The learned advocate on behalf of the State of Madhya Pradesh, at the '1Utset, raised a preliminary objection to the maintainability of this petition because according to him the dismissal of the petition of the detenu by the High Court under Art. 226 operates as res judicata. This contention is opposed to the view c taken by this Court. Ln Ghulam Sarvar v. Union of India and others(!) a Constitution Bench held that the order of the High Court does not operate as res judicata. We are not here concerned with the different reasons given, one by Subbarao, C.J. Hidayatullah, Sikri, and Shelat, JJ. and the other by Bachawat, J. for arriving at this conclusion except to state that the majority was of the view that it does not operate as res judicata as it is not a judgment and also because the principle is inapplicable to a fundamentally lawless order which this Court has to decide on merits. Bachawat, J. while substantially agreeing with this view thought that the order of the High Court is not a judgment and the previous dismissal of such a petition by the High Court is E only one of the matters taken into consideration under 0.35 rr. 3 and 4 of the Supreme Court Rules before issuing a rule nisi. The petitioner, however, would not have a right to move this Court under Art. 32 more than once on the same facts. In Writ Petitions Nos. 227 and 228 of 196:) decided on September 16, 1969, a similar view as that expressed by the majority was expressed, viz., that there is no bar of res judicata to a petition under Art. ' 32 in a case where earlier the High Court had dismissed the petition un~er. Art. 226 .. In view of this legal i)osition, we reject the prelunrnary o!J!iecuon.
