Full Judgment Text
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PETITIONER:
COMMISSIONER OF INCOME TAX, BOMBAY
Vs.
RESPONDENT:
T.P. KUMARAN
DATE OF JUDGMENT: 16/08/1996
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
G.B. PATTANAIK (J)
CITATION:
JT 1996 (8) 98
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
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 Income-tax 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 reinstated. Since the arrears were not paid, he
filed a writ petition in the High Court. The High Court by
order 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 TV, 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 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 set and, therefore,
it operates as res 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.