Paragraph numbers below are the court’s original numbering, recovered from the source text.
12. From the aforesaid order we may note that the High Court ultimately dismissedthe case on the jurisdictional issue by observing that by no stretch of imagination, the dismissal of the criminal complaint for filing delay may be construed as acquittal so as to invoke the jurisdiction under Section 378 of CrPC, and ultimately held that it did not have jurisdiction to entertain such matter.It can be observed that the High Court at this juncture, recognised the incorrect invocation of the criminal appellate jurisdiction under the aforesaid provision and granted further liberty to move appropriate court if so advised.
13. When the matter came up before the High Court, in furtherance of the liberty granted earlier, for the second time in the Criminal Writ Petition under Article 226 of the Constitution of India. The High Courtvide impugned order dismissed and, inter alia, observed as under- “ 12. It is true that Hon’ble Justice Tahaliyani had granted liberty to file the Writ Petition. However, “liberty to file” is a phraseology without a valid sanction of any statute or any specific precedent. It is the liberty granted to the petitioner to probe the possibility of seeking the relief by an alternative remedy. The said liberty does not give right to a litigant fresh/anew to agitate the same issue/order which has attained finality. The liberty may confer a right to the petitioner to file a petition, but it does not confer jurisdiction upon the Court to probe into the correctness or the validity of the order under challenge. Review of a judgment cannot be had on this liberty. Hence, this Court is of the opinion that only because liberty is granted does not mean that the subsequent proceeding is maintainable in the eye of law or that it calls upon the successor Court to hold subsequent petition maintainable or pass an order setting aside the order passed by the Court granting liberty. The successor Court is not bound to hold the proceedings maintainable.” (emphasis supplied)
14. Having observed two orders by the High Court, the only question we need to ascertain is whether the High Court was right in dismissing the writ petition by treating the findings in the earlier order as binding?
15. At the outset we must observe that the High Court notes that the earlier decision has attained finality. Although not much guidance is provided in the impugned judgment as to how and why the earlier order attained finality, we can only second guess that High Court had the broad principle of res judicata in mind while coming to such conclusion.
16. There is no dispute that the rule of res judicatain common law, from Ferrer v. Arden, (1598) 77 Eng. Rep. 263,to recent precedents of this Court, has been accepted as a universal rule of law emanating from the public policy1 to limit excessive and unnecessary litigation. It may not be an overstatement to state that the principle of res judicata is as old as the law itself. The extent of application of res judicata in a country, on a comparative analysis of foreign jurisprudence, depends on various considerations such as efficiency, fairness, and substantive policies, but across the board a minimal core seems to be well preserved.
17. We may note that ‘issue estoppel or collateral estoppel’, which is a part of principle of res judicata, has often been agitated resulting in 1 interest reipublicae ut sit finis litium. MUNICIPAL CORPORATION OF GREATER MUMBAI v. PANKAJ ARORA (SECRETARY) [N. V. RAMANA, J.] bevy of decisions across Indian, English and American jurisprudence and has created large voluminous records of academic literature. It may not be beneficial herein to restate the entire law on this aspect, rather we restrict ourselves within the narrow scope in which this case falls.
18. In our opinion the High Court misconstrued the earlier order as it failed to note that the observations made thereunder were not binding since they were made without jurisdiction. It is useful to quote Corpus Juris Secundum2, which recognizes the difficulty faced by the High Court in application of res judicata in following words- ‘it is sometimes difficult to determine when a particular issue determined is of sufficient dignity to be covered by the rule of estoppel. Mulla3 has aptly cautioned against such mis-application of res judicata in the following manner- ‘It is not to be assumed that matters in respect of which issues have been framed are all of them directly and substantially in issue. Nor is there any special significance to be attached to the fact that a particular issue is the first in the list of issues. Which of the matters are directly in issue and which collaterally or incidentally, must be determined on the facts of each case. A material test to be applied is whether the court considers the adjudication of the issue material and essential for its decision.
19. It is apparent from the perusal of the impugned order that the High Court stretched the ambit of ‘finality’ for some observations to the saying (relating to collateral aspects) that every such observation was final unless reversed in appeal, which had an effect of throttling the substantive justice out of life. We cannot approve such reasoning of the High Court that the issue had attained finality, since the observations were made by a court which went against its own findings that the court did not have any authority/jurisdiction to do so. Once the court concludes that a case is not maintainable under Section 378 of CrPC, itdid not have any jurisdiction to make further observations on merits as has been done in this case.
20. Moreover, it was not necessary for the High Court in the earlier order to travel beyond the issue of ascertaining whether a dismissal 2 Vol. 50, ¶ 725 3 Mulla, CPC 15th Ed., p.104 of complaint on the ground of delay amounted to acquittal in order to invoke the jurisdiction under Section 378 of CrPC. The observations of the High Court on the interplay of CrPC and MMC Act and its implication on the facts were not foundational or necessary for the jurisdictional issue. Despite a specific jurisdictional issue present, the court gave a finding on merits andsuch finding cannot be treated as res judicata as it was purely auxiliary or non-foundational to the main issue in the earlier order.4
21. Hence, such observation can neither be said to have a preclusive effectnor can it be said to have attained finality. It would not be out of context to clarify that the only aspect which attained finality with respect to the first order pertains to the jurisdictional issue concerning invocation of Section 378 of CrPC and nothing beyond that.
22. In light of the aforesaid discussion, we consider that the High Court was not correct in dismissing the case on the threshold without holding a full-fledged enquiry into the issues raised thereunder. Accordingly, weset aside the impugned order passed by the High Court and restore the Criminal Writ Petition No. 3166 of 2012 on the file of the High Court. Further we request the High Court to afford an opportunity of hearing to the parties and dispose of the same on its own merits, expeditiously.
23. Before parting with the case, we make it clear that we have not expressed any opinion on the merits of the case. The appeal is, accordingly, disposed of. Devika Gujral Appeal disposed of. 4 Sri Ramnik Vallabhdas Madhvani and Ors. V. Taraben Pravinlal Madhvani, (2004) 1 SCC 497 (as per S. B. Sinha J. (concurring)). MUNICIPAL CORPORATION OF GREATER MUMBAI v. PANKAJ ARORA (SECRETARY) [N. V. RAMANA, J.]