A. Pasayat, J.
After discussing facts their Lordships have held :
12. The concept of per incuriam is that those decisions which are given in ignorance in forgetfulness of some relevant statutory provisions or some authority. Where the judgment does not consider the statutory provision it passes on sub-silentio. Incuria literally means 'carelessness'. In practice per incuriam appears to mean per ignoratium. English Courts have developed this principle in relation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratium of a statute or other binding authority'. (See Young v. Bristol Aeroplane Co. Ltd., (1944) 2 All ER 293). Same has been accepted, approved and adopted by the apex Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedent as a matter of law. In Jaisri Sahu v. Rajdwan Dubey : AIR 1962 SC 83 the Apex Court while pointing out the procedure to be followed when conflicting decisions are placed before a Bench extracted a passage from Halsbury's Laws of England incorporating one of the exceptions when the decision of an appellate Court is not binding.
13. Does this principle extend and apply to a conclusion of law, which was neither raised nor preceded by any consideration? In other words can such conclusions be considered as declaration of law ? Here again the English Courts and jurists have carved'out an exception to the rule of precedents. It has been explained as rule of sub-silentio. "A decision passed sub-silentio, in technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the Court or present to its mind." (Salmond on Jurisprudence, 12th Edn., P. 153), In Lancaster Motor Company (London) Ltd. v. Bremith Ltd. : (194.1) 2 All ER 11, the Court did not feel bound by earlier decision as it was rendered 'without any argument, without reference to the crucial words of the rule and without any citation of the authority'. It was approved by the apex Court in Municipal Corporation of Delhi v. Gurnam Kaur : (1989) 1 SCC
101. The Bench held that, 'precedents sub-silentio and without argument are of no moment'. The Courts thus have taken recourse to this principle for relieving from injustice perpetrated by unjust precedents. A decision which is not express and is not founded on reasons nor it proceeds on consideration of issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141. Uniformity and consistency are core of judicial discipline. But that which escapes in the judgment without any occasion is not ratio decidendi. In B. Sharma Rao v. Union Territory of Pondicherry : AIR 1967 SC 1480 it was observed, 'it is trite to say that a decision is binding not because of its conclusions but in regard to its ratio and the principles, laid down therein'. Any declaration or conclusion arrived without application of mind or preceded without any reason cannot be deemed to be declaration of law or authority of a general nature binding as a precedent. Restraint in dissenting or overruling is for sake of stability and uniformity but rigidity beyond reasonable limits is inimical to the growth of law. It is stated that the Apex Court had not taken note of certain provisions in right perspective, and therefore, the judgment is per incuriam and passes on sub-silentio. With reference to the observations of the Apex Court in paragraph 44 of the judgment, it is stated that the observation that the High Court referred to Central Government in the matter of renewal of lease is not correct, because the renewal is to be considered by the State Government. Similarly with reference to paragraph 63 of the judgment it is.stated that the discretion of granting renewal of lease is with the State Government and not the Central Government, as stated by the Apex Court. In the context it has to be seen whether the judgment even if held to be per incuriam binds the parties. In Mamleshwar Prasad and Anr. v. Kanahaiya Lal (Dead) through L. Rs. : AIR 1975 SC 907, it was observed that even if a judgment is per Incuriam it would bind the parties. That being the position the petitioners cannot take the stand that the judgment is per incuriam, and does not bind them. The other aspect is if there were observations which were contrary to law, as stated by the petitioners, that aspect is to be adjudicated by the Apex Court and not in a writ application before the High Court. A wrong decision by a Court having jurisdiction is as much binding between the parties as a right one and may be superseded only by appeals to higher Tribunals or other procedure like review which the law provides. So far as the Apex Court is concerned, that assumes finality between the parties.
14. So far as the law of precedents is concerned, there can be no quarrel over the proposition that the judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for Judges to embark into lengthy discussions but the discussions is meant to explain and not to define. Judges interpret statutes, they do to interpret judgments. They interpret words of statutes, their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Horton : 1951 AC 737 at P. 761, Lord Mac Dermot observed :
"The matter cannot, of course, be settled merely by treating the ipsissim verba of Willes, J. as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished Judge."
A case is only an authority for what it actually decides. "The only, use of authorities or decided cases is the establishment of some principle, which the Judge can follow out in deciding the case before him". (Per Sir George Jessel M.R. in Re Hallet : (1880) 13 Ch.D. 712). In Home Office v. Dorset Yacht Co. : (1970) 2 All ER 294, Lord Reid said, "Lord Atkin's speech......is not to be treated as if it was a statutory definition. It will require qualification in new circumstances, "Megarry, J. in (1971) 1 WLR 1062 observed : 'One must not, of course, construe even a reserved judgment of even Russell L. J. as if it were an Act of Parliament". And, in Herrington v. British Railways Board : (1972) 2 WLR 537 Lord Morris said :
"There is always peril in treating the words of a speech or judgment, as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case."
"The precedents have turn upon us and they are engulfing and annihiltating us, engulfing and annihilating the very devotees that worshiped at their shrine" said Cardozo, J. Earl of Halsbury L.C. in Quinni v. Leethem : (1901) AC 496 HC observed that every judgment m.ust be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law but governed and qualified by the particular facts of the case in which such expressions are found and a case is.only an authority for what it actually decides.
15. The phrase 'res judicata' is used to include two separate states of things. One is where a judgment has been pronounced between parties and findings of fact are involved as a basis. for thai judgment. All the parties affected by the judgment are then precluded from disputing those facts, as facts, in any subsequent litigation between them. The other aspects of the term arises when a party seeks to set up facts which, if they had been set up in the first suit, would or might have affected the decision. This is not strictly raising any issue which has already been adjudicated, but it is convenient to use the res judicaia as relating to that position.
A plea of res judicata is otherwise called a plea of judgment. It operates not only on points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but also on every point which properly belonged to the subject of the litigation and which the parties exercising reasonable diligence might and ought to have brought forward at the time. The identity of subject-matter is not essential to res judicata. A finding essential to the decision, though not embodied in the decree, operates as a res judicata. But a decision of an issue, not absolutely necessary for determination of a suit is not res judicata.
In Jaswant v. Custodian : AIR 1985 SC 1096, it has been observed that in order to decide the question whether a subsequent proceeding is barred by res judicata, it is necessary to examine, the question with reference to the (i) forum or the competence of the Court, (ii) parties and their representatives, (iii) matters in issue, (iv) matters which ought to have been made ground for, defence or attack in the former suit, and (v) final decision. In order that a defence of res judicata may succeed, it is necessary to show that not only the cause of action was the same but also that the plaintiff had an opportunity of getting the relief, which he is now seeking in the former proceedings. The test is whether the claim in the subsequent suit or proceedings is in fact founded upon the same cause of action which was the foundation of the former suit or proceedings. In considering the question of res judicata, Court is not concerned with correctness or otherwise of the judgment rendered earlier. An adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought t6 have litigated and have had it decided as incidental to or essentially connected with the subject- matter of the litigation and every matter coming within the legitimate purview of the original action both in respect of the matter of claim or defence. The principle underlying Explanation IV to Section 11. Code of Civil Procedure is that where the parties have had an opportunity of controverting a matter that should be taken to be the same thing as if the matter had been actually controverted and decided.
16. One important consideration of public policy is that the decisions pronounced by Courts of competent jurisdiction should be final, unless they are modified or reversed by appellate authorities, and the other principle is that no one should be made to face the same kind of litigation twice over, because such a process would be contrary to considerations if fairplay and justice. (SeeDarvao v. State of UP : AIR 1961 SC 1457).
17. A somewhat similar situation as at hand had arisen in The Virudhunagar Steel Rolling Mills Ltd. v. The Government of Madras : AIR 1968 SC 1196. The Apex Court held that where a writ application is dismissed under Article 226 by a speaking order, application under Article 32 would be a bar, even if no notice was issued to the other side for such dismissal. It was observed that where a writ petition under Article 226 is disposed of on merits and the order of dismissal of the petition is a speaking that would amount to res judicata and would bar a petition under Article 32 on same facts. Here the issues were considered in SLPs/Civil Appeals, and the question is whether the High Court would entertain an application under Article 226. The answer is 'no'. We shall deal with the. factual aspects involved before the Apex Court in detail infra.
18. The principle of estoppel per rein judicatuni is a rule of evidence. It may be said to be 'the boarder rule of evidence which prohibits the reassertion of a cause of action'. This doctrine is based on two theories : (i) the finality and c.onclusiveness of judicial decisions for the final termination of disputes in the general interest of the community as a matter of public policy, and (ii) the interest of the individual that he should be protected from multiplication of litigation. As observed by the Apex Court in Daryao's case (supra), the principle of res judicata is based on two maxims, namely, (1) interest republicae ut sit finis litium (it is to the interest of the State that there should be an end to litigation), and (2) nomo debet his vexari pro eaden causa (an individual should not be vexed twice for the same cause). As Blackstohe put it : "An estoppel happens where a man hath done some act or executed some deed which estoppes or precludes him from averring anything to the contrary". It, therefor, serves not only a public but also a private purpose by obstructing the re-opening of matters which have once been adjudicated upon. It is thus not permissible to obtain a second judgment for the same civil relief on the same cause of action, for otherwise the spirit of contentiousness may give rise to conflicting judgments of equal authority, lead to multiplicity of actions and bring the administration of justice into disrepute. It is the cause of action which gives rise to an action, and that is why it is necessary for the Courts to recognise that a cause of action which results is a judgment must lose its identity and vitality and merge in the judgment when pronounced. It cannot therefore survive the judgment, or give rise to another cause of action on the same facts. This is what is known as the general principle of res judicata. But it may be that the same set of facts may give rise to two or more causes of action. If in such a case a person is allowed to choose and sue upon one cause of action at one time and to reserve the other for subsequent litigation, that would aggravate the burden of litigation. Courts have therefore treated such a course of action as an abuse of its process. This is another and an equally efficacious, aspect of the same principle, for its helps in raising the bar of res judicata by suitably construing the general principle of subduing a cantankerous litigant. That is why this other rule has sometimes been referred to as constructive res judicata which,Hn reality, is an aspect or amplification of the general principle. These principles were stated in classic terms in Maringson v. Blackburn Borough Council : (1939) 2 KB
In illuminating words Somervell L.J. has stated the position as follows in Greenhalgh v. Mallard: (1947) 2 All ER 255 at page 257.:
" I think that on the authorities to which I will refer it would be accurate to say that res judicata for "this purpose is not confined to the issues which the Court is actually asked to decide but that it covers issues or facts which are so clearly part of the subject-matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the Court to allow a new proceeding to be started in respect of them."
The position vis-a-vis Article 226 and Article 32 has been considered by the Apex Court in many cases. In The Director Recruit Class II Engineering Officers' Association and Ors. v. State of Maharashtra and Ors. : AIR 1990 SC 1607, the principles stated in the Virudhunagar Steel Rolling Mills' case (supra) and in Sarguja Transport Service v. State Transport Appellate Tribunal, Gwalior and Ors. : AIR 1987 SC 88 were reiterated.
After discussing facts their Lordships have held :
23. The inevitable result of the writ application is dismissed, which we direct. Cost, cost in the cause.
S.C. Datta, J.