of Income Tax, Bombay Vs. T.P. Kumaran  INSC 961 (16 August 1996)
K. Ramaswamy, K.G.B. Pattanaik (J)
JT 1996 (8) 98
O R D
have heard learned counsel for the parties.
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.
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.
appeal is accordingly allowed. No costs.
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