A final decision of the High Court delivered on merits under Article 226 is binding and operates as res judicata, preventing a party from bypassing that judgment by seeking special leave under Article 136 against a lower tribunal's order on the same issue.

Headnote:(A) Civil Procedure Code, 1908 - Section 144 - Constitution of India - Articles 136, 226 and 32 - Res Judicata - Binding nature of High Court decisions - Where a petition under Article 226 is heard on merits and dismissed by the High Court, the decision pronounced is binding on the parties unless modified or reversed in appeal or other appropriate proceedings (Para 4). If the rule of res judicata bars a petition under Article 32, it applies a fortiori to an appeal under Article 136, where the right to relief is discretionary (Para 4).

(B) Special Leave Petition - Scope - A party cannot bypass a final and binding decision of the High Court by attacking the correctness of a decision of a lower tribunal that was the subject of the High Court's consideration (Para 3).

Facts of the case:
An eviction decree was passed against a tenant, and possession was taken by the landlord. Subsequently, a compromise was recorded nullifying the eviction and recognizing the original party as a tenant. However, the landlord had already inducted new tenants into the property. The original tenant applied for restitution of possession under the Code of Civil Procedure. After the application was rejected by the revenue authorities, the tenant filed a petition under Article 226 of the Constitution before the High Court. The High Court dismissed the petition after discussing the merits, ruling that the new tenants had acquired statutory rights and could not be evicted. The tenant did not appeal this High Court decision but instead sought special leave to appeal against the earlier order of the revenue board.

Findings of Court:
The preliminary objection regarding res judicata is well-founded. Since the High Court had already dismissed the petition on merits and that judgment had become final and binding, the appellant is not entitled to seek a reversal of that decision by challenging the order of the revenue board.

Issues: Whether an appeal under Article 136 is maintainable against an order of a revenue board when a subsequent petition to the High Court on the same merits has been dismissed and has become final.

Ratio Decidendi: A decision of the High Court delivered on the merits of a case under Article 226 is binding on the parties. Such a decision cannot be bypassed by invoking the discretionary jurisdiction of the Supreme Court under Article 136 to challenge a prior order of a lower authority on the same facts and reliefs. (Paras 4 and 5).

Result: Appeal dismissed with costs.

Judgment

AYYANGAR, J. : This is an appeal by special leave against an order of the Board of Revenue, Uttar Pradesh which declined to order restitution under S. 144, Civil Procedure Code in the following circumstances. The father of the 1st respondent was the Zamindar who filed a suit in the court of Sub-Divisional Officer; Tehsil Iglas at Aligarh for the eviction of Ram Prasad-father of the appellants from certain plots of land situated in village Kanchiraoli in the district of Aligarh. The suit was decreed and in execution of that decree the Zamindar took possession. Thereafter Ram Prasad filed an appeal to the Additional Commissioner but this was dismissed in November, 1944. He then preferred a further appeal to the Board of Revenue but before it came on for hearing the dispute was settled and on March 28, 1948 an application was filed for recording this compromise. The term of the compromise which is of relevance to the present appeal is that Ram Prasad was to be recognised as tenant of the land in dispute; in other words, the order for eviction was nullified. The compromise was recorded and a decree in terms thereof was passed. Some attempt was made by the Zamindar to have the compromise set aside on grounds which it is not necessary to mention, but these attempts failed with the result that it left the compromise decree passed by the Board in full force. It might however, be mentioned that the Zamindar immediately obtained possession in execution of the decree of the Sub-Divisional Officer, admitted one Data Ram and certain others as tenants and put them in possession of the property and this has led to all the subsequent complications in this case.

2. On the strength of the compromise decree Ram Prasad applied for restitution of possession under S. 144 of the Civil Procedure Code. This application was resisted particularly by Data Ram and others who had been inducted as tenants on the land, while the eviction proceedings were pending before the Additional Commissioner on appeal. The trial court allowed the application on the ground that Data Ram and others were bound by the rule of lis pendens and were not, therefore, entitled to retain the possession which they obtained during the proceedings for ejectment. Form this order an appeal was taken by Data Ram and others to the Additional Commissioner who, for reasons which it is not necessary now to canvass, held that the newly inducted tenants could not be dispossessed and that Ram Prasad was entitled only to symbolical possession as against the Zamindar. This order was taken to the Board in revision where, however, it was dismissed. It is to challenge the correctness of this order that this Appeal has been filed.

3. Learned Counsel for the respondent raised two preliminary objections to the hearing of this appeal. The first objection was that this appeal was barred by res judicata. To understand this objection it is necessary to state a few more facts. When the Board of Revenue upheld the order of the Additional Commissioner declining one prayer of the appellants for restitution they filed an application for review and when this was dismissed they brought the matter before the High Court by an application made to it under At. 226 of the Constitution. The actual judgment rendered by the High Court is not on record but it was admitted before us by learned Counsel for the appellant that the High Court dismissed the petition after elaborately discussing the merits of the contentions raised and on that ground Data Ram and others who had been let into possession by the Zamindar obtained a statutory right to possession under the U.P. Zamindari and Land Reforms Act. 1950 and could not therefore be evicted by the application of the rule of lis pendens. No attempt was made by the appellant to prefer any appeal against this judgment by either applying to that court and obtaining a certificate of fitness or by moving this Court for the grant of special leave. The result is that there i