IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 1ST DECEMBER 2009 / 10TH AGRAHAYANA 1931 Ins.APP.No. 76 of 2007(F) ------------------------ IC.64/2004 of EMPLOYEES INSURANCE COURT, ALAPPUZHA .................... APPELLANT/RESPONDENTS ----------------------------------------- 1. THE E.S.I. CORPORATION, PANCHADEEP BHAVAN, N.S.ROUND, THRISSUR - 20. 2. THE RECOVERY OFFICER, E.S.I. CORPORATION, PANCHADEEP BHAVAN, THRISSUR - 20. BY ADV. SRI.P.SANKARANKUTTY NAIR RESPONDENT(S): APPLICANT -------------------------------- PRINCY TRAVELS, NEAR NORTH OVER BRIDGE, ERNAKULAM, KOCHI. REPRESENTED BY ITS MANAGING PARTNER. ADV. SRI.K.P.MEHABOOB SHERIFF FOR R1 THIS INSURANCE APPEALS HAVING BEEN FINALLY HEARD ON 01/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = INS.APPEAL NO. 76 OF 2007 = = = = = = = = = = = = = = = Dated this the 1st day of December, 2009. J U D G M E N T This appeal is preferred against the order of the Employees' Insurance Court, Alappuzha in I.C.64/04. The only point that arises for determination is whether by virtue of the order in I.C.11/93 the applicant is barred by the principles of resjudicata in re-agitating the point. So in order to find out whether the principles of resjudicata applies or not one has to understand whether the matter that was decided in the earlier proceeding was a matter directly and substantially in issue, whether it was between the same parties whether it was taken up for consideration and whether it was finally decided. For the said purpose one has to look into the pleadings in the case, the defence in the case and ultimately the judgment in the case. The said matter has been considered in paragraph 9 of the order of the learned Insurance Judge. Unfortunately the finding of INS.APPEAL NO. 76 OF 2007 -:2:- resjudicata is done by a presumptive methodology which is not acceptable at all. There was no sufficient pleadings or issues before the Court. The Court should have refused to answer a question stating that it would not arise in the light of lack of pleadings in the case. Having taken up the task of deciding the question of resjudicata it should have decided it properly. It has not been done in this case. But I feel that really the question in I.C.11/93 has to be looked into in deciding this case as well. If the principles of resjudicata applies then it prevents the party from approaching the Court for remedial measures on the very same point regarding that finding. Similarly if it is not barred by resjudicata I make it very clear that the E.S.I.Corporation shall not be permitted to raise any other pleadings and it will be over and the finding of the E.I.Court has to be confirmed in that aspect. Therefore for the limited purpose of considering the question whether there is bar of resjudicata or not, the matter is remitted back and I further direct the parties, if they choose to do so, to produce necessary documents and adduce INS.APPEAL NO. 76 OF 2007 -:3:- evidence in support of their contentions for and against the pleading of resjudicata. Thereafter the learned Insurance Judge can decide the matter in accordance with law. The E.I.Court shall fix a date of hearing and give notice to the parties fixing the date of appearance. The Ins. Appeal is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-