PETITIONER:
STATE OF UTTAR PRADESH
Vs.
RESPONDENT:
NAWAB HUSSAIN
DATE OF JUDGMENT04/04/1977
BENCH:
SHINGAL, P.N.
CHANDRACHUD, Y.V.
GOSWAMI, P.K.
CITATION:
1977 AIR 1680 1977 SCR (3) 428
1977 SCC (2) 806
ACT
Constructive res Judicata--Matter which might or ought
to have been raised in an earlier proceeding not raised--If
principle of constructive res judicata applicable.
HEADNOTE
In a writ petition filed under Art. 226 of the Constitu-
tion impugning his dismissal from service, the respondent
contended that since he had not been given a reasonable
opportunity of meeting the allegations against him, his
dismissal was void. The. writ petition was dismissed.
Thereupon, the respondent flied a suit in a civil court
challenging his dismissal on the ground, among others, that
since he had been appointed by the Inspector-General of Po-
lice, his dismissal by the Deputy Inspector General of
Police was wrong. The State took the plea that the suit was
barred by res-judicata. Dismissing the suit, the trial
court held that it was not barred by res-judicata. The
first appellate court dismissed the respondent’s appeal.
Purporting to follow a line of decisions of this Court, the
High Court held that only that issue between the parties
would be res-judicata which was raised in the earlier writ
petition and was decided by the High Court after contest and
since in this case the respondent did not raise in the
earlier writ petition the plea of competence of the Deputy
Inspector General of Police to dismiss him. the parties were
never at issue on it and that the High Court never consid-
ered and decided this issue in the writ petition. On the
question of invoking the principle of constructive res-
judicata by a party to the subsequent suit on the ground
that the matter might or ought to have been raised in the
earlier proceedings, the High Court held that this question
was left open by the Supreme Court in Gulabchand Chhotalal
Parikh v. State of Bombay [1965] 2 SCR 547, and allowed the
respondent’s appeal.
Allowing the States appeal to this Court.
HELD: The High Court was wrong in its view because the
law in regard to the applicability of the principle of
constructive res-judicata having been clearly laid down in
Devi Lal Modi v. Sales Tax Officer Ratlam and Others
[1965] 1 S.C.R. 686 it was not necessary to reiterate it in
Gulabchand’s case as it did not arise for consideration in
that case. The clarificatory observation in Gulabchand’s
case was misunderstood by the High Court in observing that
the matter had been left open by this Court. .[435 G]
1. The doctrine of res-judicata is based on two theo-
ries: (i) the finality and conclusiveness of judicial deci-
sions for the final termination of disputes in the general
interest of the community as a matter of public policy, and
(ii) the interest of the individual that he should be pro-
tected from multiplication of litigation. [430 D]
2. (a) In certain cases, the same set of facts may give
rise to two or more causes of action. In such cases res-
judicata is not confined to the issues which the Court is
actually asked to decide but covers issues or facts which
are so clearly part of the subject matter of the litigation
and so clearly could have been raised that it would be an
abuse of the process of the court to allow a new proceeding
to be started in respect of them. This rule has sometimes
been referred to as constructive res-judicata which is an
aspect or amplification of the general principle. [431 A]
(b) Section 11 of the Code of Civil Procedure, with its
six explanations, covers almost the whole field, but the
section has, in terms, no application to a petition for the
issue of a high prerogative writ. [431 D]
(c) Although in the Amalgamated Coalfields Ltd. and
others v. Janapada Sabha, [1962] 1 S.C.R. 1 this Court held
that constructive res-judicata being a special and artifi-
cial form of res-judicata should not generally be applied to
writ petitions, in Devilat Modi’s this Court held that if
the doctrine of constructive
429
res-judicata was not applied to writ proceedings, it would
be open to a party to take one proceeding after another and
urge new grounds every time, which was plainly inconsistent
with considerations of public policy. The principle of
constructive res-judicata was, therefore, held applicable to
writ petitions as well.
[433 G & 434 D]
3. The High Court missed the significance of these deci-
sions and relied upon L. Jankirama lyer and ’Others v.P.M.
Nilakanta lyer and Others [1962] Supp. 1 S.C.R. 206 which
had no bearing on the controversy. In Gulabchand’s case,
this Court observed that it did not consider it necessary to
examine whether the principle of constructive res-judicata
could be invoked by a party to the subsequent suit oft the
ground that a matter which might or ought to have been
raised in the earlier proceeding but was not so raised
therein could be raised again relying on which the High
COurt concluded that the question was left open by this
Court. This in turn led the High Court to hold that the
principle of resjudicata could not be made applicable to a
writ petition. [435 E-F]
In the instant case, the respondent did not raise the
plea that he could not be dismissed by the Deputy Inspector
General of Police. This was an important plea which was
within his knowledge and could well have been taken in the
writ petition. Instead he raised the plea that he was not
afforded a reasonable opportunity of meeting the case in the
departmental inquiry. It was therefore not permissible for
him to take in the subsequent suit the plea that he had been
dismissed by an authority subordinate to that by which he
was appointed. That was clearly barred by the principle of
constructive res-judicata and the High Court erred in taking
a contrary view. [436 A-B]
JUDGMENT
CIVIL APPELLATE JURISDICTION:CiVil Appeal No. 2339 of 1968.
(Appeal by Special Leave fro.m the Judgment and Order
dated the 27-3-1968 of the Allahabad High Court in Second
Appeal No. 2352 of 1963).
G.N. Dikshit, and O.P. Rana, for the appellant.
E.C. Agrawala, for the respondent.
The Judgment of the Court was delivered by
SHINGHAAL, J. Respondent Nawab Hussain was a confirmed
SUbInspector of Police in Uttar Pradesh. An anonymous
complaint was made against him and was investigated by
Inspector Suraj Singh who submitted his report to the Super-
intendent of Police on February 25, 1954. Two cases were
registered against him under the Prevention of Corruption
Act and the Penal Code. They were also investigated by
Inspector Suraj Singh, and the respondent was dismissed from
service by an order of the Deputy Inspector General of
Police dated December 20,1954. He filed an appeal, but it
was dismissed on April 17, 1956. He; then filed a writ
petition in the Allahabad High Court for quashing the disci-
plinary proceedings on the ground that he was not afforded a
reasonable opportunity to meet the allegations against him
and the action taken against him was mala fide. It was
dismissed on October 30, 1959,’ The respondent then filed a
suit in the court of Civil Judge, Etah, on January 7, 1960,
in which he challenged the order of his dismissal on the
ground, inter alia, that he had been appointed by the
Inspector General of Police and that the Deputy Inspector
General of Police was not competent to. dismiss him by
virtue of the provisions of article 311 (1) of the Constitu-
tion. The State of Uttar Pradesh traversed the claim in
the. suit on several grounds, including’ the plea that the
suit was barred by res judicata as "all the matters in issue
in this case had been raised or ought to have been raised
both
430
in the writ petition and special appeal." The trial court
dismissed the suit on July 21, 1960, mainly on the ground
that the Deputy Inspector General of Police would be deemed
to be the plaintiffs appointing authority. It however held
that the suit was not barred by the principle of res judica-
ta. The District Judge upheld the trial court’s judgment
and dismissed the appeal on February 15, 1963. The respond-
ent preferred a second appeal which has been allowed by the
impugned judgment of the High Court dated March 27, 1968,
and the suit has been decreed. The appellant State of Uttar
Pradesh has therefore come up in appeal to this Court by
special leave.
The High Court has taken the view that the suit was not
barred by the principle of constructive res judicata and
that the respondent could not be dismissed by an order of
the Deputy Inspector General of Police .as he had been
appointed by the Inspector General of Police. As we have
reached the conclusion that the High Court committed an
error of law in deciding the objection regarding the bar of
res judicata, it will , not be necessary for us to examine
the other point.
The principle of estoppel per rem judicatam is a rule of
evidence. As has been stated in Marginson v. Blackburn
Borough council,(1) it may be said to be "the broader rule
of evidence which prohibits the reassertion of a cause of
action." This doctrine is based on two theories: (i) the
finality and conclusiveness of judicial decisions for the
final termination of disputes in the general interest of the
community as a matter of public policy, and (ii) the inter-
est of the indidual that he should be protected from multi-
plication of litigation. It therefore serves not only a
public but also a private purpose by obstructing the reopen-
ing of matters which have once been adjudicated upon. It is
thus not permissible to obtain a second judgment for the
same civil relief .on the same cause of action, for other-
wise the spirit of contentiousness may give rise to con-
flicting judgments of equal authority, lead to multiplicity
of actions and bring the administration of justice into
disrepute. It is the cause of action which gives rise to an
action, and that is why it is necessary for the courts to
recognise that a cause of action which results in a judgment
must lose its identity and vitality. and merge in the judg-
ment when pronounced. It cannot therefore survive the
judgment, or give rise to another cause of action on the
same facts. This is what is known as the general principle
of res iudicata.
But it may be that the same set of facts may give rise
to two or more causes of action. If in such a case a person
is allowed to choose and sue upon one cause of action at one
time and to reserve the other for subsequent litigation,
that would aggravate the burden of litigation. Courts have
therefore treated such a course of action as an abuse of its
process and Somervell L.J., has answered it as follows in
Greenhalgh v. -Mallard(2) .--
"I think that on the authorities to
which I will refer it would be accurate to say
that res judicata for this purpose is
(1) [1939] 2 K.B. 426 at p. 437.
(2) [1947] 2 All. E.R. 255 at p, 257.
431
not confined to the issues which the court is
actually asked to decide, but that it covers
issues or facts which are so clearly part of
the subject matter of the litigation and so
clearly could; have been raised that it would
be an abuse of the process of the court to
allow a new proceeding to be started in re-
spect of them."
This is therefore another and an equally necessary and
efficacious aspect of the same principle, for it helps in
raising the bar of res judicata ,by suitably construing the
general principle of subduing a cantankerous litigant. That
is why this other rule has .sometimes been referred to as
constructive res judicata which, in reality, is an aspect or
amplification of the general principle.
These simple but efficacious rules of evidence have been
recognised for long, and it will be enough to refer’ to this
Courts decision in Gulabchand Chhotalal Parikh v. State of
Bombay(1) for the genesis of the doctrine and its develop-
ment over the years culminating in the present section 11 of
the Code of Civil Procedure, 1908. The section, with its
six explanations, covers almost the whole field, and has
admirably served the purpose of the doctrine. But it relates
to suits and former suits, and has, in terms, no direct
application to a petition for the issue of a high preroga-
tive writ. The general principles of res judicata and
,constructive res judicata have however been acted upon in
cases of renewed applications for a writ. Reference in
this connection may be made to Ex Parte Thompson(2). There
A.J. Stephens moved for a rule calling upon the authorities
concerned to show cause why a mandamus should not issue. He
obtained a rule nisi, but it was discharged as it did not
appear that there had been a demand and a refusal. He
applied again saying that there had been a demand and a
refusal since then. Lord Denman C.J., observed that is
Stephens was making an application which had already ’been
refused, on fresh materials, he could not have "the Same
application repeated from time to time" as they had "often
refused rules" on that ground. The same view has been taken
in England in respect of renewed petition for certiorari,
quo warranto and prohibition, and, as we shall show, that is
also the position in this country.
We find that the High Court in this case ’took note of
the decisions this Court in L. Janakimma lyer and others
v.P. M. Nilakanta lyer and others(3), Devilal Modi v.
Sales Tax Officer, Ratlam and others(4) and Gulabchand
Chhotalal Parikh v. State of Bombay (supra) and reached
the following conclusion :--
"On a consideration of the law as laid
down by the Supreme Court in ,the above three
eases I am inclined to. agree with the alter-
native argument of Sri K.C. Saxena, learn-
(1) [1965] 2 S.C.R. 547.
(2) 6 Q.B. 720.
(3) [1962] Supp. 1 S.C.R. 206.
(4) [1965] 1 S.C.R. 686.
432
ed counsel for the plaintiff-appellant, that
the law as declared by the Supreme Court in
regard to the plea of res judicata barring a
subsequent suit on the ground of dismissal of
a. prior writ petition under Article 226 of
the Constitution is that only that issue
between the parties will be res judicata which
was raised in the earlier writ petition and
was decided. by the High Court after contest.
Since no plea questioning the validity of the
dismissal order based on the incompetence. of
the Deputy Inspector General of Police was
raised in the earlier writ petition filed by
the plaintiff in the High Court: under Article
226 of the Constitution and the parties were
never at issue on it and the High Court never
considered or’ decided it. I think it is
competent for the plaintiff to raise such a
plea in the subsequent ’suit and bar of res
judicata will not apply."
We have gone through these cases. Janakirama lyer’s was a
case where the suit which was brought by defendants 1 to 6
was withdrawn during the pendency of the appeal in the High
Court and was dismissed. In the mean time a suit was filed
’in a representative capacity under Order 1 rule 8 C.P.C.
One of the defences there was the plea of res judicata. The
suit was decreed. Appeals were filed against the decree,
but the High Court dismissed them on the ground that there
was no bar of res judicata When the matter came to this
Court it was "fairly conceded" that" in terms section 11 of
the Code of Civil Procedure could not apply because the suit
was filed by the creditors defendants 1 to 6 in their repre-
sentative character and was conducted as a representative
suit, and it could not be said that defendants 1 to 6 who
were plaintiffs in the earlier suit and the creditors who
had brought the subsequent suit were the same parties or
parties who claimed through each other. It was accordingly
held that where section 11 was thus inapplicable,’ it would
not be permissible to rely upon the general doctrine of res
judicata, as the only ground on which res judicata could be
urged in a suit could be the provisions of section 11 and no
other. That was therefore quite a different case’ and the
High Court failed to appreciate that it had no bearing on
the present controversy.
The High Court then proceeded to consider this Court’s
decisions in Devilal Modi’s case (supra) and Gulabchand’s
case (supra). Gulabchand’s was the later of these two cases.
The High Court has interpreted it to mean as follows :--
"It was held that the decision of the
High Court on a writ petition under Article
226 on the merits on a matter after contest
will operate as res-judicata in a subse-
quent regular suit between the same parties
with respect to the same matter. As appears
from the report the above was majority view
of the Court and the question whether the
principles of constructive res-judicata can be
invoked by a party to the subsequent suit on
the ground that a matter which might or ought
to have been raised in the earlier proceedings
was left open. The learned Judges took care
to
433
observe that they made it clear that it was
not necessary and they had not considered that
the principles of constructive res-judicata
could be invoked by a party to the subse-
quent suit on the ground that a matter which
might Or ought to have been raised in the
earlier proceeding was not so raised therein."
As we shall show, that was quite an erroneous view of the
decision of this Court ,on the question of constructive
res-judicata. It will help in appreciating the view of this
Court correctly if we make a brief reference to the. earli-
er’ decisions in Amalgamated Coalfields Ltd. and others v.
Janapada Sabha, Chhindwara(1) and Amalgamated Coalfields
Ltd. and another v. Janapada Sabha, Chhindwara,(2) which was
also a case between the same parties. In the first of these
cases a writ petition was filed to challenge the coal tax
on some grounds. An’ effort was made to canvass an addi-
tional ground, but that was not allowed by this Court and
the writ petitton was dismissed. Another writ petition was
filed to challenge the levy of the tax for the subsequent
periods on grounds distinct and separate from those which
were rejected by this Court. The High Court held that the
writ petition was barred by res-judicata ’because: of the
earlier decision of this Court. The matter came up in
appeal to this Court in the second case. The question which
directly arose for decision was whether the principle of
constructive res judicata was applicable to petitions under
articles 32 and 226 of the Constitution and it was an-
swered as follows,--
"It is significant that the attack
against the validity of the notices in the
present proceedings is based on grounds
different and distinct from the grounds raised
on the earlier occasion. It is not as if the
same ground which was urged on the earlier
occasion is placed before the Court in another
form. The grounds now urged are entirely
distinct, and so, the decision of the High
Court can be upheld only if the principle of
constructive res judicata can be said to apply
to writ petitions filed under Art. 32 or Art.
226. In our opinion, constructive res judica-
ta which is a special and artificial form of
res judicata enacted by section 11 of the
Civil Procedure Code should not generally be
applied to writ petitions field under Art. 32
or Art. ’226. We would be reluctant to apply
this principle to the present appeals all the
more because we are dealing with cases where
the impungned tax liability is for different
years."
It may thus appear that this Court rejected the application
of the principle of constructive res judicata on the ground
that it was a "special and artificial form of res judica-
ta" and should not generally be applied to writ
petitions, .but the matter did not rest there. It again
arose for consideration in Devilal Modi’s case (supra).
Gajendragadkar, J. who had spoken for the court in the
second case of Amalgamated Coalfields Ltd. spoke for the
Court in that case also. The
(1) [1962] 1 S.C.R. 1. (2) [1963]. Supp. 1. S.C.R. 172.
434
petitioner in that case was assessed to sales tax and filed
a writ petition to challenge the assessment. The petition-
was dismissed by the High Court and he came in appeal to
this Court. He sought to make some’ additional contentions
in this Court, but was not permitted to do so.. He. there-
fore filed another writ petition in the High Court raising
,those’ additional contentions and challenged the order of
assessment for the same year. The High Court dismissed the
petition on merits, and the case came up again to this Court
in appeal. The question which specifically arose for consid-
eration was whether the principle of constructive res
judicata was applicable to writ petitions of that kind.
While observing that the rule of constructive res judicata
was "in a sense a somewhat technical or artificial rule
prescribed by the Code of Civil Procedure", this Court
declared the law in the following terms,--
"This rule postulates that if a plea
could have been taken by a party in a proc-
ceding between him and his opponent, he would
not b0 permitted to take that plea against the
same party in a subsequent proceeding which is
based on the same cause of action; but basi-
cally, even this view is founded on the same
considerations of public policy, because if
the doctrine of constructive res judicata is
not applied to writ proceedings, it would be
open. to the party to take one proceeding
after another an urge new grounds every time;
and that plainly is inconsistent with consid-
erations of public policy to which we have
just referred."
While taking that view, Gajendragadkar C.J., tried to ex-
plain earlier decision in Amalgamated Coalfields Ltd. v.
Janapada Sabha, Chhindwara(1) and categorically held that
the principle of constructive res judicata was applicable to
writ petitions also. As has been stated, that case was
brought to the notice of the High Court, but its signifi-
cance appears to have been lost because of the decisions,
in Janakirama Iyer and others v.P.M. Nilakanta lyer (supra)
and Gulabchand’s ease (supra). We have made a reference to
the decision in Janakirama Iyer’s case which has no bearing
on the’ present controversy, and we may refer to the deci-
sion in Gulabchand’s case as well. That was a case where
the question which specifically arose for consideration was
whether a decision of the High Court on merits. on a certain
matter after contest, in a writ petition under article 226
of the Constitution, operates as res judicata in a regular
suit with respect to the same matter between the same par-
ties. After a consideration of the earlier decisions in
England and in this country, Raghubar Dayal J., who spoke
for the majority of this Court, observed as follows,-
These decisions of the Privy Council
well lay down that the provisions of s. 11
C.P.C. are not exhaustive with respect to an
earlier decision in a proceeding operating as
res judicata in a subsequent suit with respect
,to the same matter inter parties, and do not
preclude the. application to regular suits of
the general principles of res judicata based
on public policy’ and applied .from ancient.
times."
(1) [1963] Supp. 1 S.C.R. 172.
435
He made a reference to the decision in Daryao and others v.
The State of U.P. and others(1) on the question of res judi-
cata and the decisions in Amalgamated Coalfields Ltd. and
others v. Janapada Sabha, Chhindwara(2) and Devilal Modi’s
case (supra) and summarised the decision of the Court as
follows :--
"As a result of the above discussion, we
are of opinion that the provisions of s. 11
C.P.C. are not exhaustive with respect to an
earlier decision operating as res judicata
between the same parties on the same matter in
controversy in a subsequent regular suit and
that on the general principle of res judicata,
any previous decision on a matter in contro-
versy, decided after full contest or after
affording fair opportunity to the parties to
prove their case by a Court competent to
decide it, will operate as res judicata in a
subsequent regular suit. It is not necessary
that the Court deciding the matter formerly be
competent to decide the subsequent suit or
that the former proceeding and the subsequent
suit have the same subject matter. The nature
of the former proceeding is immaterial."
He however went on to make the following further observa-
tion,-
"We may make it clear that it was not
necessary, and we have not considered, wheth-
er the principles of constructive res judicata
can be invoked by a party to the subsequent
suit on the ground that a matter which might
or ought to have been raised in the earlier
proceeding was not so, raised therein."
It was this other observation which led the High Court to
take the view that the question whether the principle of
constructive res judicata could be invoked by a party to a
subsequent suit on the ground that a plea which might or
ought to have been raised in the earlier proceeding but was
not so raised therein, was left open. That in turn led the
High Court to the conclusion that the principle of construc-
tive res judicata could not be made applicable to a writ
petition, and that was why it took the view that it was
competent for the plaintiff in this case to. raise an
additional plea in the suit even though it was available to
him in the writ petition which was filed by him earlier but
was not taken. As is obvious, the High Court went wrong
in taking that view because the law in regard to the
applicability of the principle of constructive res judicata
having been clearly laid down in the decision in Devilal
Modi’s case (supra), .it was not necessary to reiterate it
in Gulabchand’s case (supra) as it did not arise for consid-
eration there. The clarificatory observation of this Court
in Gulabchand’s case (supra) was thus misunderstood by the
High Court in observing that the matter had been "left
open"’ by this Court.
It is not in controversy before us that the respondent
did not raise the plea, in the writ petition which had been
filed in the High Court, that by virtue of clause (1) of
article 311 of the Constitution he
(1) [1962] 1 S.C.R. 574. (2) [1963] Supp. 1 S.C.R.172
436
could not be dismissed by the Deputy Inspector General of
Police as he had been appointed by the Inspector General of
Police. It is also not in controversy that that was an
important plea which was within the knowledge of the re-
spondent and could well have been taken in the writ peti-
tion, but he contented himself by raising the other pleas
that he was not afforded a reasonable opportunity to meet
the Case against him in the departmental inquiry and that
the action taken against him was mala fide. It was there-
fore not permissible for him to challenge his dismissal, in
the subsequent suit, on the other ground that ’he had been
dismissed by an authority subordinate to that by which he
was appointed. That was clearly barred by the principle
constructive res judicata and the High Court erred in taking
a contrary view.
The appeal is allowed, the impugned judgment of the High
’Court dated March 27, 1968, is set aside and the respond-
ent’s suit is dismissed. In the circumstances of the case,
we direct that the parties shall pay and bear their own
costs.
P.B.R. Appeal allowed.
436SCI/77--2500--12-10-77 GIPF.
437