Applicability to constructive res judicata to writ proceedings.

K. Shanmukham, J.

1. The petitioner claims to be a hereditary trustee of Uthiradi Srivaishnava Ramanuja Koodam, Triplicane, Madras which is declared to be a temple within the meaning of Section 9(12) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, Act XIX of 1951, hereinafter referred to as the. Act, by the Supreme Court of India. He challenges the charges that are framed against him by the 1st respondent, Deputy Commissioner, H.R & C.E. Admn. Department, in his proceedings Na.Ka. No. 12894/-83-A-1 dated 19.9.1983 and asks for issue of a writ of certiorari or any other appropriate writ to quash the said proceedings in so far as it related to the charges.

2. At the outset, it is essential to notice that the Writ Petitioner filed W.P. No. 9076 of 1983, D. Ramachander v. The Commissioner H.R. & C.E., Nungambakkam, Madras-34 and Anr. on the file of this Court wherein he challenged the proceedings of the 1st respondent in Na.Ka. 12894/83-A1, dated 19.9,1983 in so far as it related to the order of suspension and the appointment of a fit person under Section 53(4) of the Act in respect of Uthiradi Srivaishnav Ramanuja Koodam. It is here, it is relevant to notice the facts which led to the institution of W.P. No. 9076 of 1983. On receipt of complaint from Psihu Jahatmal Kirpalani and Satramadas Salt, the 1st respondent directed his subordinate, the Assistant Commissioner (2nd respondent) to make a preliminary inquiry about the complaint and to submit a report to him. It transpires that the 2nd respondent submitted a report stating that prima facie, there is truth in the complaints made by the said two individuals. This resulted in the 1st respondent passing the impugned order, whereby he framed as many as 12 charges under Section 53(2) of the Act and suspended the petitioner from the Office of Trusteeship and also appointing the Executive Officer of Sri Parthasarathiswami Temple as a fit person in respect of this temple. As already stated, the petitioner challenged his suspension and the appointment of fit person made in the very same proceeding Na. Ka. 12894/83-A1, dt. 19.9.1983 in W.P. No. 9076 of 1983. On hearing both sides, Mr. Justice Venkataswami dismissed the said petition. It is common ground that the order in W.P. No. 9076 of 1983 is now under appeal which is still pending.

3. The immediate question is whether the present proceeding is barred under the principle of constructive res judicata. According to Mr. U.N.R. Rao, learned senior counsel for the petitioner, res judicata is not applicable to the writ proceedings. He referred to Section 141, the Code of Civil Procedure, 1908 in this context.

The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of Civil 'jurisdiction.

The Explanation attached to Section 141 states that the expression 'Proceedings' includes proceedings under Order 9, but does not include any proceeding under Article 226 "of the Constitution. While Section 141 provided that the procedure provided in the Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction, Section 11 in the Code deals with res judicata. Thus according to Section 141, the Code of Civil Procedure, Section 11 as such will not be made applicable to the proceeding initiated under Article 226. Nevertheless, the law is well-settled that the principle of res judicata or constructive res judicata is applied to all other proceedings including proceedings under Article 226 of the Constitution of India so that there is no unnecessary multiplicity of proceedings and so that a finality is reached in a controversy. It is very useful to quote in this context paragraph No. 3 in State of U.P. v. Nawab Hussain .

The principle of estoppel per res judicata is a rule of evidence. As has been stated in Marginson v. Blackburn Borough Council (1939) 2 K.B. 426 at 437, it may be said