Sanjay Rajaram Kakade vs State Of Maharashtra And Others
2022 Latest Caselaw 11752 Bom

Citation : 2022 Latest Caselaw 11752 Bom
Judgement Date : 17 November, 2022

Bombay High Court

Sanjay Rajaram Kakade vs State Of Maharashtra And Others on 17 November, 2022

Bench: V. V. Kankanwadi

                                     1



       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  BENCH AT AURANGABAD

                        WRIT PETITION NO.698 OF 2021

                        SANJAY RAJARAM KAKADE
                                VERSUS
                  STATE OF MAHARASHTRA AND OTHERS

Mr. S.R. Sapkal, Advocate for the petitioner;
Mrs. M.A. Deshpande, AGP for respondent no.1
Mr. R.A. Tambe, Advocate for respondent no.2.

                           CORAM : DIPANKAR DATTA, CJ.
                                            AND
                                   SMT. VIBHA KANKANWADI, J.

DATE : NOVEMBER 17, 2022

PC :

1. In this writ petition, dated 21.12.2020, the petitioner seeks the following relief:

"(B) To quash and set aside the orders dated 16.09.2018 passed by the Chief Executive Officer, Zilha Parishad, Aurangabad and order dated 15.7.2009 passed by respondent no.3 by issuing appropriate writ, order or direction as the case may be.

(c) To direct the respondent authorities to refund the amount of Rs.1,90,603/- which is recovered on the basis of order dated 16.09.2008 passed by the Chief Executive Officer, Zilha Parishad, Aurangabad and order dated 15.07.2009 passed by respondent no.3.

(D) To hold and declare that the petitioner is entitled for benefits of time bound promotional pay scale from 15.03.2005 by issuing appropriate writ, order or direction as the case may be."

2. Preliminary objection to the maintainability of the writ

petition is raised by Mr. Tambe, learned advocate for the

respondent no.2. According to him, the writ petition suffers

from gross delay and laches. Additionally, it is contended by

him that no relief can be claimed by the petitioner against the

order dated 16.09.2008 since the petitioner did not challenge

the same in a previous round of litigation that he had initiated

before this Court by instituting Writ Petition No. 7098 of 2018,

which stands partly allowed by a judgment and order dated

22.03.2019 of this Court. In Writ Petition No.7098 of 2018, a

subsequent order of recovery dated 12.04.2018 was made the

subject-matter of challenge and the petitioner was granted

relief on terms that the Zilla Parishad, Aurangabad is restrained

from making recovery of actual excess payment wrongfully

made to the petitioner by virtue of grant of time bound

promotion scale before the date he was in fact entitled thereto.

3. As can be noticed from the prayers quoted above, an

amount of Rs.1,90,603/- directed to be recovered from the

petitioner by the order dated 16.09.2008 has already been

recovered. We are informed that such recovery took place in

2011.

4. Although there was a subsequent order of recovery dated

12.04.2018, which was made the subject matter of challenge in

Writ Petition No.7098 of 2018, the order dated 16.09.2008

impugned in this writ petition was neither challenged nor any

order was sought by the petitioner from the Court seeking

refund of the amount of Rs.1,90,603/- recovered from him. We

are of the considered opinion that the relief now claimed by the

petitioner, apart from being grossly delayed bordering on

laches, is barred by res judicata and/or analogous principles.

We may profitably refer to the decision of the Supreme Court

reported in (1986) 1 SCC 100 [Forward Construction

Company and others vs. Prabhat Mandal (Regd.) and

others], wherein the principle of constructive res judicata

under Explanation IV, Section 11 of the Code of Civil Procedure

has been succinctly expressed in the following words: -

"20. So far as the first reason is concerned, the High Court in our opinion was not right in holding that the earlier judgment would not operate as res judicata as one of the grounds taken in the present petition was conspicuous by its absence in the earlier petition. Explanation IV to s.11 C.P.C. provides that any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. 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 to have litigated and have had it decided as incidental to or essentially connected with the subject matter of the litigation and every matter coming with the legitimate purview of the original action both in respect of the matters of claim or defence. The principle underlying Explanation IV 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. It is true that where a matter has been constructively in issue it cannot be said to have been actually heard and decided. It could only be deemed to have been heard and decided. The first reason, therefore, has absolutely no force."

4. In Writ Petition No.7098 of 2018, the petitioner ought to

have challenged the order dated 16.09.2008 also apart from

challenging the order dated 12.04.2018. Not having challenged

the said order in the earlier writ petition, it must be deemed

that the order dated 16.09.2008 was under challenge but the

Court had refrained from granting any relief to the petitioner

qua such order. The petitioner is precluded in law by reason of

Section 11 of the Code of Civil Procedure from raising an

issue/claim which he could have raised in the earlier round of

litigation but did not actually raise; however, the effect of the

law is that the issue/claim is deemed to have been raised and

decided.