Cause title — parties, addresses and appearances
HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
WRIT TAX No. - 533 of 2025
A.F.R.
Court No. - 6
HON'BLE JASPREET SINGH, J.
1. Heard Shri Pradeep Agrawal, learned counsel for the petitioner and
Shri Sanjay Sarin, learned Additional Chief Standing Counsel for the
State-Revenue.
2. Under challenge is the order dated 24.05.2025 passed by the respondent
No.2 for the Assessment Years 2021-22 and 2022-2023 respectively. The
petitioner also prays that the order dated 12.06.2024 passed under Section
74 of the U.P. Goods and Sales Tax Act, 2017 (in short, 'the GST Act')
has been passed without affording an opportunity of hearing, hence, the
same also deserves to be set aside and a further direction has been sought
directing the respondent No.3 not to recover the disputed tax for the
Assessment Years 2021-22 and 2022-23 respectively.
3. Shri Agrawal, learned counsel for the petitioner has submitted that the
impugned orders were passed ex-parte, without notice to the petitioner.
The petitioner assailed the said orders by filing an appeal which was
dismissed on the ground of limitation.
4. Being aggrieved, the petitioner preferred a writ petition bearing Writ-
Tax No.330 of 2024 and the said writ petition was allowed vide order
dated 10.04.2025 by a Coordinate Bench of this Court and the Appellate
Authority was directed to decide the application for condonation of delay
Versus
Counsel for Petitioner(s)
:
Pradeep Agrawal, Amar Mani Tiwari
Counsel for Respondent(s)
:
C.S.C.
M/S Simla Gomti Pan Products Pvt. Ltd. Lko. thru.
Director Megh Raj Singh
.....Petitioner(s)
Commissioner of State Tax U.P. Commissioners
Office Lko. and 2 others
.....Respondent(s)
considering the decisions of the Apex Court.
5. The submission is that the order passed by the Appellate Authority is
clearly vague and without jurisdiction inasmuch as the High Court in Writ
Tax No.330 of 2024 had directed the Appellate Authority to consider and
decide the appeal afresh considering the decisions of the Apex Court in
M.P. Steel Corporation v. Commissioner of Central Excise, (2015) 7
SCC 58 and Suryachakra Power Corporation Limited v. Electricity
Department Represented by Its Superintending Engineer, Port Blair
and others, (2016) 16 SCC 152, but the Appellate Authority dismissed
the appeal on the ground of limitation as well as non-compliance of
Section 107(1)(b) the GST Act. Accordingly, the order of the Appellant
Authority runs contrary to the mandate of this Court, hence, the same
deserves to be set aside.
6. It is further urged that the petitioner had already prayed before the
Appellate Authority that the petitioner was not in a position to make the
pre-deposit and this issue was also considered in the writ petition filed by
the petitioner and in such circumstances, the issue of pre-deposit could
not have been made a ground to dismiss the appeal rather the same should
have been considered on its merit ignoring the delay as provided in the
decisions of the Apex Court in M.P. Steel Corporation (supra) and
Suryachakra Power Corporation Limited (supra).
7. On the other hand, Shri Sarin, learned Additional Chief Standing
Counsel for the State has refuted the aforesaid submissions and has
pointed out that the orders impugned do not suffer from any error. It is
urged by Shri Sarin that the chronology as indicated in the petition is not
what transpired inasmuch as on the first occasion, the petitioner had filed
a writ petition before the Division Bench of this Court bearing Writ-Tax
No.220/2024, which came to be dismissed by means of the order dated
04.09.2024 relegating the petitioner to avail the remedy of appeal.
Thereafter, the petitioner assailed the said order passed by the Division
Bench of this Court dated 04.09.2024 in a Special Leave Petition before
the Hon'ble Apex Court bearing SLP No.25574 of 2024 and the said SLP
was dismissed on 04.11.2024.
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2
8. The petitioner thereafter preferred the regular appeal after dismissal of
his SLP and the same came to be dismissed by the Appellate Authority on
the ground of limitation. This order, whereby the appeal of the petitioner
was dismissed on the ground of limitation was again challenged by the
petitioner before a Coordinate Bench. A Coordinate Bench of this Court
in Writ-Tax No.330 of 2024 allowed the petition directing the Appellate
Authority to consider the appeal of the petitioner taking note of the
dictum of the Apex Court in M.P. Steel Corporation (supra) and
Suryachakra Power Corporation Limited (supra).
9. The Appellate Authority considering the order passed by a Coordinate
Bench of this Court dated 10.04.2025 considered the appeal and found
that it was non-complaint of Section 107(6)(b) of the GST Act and
dismissed the appeal. It is urged that merely pleadings in the petition that
the petitioner does not have the capacity to pay 10% of pre-deposit as
envisaged in the GST Act does not automatically operate as a way
forward for the petitioner to get his appeal heard on merit.
10. It is submitted that at no point of time either when the petitioner had
preferred Writ-Tax No.220 of 2024 before the Division Bench of this
Court or when the petitioner filed Writ Tax No.330 of 2024, the petitioner
did not seek a relief of exemption from making the pre-deposit. The
record would indicate that once the Division Bench of this Court had
declined to interfere by means of the order dated 04.09.2024 and directed
the petitioner to avail the remedy of appeal, it was incumbent upon the
petitioner to have made the pre-deposit with the appeal, however, the
petitioner choose to assail the order of the Division Bench before the
Apex Court which needless to say was dismissed.
11. In this view, the petitioner while preferring the writ petition ought to
have claimed (if permissible in law) exemption from pre-depositing 10%,
however, it was not made. Accordingly, the appeal filed by the petitioner
did not accompany the pre-deposit and not being in accordance with the
provisions, hence, it was dismissed as being time barred. Once again, the
petitioner filed a Writ-Tax No.330 of 2024 knowing fully well that the
appeal had been dismissed on the ground of limitation, the petitioner only
claimed the remedy that his appeal may be heard taking note of the
WTAX No. 533 of 2025
3
decisions of the Apex Court in M.P. Steel Corporation (supra) and
Suryachakra Power Corporation Limited (supra), but never made any
prayer that the petitioner may be exempted from making the pre-deposit.
The said petition was allowed and the matter was remitted to the
Appellate Authority.
12. This time by the impugned orders, the appeal has been dismissed
primarily not on the ground of limitation rather the appeal was dismissed
on the ground that it was non-complaint of Section 107(6)(b) of the GST
Act. Hence, the instant petition has no merit and deserves to be dismissed.
13. The Court has considered the rival submissions and also perused the
material on record.
14. The facts are not disputed between the parties and in order to resolve
the controversy raised by the learned counsel for the parties, certain
timelines are important to be noticed, hereinafter:-
(i) For the first time, the petitioner assailed the order impugned
dated 12.06.2024 relating to the Assessment Years 2021-22
and 2022-23 respectively directly by filing a Writ Tax No.220
of 2024 before the Division Bench of this Court, who by means
of its order dated 04.09.2024 dismissed the petition on the
ground of statutory remedy being available and it reads as
under:-
"Heard learned counsel for the petitioner, learned
Standing Counsel who appears on behalf of the State
– Respondents.
This petition has been filed with the following main
prayers :-
"(i) issue a writ, order or direction in the
nature of writ of certiorari quashing the
impugned orders for the A.Y. 2021-22 &
2022-23 (01.4.2022 to 30.07.2022) dated
12.06.2024 contained in Annexure No.1
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4
& 2 to the writ petition after summoning
the records.
(ii) issue a writ, order or direction in the
nature of writ of mandamus directing the
opposite party no.2 to supply a copy of
the SIB report and the mode of
calculation
including
the
supporting
documents so that show cause notice is
effectively replied.
(iii) Issue a writ, order or direction in the
nature of writ of mandamus directing the
opposite party no.2 to provide sufficient
time for preparation of the reply to the
show cause notice and also provide
personal hearing before completion of
adjudication proceedings."
It is the case of the petitioner that adjudication
proceedings for the assessment year 2021-2022,
2022-2023 were taken ex-parte against the petitioner
as the petitioner was not given any report of the SIB
which the petitioner has specific plea requested by
his letter dated 30.4.2024.
Since relevant documents for replying to the show
cause notice were not supplied to the petitioner he
was handicapped and prejudiced. It has been stated
in the impugned order that the petitioner was
informed by letter dated 11.5.2024 on the portal to
collect the copies of the SIB report from the office
of opposite party no.2 and to submit his reply by
10.6.2024, however, such letter dated 11.5.2024 was
posted at wrong section of portal and as such it
could not be seen by the petitioner.
The petitioner having been denied opportunity of
WTAX No. 533 of 2025
5
hearing the order impugned are vitiated and
therefore liable to be set aside.
The counsel appearing on behalf of the State-
respondent has pointed out that the petitioner has not
said that the adjournment letter dated 11.5.2024 by
which he was informed that he may approach the
office of opposite party no.2 till 31.5.2024 and
obtain a copy of the SIB report and other relevant
documents and then submit his reply within
10.6.2024 was posted on wrong portal. It is the case
of the petitioner that it was posted on his portal but
on the wrong side, i.e. in the category of additional
notices and orders instead of notices and orders on
the wrong portal.
Learned counsel appearing for the State respondents
has pointed out that the petitioner has statutory
remedy under Section 107 of the State GST Act.
This petition is disposed of with the liberty to the
petitioner to file his appeal within 10 days from
today. If such an appeal is filed the same shall be
considered
on
its
merits
and
decided
as
expeditiously as possible. The petitioner is also at
liberty to approach the office of opposite party no.2
to procure a copy of the SIB report and other
relevant documents relied upon in passing of the
impugned order."
(ii) It is not disputed that the petitioner assailed the order
passed by the Division Bench as noticed above by filing SLP
before the Hon'ble Apex Court, which came to be dismissed by
means of the order dated 04.11.2024.
(iii) The impact of dismissal of the SLP would be that the order
of Division Bench was upheld and it is in furtherance thereof
the petitioner, who was relegated to the Appellate Authority
WTAX No. 533 of 2025
6
filed his appeal before the Appellate Authority on 06.11.2024.
A copy of the memo of appeal has been brought on record as
Annexure No.12 and it is also not in dispute that the appeal
was accompanied by an application seeking condonation of
delay.
(iv) It is also not disputed that for filing an appeal, the
petitioner had to make a pre-deposit in terms of Section
107(6)(b) of the GST Act. It is not disputed and also evident
from the record that the petitioner pleaded in his application
seeking condonation of delay that the appellant/petitioner had
approached the Apex Court against the order passed by the
Division Bench of this Court. It was also stated that due to lack
of funds relating to pre-deposit, the petitioner had approached
the Apex Court with a request to provide an opportunity of
hearing, but the same was rejected on 04.11.2024, hence, the
appellant/petitioner is submitting his appeal without pre-
deposit of 10% of the huge disputed tax, hence, the delay be
condoned and the appeal be heard on merits.
(v) It is also not disputed that despite making this contention,
the appeal of the petitioner was dismissed on the ground of
delay which further prompted the petitioner to file and assail
the order relating to dismissal by filing Writ-Tax No.330 of
2024.
15. Now, in the second round, a Coordinate Bench of this Court vide
order dated 10.04.2025 allowed the Writ Petition No.330 of 2024 and
directed the appellate Authority to consider the appeal as well as
application for condonation of delay in light of the dictum of the Apex
Court in M.P. Steel Corporation (supra) and Suryachakra Power
Corporation Limited (supra).
16. At this very stage, it will be relevant to notice Paragraph 3 to 15 of the
order passed by the Coordinate Bench of this Court dated 10.04.2025 in
Writ Tax No.330 of 2024, which reads as under:-
"3. Contention of learned counsel for the petitioner is that an
WTAX No. 533 of 2025
7
ex-parte order came to be passed by respondent no.3 in
purported exercise of power under Section 74 of the GST Act
vide order dated 12.06.2024. He draws my attention to argue
that even no opportunity of hearing was granted and the
documents which were sought in the form of SIB report, which
were proposed to be relied upon, was never provided to the
petitioner.
4. It is argued that against the said order, the petitioner had
approached this Court by filing a writ petition being Writ Tax
No.220 of 2024, however, the same was disposed off vide
judgment dated 04.09.2024. In the said judgment, it was
observed that in case the petitioner files his reply within a
period of ten days from today, the same shall be considered on
merits and shall be decided as expeditiously as possible.
Further directions for providing the SIB report was also passed.
5. Aggrieved against the said order passed by this Court, the
petitioner approached the Hon'ble Supreme Court by filing
SLP No.25574 of 2024 which came to be dismissed on
04.11.2024. The SLP was dismissed without going on the
merits of the order passed. After the dismissal of the SLP on
04.11.2024, the petitioner preferred the regular appeal under
Section 107 of GST Act on 06.11.2024, however, the same
came to be dismissed by means of the impugned judgment.
6. In the said order, it was also observed that the petitioner has
not deposited the mandatory requirement of 10% of pre-deposit
and it was also noticed that the appeal was beyond limitation
and the delay could not be condoned. The Tribunal also noticed
the order of this Court in the case of M/s A V Construction vs.
Commissioner and Ors.; Writ Tax No.819 of 2021 decided on
30.09.2021 wherein it was held that the principles of Section 5
of Limitation Act would have no application in the face of law
which is a complete code and apart from the quantum of delay
which can be condoned as prescribed under Section 107 of
GST Act, the Tribunal did not have the power to invoke the
WTAX No. 533 of 2025
8
principles of Section 5 of the Limitation Act to condone the
delay.
7. In the light of the said, learned counsel for the petitioner
argues that the petitioner was bonafidely pursuing his remedies
against the assessment order, firstly by filing a writ petition
before this Court and secondly by availing the remedy of SLP
before the Hon'ble Supreme Court, and thus, the petitioner was
entitled to the benefit of Section 14 of the Limitation Act as has
been held in the case of M.P. Steel Corporation vs.
Commissioner of Central Excise; (2015) 7 SCC 58. He further
argues that the order under Section 74 of the GST Act is
wholly arbitrary for the reasons that in the show-cause notice,
there was no assertion/allegation that there exist any material
so as to justify invoking of larger period of limitation under
Section 74. He argues that to invoke the jurisdiction under
Section 74, in contradiction to the powers conferred by Section
73, it is essential that power under Section 74 can only be
invoked when tax is not paid or short paid by reasons of fraud
or any wilful misstatement or suppression of facts. He argues
that there were no allegation, leave alone finding, in the
impugned order to justify invocation of power under Section
74 of the GST Act. He further argues that even the documents
proposed to be relied upon being the SIB report, was never
provided and thus, for all the reasons, the impugned orders
deserve to be quashed.
8. Learned Standing Counsel, based upon instructions and
counter affidavit, argues that the SIB report was directed to be
collected by the assessee, however, he did not do so. It is
further argued that the petitioner has already approached this
Court by filing a writ petition which has been disposed off,
thus, the validity of the order of assessment cannot be seen
again in a subsequent writ petition. He further argues that the
petitioner was granted ten days' time by this Court to file and
avail the remedy of appeal which he chose not to do so and
thus, it is the petitioner who is to be blamed for him not being
WTAX No. 533 of 2025
9
vigilant in pursuing the remedies prescribed under law, as such,
the writ petition should be dismissed.
9. As regards the argument with regard to the applicability of
Section 14 of the Limitation Act, it is argued that the order is
silent on that aspect.
10. Considering the submissions made at the Bar, prima-facie,
the petitioner was bonafidely pursuing his remedy before this
Court as well as before the Supreme Court as is evident from
the two orders passed, and immediately after passing of the
order by the Supreme Court on 04.11.2024, the petitioner
preferred the appeals on 06.11.2024. The period of the
petitioner having spent before the High Court and the Supreme
Court could be pleaded by him to be excused in view of the
mandate of Section 14 of the Limitation Act. This aspect has
not been considered in the impugned orders.
11. Thus, finding the impugned orders dated 11.11.2024 &
23.11.2024 to be improper insofar as it fails to consider the
mandatory prescriptions contained in Section 14 of the
Limitation Act, the orders impugned cannot be sustained and
are quashed.
12. Matter is remanded to the appellate authority to pass orders
afresh after considering the mandate of M.P. Steel Corporation
(supra) and Suryachakra Power Corporation Limited vs.
Electricity Department Represented by Its Superintending
Engineer, Port Blair and Ors.; (2016) 16 SCC 152.
13. The said order shall be passed by the appellate authority
within a period of three weeks.
14. The petitioner would be at liberty to place any other
relevant documents/case-laws that he may think appropriate
before the appellate authority.
15. Present petition stands allowed in above terms."
WTAX No. 533 of 2025
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17. After this order was placed before the appellate Authority, the
appellate Authority vide impugned order, after noticing the facts and the
contentions of the appellant/petitioner found that the directions of the writ
Court vide order dated 10.04.2025 was in respect of the limitation and not
in respect of exemption of pre-deposit of 10%, hence, in absence of pre-
deposit, the appellate Authority dismissed the appeal being not in order.
18. This Court finds that as far as the issue of pre-deposit is concerned,
though the petitioner had taken it as a ground of invoking the writ
jurisdiction of this Court by filing writ petition bearing Writ Tax No.220
of 2024 which was dismissed by relegating the petitioner to approach the
Appellate authority. However, at no point of time, it was ever pressed or a
specific relief was sought by the petitioner to exempt the petitioner from
making the pre-deposit.
19. It is relevant to notice that while the petitioner had assailed the order
of the Division Bench before the Apex Court which was also dismissed.
Thereafter, the petitioner filed an appeal and in his appeal, an application
for seeking condonation of delay was moved which is at running Page
No.254 of the paper-book. What is important is Paragraph 2 to 4 of the
said application, which reads as under:-
"2. That the disputed tax is of so huge amount that the
appellant is unable to deposit 10% of the disputed tax and also
the appellant did not get proper opportunity of hearing of the
show cause notice. Hence the appellant approached Honorable
High for affording an opportunity for hearing against the
notices BUT the Honorable Court rejected the prayer through
Order dated 21.9.2024 by directing the appellant to submit this
appeal BUT due to lack of funds to deposit 10% of the disputed
tax the appellant approached Honorable Supreme court with
request to provide an opportunity for hearing of the case by
order for remand the case to the respondent because the
appellant is unable to deposit 10% of the huge disputed tax
BUT Honorable Court rejected the prayer on date 4.11.2024.
3. That the appellant is submitting this appeal without
WTAX No. 533 of 2025
11
depositing 10% of the heavy and huge disputed tax because the
bank account has also been seized and the business activities
has been shut down due to which the appellant is unable to
deposit any portion of the disputed tax and to deposit 10% is
totally impossible.
4. That if the delay is not condoned and requirement to deposit
10% of the disputed tax is not waived off then the appellant has
to completely shut down the business."
20. In the statement of fact preferred by the petitioner in the memo of
appeal, which is at running Page No.258, Paragraph-3 thereof is relevant,
which reads as under:-
"3. That the main accountant who looks after the accounts and
GST Portal was seriously ill for some time. Hence the
appellant hired another part time accountant to look after the
returns and accounts. The new accountant did not enquire
regularly the GST Portal on which the respondent served the
disputed order. The counsel of the appellant while filing an
appeal against Order U/S 129 finds out that the disputed order
has been served after which the appellant approached to
Honorable High Court for affording an opportunity for hearing
against the notices Issued U/S 74 BUT Honorable High Court
rejected the prayer through order dated 21.9.2024 and directed
to file appeal against the disputed order BUT the appellant is
unable to deposit 10% of the heavy, huge, imaginary and
illegal disputed tax hence the appellant approached to
Honorable Supreme Court with request to provide an
opportunity for hearing of the case by order for remand the
case to the respondent because the appellant is unable to
deposit 10% of the disputed tax as bank account is also seized
by the respondent against the recovery BUT Honorable
Supreme Court rejected the prayer on date 4.11.2024 hence the
appellant is filing this appeal without depositing the required
10% of the disputed tax."
WTAX No. 533 of 2025
12
21. It is clear from the aforesaid averments made by the petitioner that it
was specifically aware that it was required to make a pre-deposit with the
appeal. Though the petitioner had taken grounds that the petitioner did not
have means to make the pre-deposit, hence, it chose to file the writ
petition in the first place which was dismissed and its attempt to assail the
order before the Apex Court also failed.
22. Apparently, the choice of the petitioner to avail the remedy of writ
petition was squarely on the premise that the demand was exorbitant and
the petitioner did not have means to pay and that he was not granted an
opportunity to contest it on merits.
23. This is a clear case with indication that the petitioner had filed the writ
petition in order to avoid making the pre-deposit, hence, the petitioner
was availing the remedy of writ. Once the writ petition was dismissed
naturally, the same issue would have been raised by the petitioner in SLP
which was also dismissed. This gets credence from the fact that after the
dismissal of the SLP, the petitioner had filed the appeal and in his
application seeking condonation of delay as well as statement of fact, the
relevant paragraphs of which have been quoted hereinabove, would reveal
that though the special leave petition was dismissed, yet the petitioner
wanted to seek exemption from making the pre-deposit. No specific
application was moved and even otherwise, once the appeal was
dismissed on the ground of limitation and the petitioner filed the writ
petition before a Coordinate Bench of this Court bearing Writ Tax No.330
of 2024, then in the said petition, the petitioner ought to have claimed all
reliefs which was to be claimed and could not claim it in piecemeal and in
this regard, it would be clear that the petitioner did not claim any remedy
or relief relating to exemption of pre-deposit, while filing the aforesaid
Writ Tax No.330 of 2024.
24. Learned counsel for the petitioner could not dispute the fact that the
relief of exemption of pre-deposit was not claimed in Writ Petition
No.330 of 2024.
25. Even from a perusal of the order dated 10.04.2024, which has been
quoted hereinabove in the earlier part of this judgment, it would reveal
WTAX No. 533 of 2025
13
that the Coordinate Bench of this Court in Para-6 while considering the
chronology of event noticed that the appeal had been dismissed for want
of pre-deposit, yet the direction given while allowing the writ petition was
only in respect of limitation and not on the issue of pre-deposit.
26. This Court finds that the issue of pre-deposit was available to the
petitioner and that was the basic reason why initially the petitioner filed
the writ petition instead of an appeal. The writ Court relegated the
petitioner to avail the remedy of an appeal, however, no attempt was
made by the petitioner to seek any further relief regarding exemption of
pre-deposit. More so, even before the Apex Court, the petitioner, who did
not succeed and was aware that it had no further option but to file the
appeal, yet failed to seek any relief from the Apex Court regarding
exemption of pre-deposit.
27. From the above, it would be clear that this issue was always known to
the petitioner and having failed to take it as a cause first before the
Division Bench of this Court, secondly, at the time when the SLP was
dismissed and even not having prayed for it before the Appellate
Authority by moving a separate application and even when the petitioner
filed Writ Tax No.330 of 2024.
28. In the aforesaid circumstances, this Court is of the clear view that the
petitioner cannot be permitted to file successive writ petitions in respect
of a remedy or relief which was always known and available to the
petitioner but not having claimed and even otherwise if it was taken then
the petitioner ought to have raised all his claim at one place failing which
the principles of Order II Rule 2 CPC are attracted to the detriment of the
petitioner. [See : Sarguja Transport Service v. State Transport
Appellate Tribunal, M.P., Gwalior and others, (1987) 1 SCC 5] and
the petitioner cannot be permitted to raise the said issue later by a
subsequent petition filed under Article 226/227 of the Constitution of
India.
29. There is another way to look at the issue inasmuch as the petitioner
having informed the appellate authority of the fact that it was unable to
make the pre-deposit and the appeal was dismissed on the ground of
WTAX No. 533 of 2025
14
limitation then while preferring the Writ Tax No.330 of 2024, the
petitioner should have raised the said issue and even while a direction was
issued only in respect of the limitation, but there is no direction relating to
exemption of pre-deposit.
30. At this stage, it will be apt to notice the 'Henderson principle' which is
the core of the doctrine of abuse of process and to ensure that litigant does
not indulge in repetitive and vexatious legal challenges. The Apex Court
has explained the same in Celir LLP v. Sumati Prasad Bafna and
others, 2024 SCC OnLine SC 3727 as under:-
"135. The ‘Henderson Principle’ is a foundational doctrine in
common law that addresses the issue of multiplicity in
litigation. It embodies the broader concept of procedural
fairness, abuse of process and judicial efficiency by mandating
that all claims and issues that could and ought to have been
raised in a previous litigation should not be relitigated in
subsequent proceedings. The extended form of res-judicata
more popularly known as ‘Constructive Res Judicata’
contained in Section 11, Explanation VII of the CPC originates
from this principle.
136. In Henderson v. Henderson, [1843] 3 Hare 999, the
English Court of Chancery speaking through Sir James
Wigram, V.C. held that where a given matter becomes the
subject of litigation and the adjudication of a court of
competent jurisdiction, the parties so litigating are required to
bring forward their whole case. Once the litigation has been
adjudicated by a court of competent jurisdiction, the same
parties will not be permitted to reopen the lis in respect of
issues which might have been brought forward as part of the
subject in contest but were not, irrespective of whether the
same was due to any form of negligence, inadvertence,
accident or omission. It was further held, that principle of res
judicata applies not only to points upon which the Court was
called upon by the parties to adjudicate and pronounce a
judgment but to every possible or probable point or issue that
WTAX No. 533 of 2025
15
properly belonged to the subject of litigation and the parties
ought to have brought forward at the time. The relevant
observations read as under:—
“In trying this question I believe I state the rule of
the Court correctly when I say that, where a given
matter becomes the subject of litigation in, and of
adjudication by, a Court of competent jurisdiction,
the Court requires the parties to that litigation to
bring forward their whole case, and will not (except
under special circumstances) permit the same parties
to open the same subject of litigation in respect of
matter which might have been brought forward as
part of the subject in contest, but which was not
brought forward, only because they have, from
negligence, inadvertence, or even accident, omitted
part of their case. The plea of res judicata applies,
except in special cases, not only to points upon
which the Court was actually required by the parties
to form an opinion and pronounce a judgment, but to
every point which properly belonged to the subject
of litigation, and which the parties, exercising
reasonable diligence, might have brought forward at
the time. […]”
(Emphasis supplied)
137. The above proposition of law came to be known as the
‘Henderson Principle’ and underwent significant evolution,
adapting to changing judicial landscapes and procedural
requirements. The House of Lords in Johnson v. Gore Wood &
Co, [2002] 2 A.C. 1, upon examining the ‘Henderson
Principle’ authoritatively approved it with the following
observations:—
(i) Lord Bingham of Cornhill integrated the
principle with the broader doctrine of abuse of
WTAX No. 533 of 2025
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process and held that the bringing of a claim or the
raising of a defence in later proceedings which
ought to have been raised earlier will not always be
hit by this principle, but rather will apply where
such point is sought to be raised as an additional or
collateral attack on a previous decision and the
bringing forth of such ground amounts to misusing
or abusing the process of the court or as a means for
unjust harassment of a party. The relevant
observations read as under:—
“Henderson v. Henderson abuse of
process, as now understood, although
separate and distinct from cause of action
estoppel and issue estoppel, has much in
common with them. The underlying
public interest is the same : that there
should be finality in litigation and that a
party should not be twice vexed in the
same matter. This public interest is
reinforced by the current emphasis on
efficiency and economy in the conduct of
litigation, in the interests of the parties
and the public as a whole. The bringing of
a claim or the raising of a defence in later
proceedings may, without more, amount
to abuse if the court is satisfied (the onus
being on the party alleging abuse) that the
claim or defence should have been raised
in the earlier proceedings if it was to be
raised at all. I would not accept that it is
necessary, before abuse may be found, to
identify any additional element such as a
collateral attack on a previous decision or
some
dishonesty,
but
where
those
elements are present the later proceedings
WTAX No. 533 of 2025
17
will be much more obviously abusive,
and there will rarely be a finding of abuse
unless the later proceeding involves what
the court regards as unjust harassment of
a party. It is, however, wrong to hold that
because a matter could have been raised
in earlier proceedings it should have been,
so as to render the raising of it in later
proceedings necessarily abusive. That is
to adopt too dogmatic an approach to
what should in my opinion be a broad,
merits-based
judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not […]” (Emphasis supplied) (ii) Lord Millett construing the Principle held that it does not belong to the doctrine of res-judicata in the strict sense but rather was analogous to the doctrine, as it goes a step further to encompass even those proceedings that either culminated into a settlement or issues which had never been adjudicated previously in order to protect the process of the court from abuse and the defendant from oppression. The relevant observations read as under:— “As the passages which I have emphasised indicate, Sir James Wigram V-C did not consider that he was laying down a new principle, but rather that he was explaining the true extent of the existing plea of res judicata. Thus he was careful to limit what he was saying to cases which had proceeded to judgment, and not, as in the present case, to an out of court settlement. Later decisions have doubted the correctness of treating the principle as an application of the doctrine of res judicata, while describing it as an extension of the doctrine or analogous to it … But these various defences [res judicata, issue or cause of action estoppel] are all designed to serve the same purpose : to bring finality to litigation and avoid the oppression of subjecting a defendant unnecessarily to successive actions. While the exact relationship between the principle expounded by Sir James Wigram V-C and the defences of res judicata and cause of action and issue estoppel may be obscure, I am inclined to regard it as primarily an ancillary and salutary principle necessary to protect the integrity of those defences and prevent them from being deliberately or inadvertently circumvented. In one respect, however, the principle goes further than the strict doctrine of res judicata or the formulation adopted by Sir James Wigram V-C, for I agree that it is capable of applying even where the first action concluded in a settlement. Here it is necessary to protect the integrity of the settlement and to prevent the defendant from being misled into believing that he was achieving a complete settlement of the matter in dispute when an unsuspected part remained outstanding. However this may be, the difference to which I have drawn attention is of critical importance. It is one thing to refuse to allow a party to relitigate a question which has already been decided; it is quite another to deny him the opportunity of litigating for the first time a question which has not previously been adjudicated upon. This latter (though not the former) is prima facie a denial of the citizen's right of access to the court conferred by the common law and guaranteed by article 6 … While, therefore, the doctrine of res judicata in all its branches may properly be regarded as a rule of substantive law, applicable in all save exceptional circumstances, the doctrine now under consideration can be no more than a procedural rule based on the need to protect the process of the court from abuse and the defendant from oppression […]” (Emphasis supplied)
