Headnote
The reporters’ summary of the points decided. It is not part of the judgment.
COMMISSIONER OF INCOME TAX, BOMBAY v. T.P. KUMARAN AUGUST 16, 1996
[K. RAMASWAMY AND G.B. PATTANAIK, JJ.] Code of Civil Procedure, 1908 : Section 11. E:xplanation IV-Order 2, Rule 2.
c
Constructive res judicat<r-lncome Tax Officer-Dismissaf-Suit against-Suit decree and plaintiff reinstated in seivice--Writ for payment of aTTears-High Court order for payment of all arrears-Order attaining finality-Subsequently application claiming interest allowed by Tribunaf-Appeal-He/d Tribunal committed gross en-or of law in directing payment of interest-Held claim was ban"ed by constructive res judicata-Even otherwise as no claim was made in the suit the petitioner was prohibited to seek remedy separately.
Judgment
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 11399 of 1996.
From the Judgment and Order dated 16.8.94 of the Central Administrative Tribunal, Ernakulam, in O.A. No .. 2026 of 1993. R.R. Misra, R. Salish and S.N. Terdol for the Appellant.
E.M.S. Anam for the Respondent. The following Order of the Court was delivered : Leave granted.
We have heard learned counsel for the parties. This appeal by special leave arises against an order of the Central Administrative Tribunal, Ernakulam made on 16.8.1994 in OA No. 2026/93. The admitted position is that while the respondent was working as Incometax Officer, he was dismissed from service. He laid a suit against the order of dismissal. The suit came to be decreed and he was consequently
C.l.T. v. T.P. KUMARAN reinstated. Since the. arrears were not paid, he filed a writ petition in the A High Court. The High Court by drder dated August 16, 1982 directed the appellant to pay all the arrears. That order became final. Consequently, arrears came be paid. Then the respondent filed an OA claiming interest at 18% p.a. The Administrative Tribunal in the impugned order directed the payment of interest. Thus, this appeal by special leave.
The Tribunal has committed a gross error of law in directing the payment. The claim is barred by constructive res judicata under Section 11, Explanation IV, CPC which envisages that any matter which might and ought to have been made ground of defence or attack in a former suit, shall be deemed to have been a matter directly and substantially in issue in a C subsequent suit. Hence when the claim was made on earlier occasion, he should have or might have sought and secured decree for interest. He did not seek so and, therefore, it operates as re judicata. Even otherwise, when he filed a suit and specifically did not claim the same, Order 2, Rule 2,' CPC prohibits the petitioner to seek the remedy separately. In either event, the OA is not sustainable. The appeal is accordingly allowed. No costs. T.N.A.
Appeal allowed.