 are concurrent with the scope of
similar writs, orders or directions which may be issued by this Court under
Art. 32. The cause of action for the two applications would be the same. It
is the assertion of the existence of a fundamental right and its illegal
contravention in both cases and the relief claimed in both the cases is also
of the same character. Article 226 confers jurisdiction on the High Court
to entertain a suitable writ petition, whereas Art. 32 provides for moving
this Court for a similar writ petition for the same purpose. Therefore, the
argument that a petition under Art. 32 cannot be entertained by a High
Court under Art. 226 is without any substance; and so the plea that the
judgment of the High Court cannot be treated as Res Judicata on the
ground that it cannot entertain a petition under Art. 32 must be rejected.
if a writ petition filed by a party under Art. 226 is considered on the merits
as a contested matter and is dismissed the decision thus pronounced would
continue to bind the parties unless it is otherwise modified or reversed by
appeal or other appropriate proceedings permissible under the
Constitution. It would not be open to a party to ignore the said judgment
and move this Court under Art. 32 by an original petition made on the
8
Supra 5

same facts and for obtaining the same or similar orders or writs. If the
petition filed in the High Court under Art. 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 Art. 32 except in cases where and if the facts
thus found by the High Court may themselves be relevant even under Art.
32. If a writ petition is dismissed in limine and an order is pronounced in
that behalf, whether or not the dismissal would constitute a bar would
depend upon the nature of the order.
DECISION
The Court is satisfied that a change in the form of attack against the
impugned statute would make no difference to the true legal position that
the writ petition in the High Court and the present writ petition are
directed against the same statute and the grounds raised by the petitioner in
that behalf are substantially the same. Therefore the decision of the High
Court pronounced by it on the merits of the petitioner's writ petition under

Art. 226 is a bar to the making of the present petition under Art. 32. In the
result this writ petition fails and is dismissed. There would be no order as
to costs. Petition dismissed.
PRINCIPLES LAID DOWN

-BY THE SUPREME COURT
In the leading case of Daryao v. State of U.P, the Supreme Court has
exhaustively dealt with question of applicability of the principle of Res
Judicata in writ proceedings and laid down certain principles which may
be summarized thus:

1. If a petition under Article 226 is considered on merits as a

contested matter and is dismissed, the decision would continue to
bind the parties unless it is otherwise modified or reversed in
appeal or other appropriate proceedings permissible under the
Constitution.
2. It would not be open to a party to ignore the said judgment and
move the Supreme Court under Article 32 by an original petition
made on the same facts and for obtaining the same or similar
orders or writs.
3. If a petition under Article 226 in a High Court is dismissed not on
merits but because of latches of the party applying for the writ or
because it is held that the party had an alternative remedy available
to it, the dismissal of the writ petition would not constitute a bar to
a subsequent petition under Article 32.
4. Such a dismissal may, however, constitute a bar to a subsequent
application under Article 32 where and if the facts thus found by
the High Court by themselves relevant even under Article 32.
5. If a writ petition is dismissed in limine and an order is pronounced
in 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.
6. If a petition is dismissed in limine without a speaking order, such
dismissal cannot be treated as creating a bar of Res Judicata.
7. If a petition is dismissed as withdrawn, it cannot be a bar to a
subsequent petition under Article 32 because in such a case, there
had been no decision on merits by the court.

To the above principles, few more may be added:
8. The doctrine of constructive Res Judicata applies to writ

proceedings and when any point which might and ought to have
been taken but was not taken in an earlier proceeding cannot be
taken in a subsequent proceeding.
9. The rule of constructive Res Judicata however does not apply to a
writ of habeas corpus. Therefore, even after the dismissal of one
petition of habeas corpus, a second petition is maintainable if fresh,
new or additional grounds are available.
10. The general principles of Res Judicata apply to different stages of
the same suit or proceeding
11. If a petitioner withdraws the petition without the leave of the court
to institute a fresh petition on the same subject-matter, the fresh
petition is not maintainable.

ANALYSIS
In Daryao, the Supreme Court has placed the doctrine of Res Judicata on a
higher footing, considering and treating the binding character of judgments
pronounced by competent courts as an essential part of the rule of law.
Gajendragadkar, J. rightly observed:
“It is in the interest of the public at large that a finality should attach to the
binding decisions pronounced by courts of competent jurisdiction, and it is
also in the public interest that individuals should not be vexed twice over
with the same kind of litigation. If these two principles form the
foundation of the general rule of Res Judicata they cannot be treated as
irrelevant or inadmissible even in dealing with Fundamental Rights in
petition filed under Article 32.”
Again, there is no good reason to preclude the decisions on matters in

controversy in writ proceedings under Article 226 or 32 of the
Constitution from operating as Res Judicata in subsequent regular suits on

the same matters in controversy between the same parties and thus to give
limited effect to the principle of the finality of decisions after full contest.
Thus in this case it was rightly decided by the Supreme Court, in favor of
the respondents that Res Judicata does apply even when it comes to
matters of writ petitions when the subject matter that is being dealt with
remains the same and therefore the decision of the Allahabad High Court
was held valid and rightly so. The general principles laid down by the
Supreme Court in this case has been taken as a benchmark for deciding
application of Res Judicata in subsequent cases and Daryao v. State of
Uttar Pradesh has been termed a landmark judgment in the purview of
section 11 of the Code of Civil Procedure 1908 in relation to writ petitions
under section 32 and 226 of the Constitution of India.

BIBLIOGRAPHY
1. Civil Procedure C.K.Takwani, Eastern Book Company,
New Delhi, Sixth Edition, 2009.
2. Code of Civil Procedure C.K. Thakker, Eastern Book
Company, New Delhi, volume I, 2002.
3. MJ’s code of Civil Procedure, Justice T.S. Doabia, ,908,
Lexisnexis Buttersworth Wadhwa, Nagpur, volume I,
13th edition,2008.
4. Mulla Code of Civil Procedure, Vinay Kumar
Gupta,14th Edition,LexisNexis Butterworths, New Delhi.

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International Journal of Law and Legal Jurisprudence Studies :ISSN:2348-8212:Volume 2 Issue 6 187

Daryao and Others v. State of Uttar Pradesh: A

Published By : Universal Multidisciplinary Research Institute Pvt Ltd

Published By : Universal Multidisciplinary Research Institute Pvt Ltd

FACTS OF THE CASE

Owing to communal disturbances in the Western District of Uttar Pradesh

Respondents then preferred a second appeal before the Board of Revenue

Published By : Universal Multidisciplinary Research Institute Pvt Ltd

Aggrieved by this decision the petitioners moved the High Court at

Published By : Universal Multidisciplinary Research Institute Pvt Ltd

LEGAL ISSUES RAISED AND DECIDED

Published By : Universal Multidisciplinary Research Institute Pvt Ltd

DOCTRINE OF RES JUDICATA

RES JUDICATA means "a thing decided" in Latin. It is a common law

Published By : Universal Multidisciplinary Research Institute Pvt Ltd

res judicata. Sometimes merely part of a subsequent lawsuit will be

Or in other words, this doctrine is based on the following three maxims:

Published By : Universal Multidisciplinary Research Institute Pvt Ltd

3. Res Judicata pro verita occipitur which means that a judicial

The doctrine of Res Judicata is founded on the principles of justice, equity

Published By : Universal Multidisciplinary Research Institute Pvt Ltd

Published By : Universal Multidisciplinary Research Institute Pvt Ltd

Mr. Agarwal who addressed the principal arguments on behalf of the

Published By : Universal Multidisciplinary Research Institute Pvt Ltd

On the other hand it is urged by the learned Advocate-General of Punjab,

Published By : Universal Multidisciplinary Research Institute Pvt Ltd

fundamental right, and in dealing with the objection based on the

But, is the rule of Res Judicata merely a technical rule or is it based on

Published By : Universal Multidisciplinary Research Institute Pvt Ltd

Published By : Universal Multidisciplinary Research Institute Pvt Ltd

Published By : Universal Multidisciplinary Research Institute Pvt Ltd

PRINCIPLES LAID DOWN

Published By : Universal Multidisciplinary Research Institute Pvt Ltd

1. If a petition under Article 226 is considered on merits as a

Published By : Universal Multidisciplinary Research Institute Pvt Ltd

To the above principles, few more may be added:

8. The doctrine of constructive Res Judicata applies to writ

Published By : Universal Multidisciplinary Research Institute Pvt Ltd

Again, there is no good reason to preclude the decisions on matters in

Published By : Universal Multidisciplinary Research Institute Pvt Ltd

Published By : Universal Multidisciplinary Research Institute Pvt Ltd

Published By : Universal Multidisciplinary Research Institute Pvt Ltd

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