INTRODUCTION
“The underlying idea… is that the State with all its resources and power should not be allowed to make repeated repeated attempts to convict an i ndi vidu al f or an al l eged ged off ence, the th er eby subj subj ectin g hi m to embar embar rassme rassment, nt, expense expense and ordeal and compell compell in g hi m to l ive in a contin ui ng state state of of anxi ety and i nsecur nsecur ity, as well well as enh ancin g the poss possibi li ty that even ven though in nocent nocent he may
be found guilty.” 1
-Ju sti ce Bl ack (Gr een v. Un i ted States States )
Section 11 of Civil Procedure Code speaks about the Doctrine of Res Judicata where as explanation IV of Section 11 speaks about the Doctrine of Constructive Res Judicata. The rule of direct res judicate is limited to a matter actually in issue alleged by one party and either denied or admitted by the other party expressly or impliedly. But the rule of constructive res judicata provides that if a plea could have been taken by a party in a proceeding between him and his opponent, he should not be permitted to take that plea against the same party in a subsequent proceeding with reference to the same subject matter. Constructive res judicata is a subset of the doctrine of res judicata. Constructive res judicata sets to bar any claims being raised in a later proceeding if the claim should / ought to have been raised and decided in an earlier proceeding. The doctrine seeks to prevent the determination of claims which were failed to be brought at the appropriate time in earlier proceedings. In this project report we will be discussing about the doctrine of constructive res judicata, statutory provisions regarding it, and important case laws related to the subject.
1
(1957) 355 US 185
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Chapter I MEANING OF CONSTRUCTIVE RES JUDICATA
Res iudicata is the Latin term for "a matter already judged", and refers to the legal doctrine meant to bar continued litigation of cases that have already been decided between the same parties. The doctrine of res judicata is based on three maxims:(a) Nemo debet lis vaxari pro eadem causa (no man should be vexed twice for the same cause) (b) Interest republicae ut sit finis litium (it is in the interest of the state that there should be an end to a litigation); and (c) Re judicata pro veritate occipitur (a judicial de cision must be accepted as correct) It is a common law doctrine meant to bar re-litigation of cases between the same parties in Court. Once a final judgment has been handed down in a lawsuit subsequent judges who are confronted with a suit that is identical to or substantially the same as the earlier one will apply res judicata to preserve the effect of the first judgment. This is to prevent injustice to the parties of a case supposedly finished, but perhaps mostly to avoid unnecessary waste of resources in the court system. Res judicata does not merely prevent future judgments from contradicting earlier ones, but also prevents them from multiplying judgments, so a prevailing plaintiff could not recover damages from the defendant twice for the same injury. The rule of direct res judicata is limited to a matter actually in issue alleged by one party and denied by other either expressly or impliedly. But constructive res judicata means that if a plea could have been taken by a party in a proceeding between him and his opponent, and if he fails to take that plea, he cannot be allowed to re-litigate the same matter again upon that plea. In effect, the partly impliedly gives up the right to that plea by not pleading it in the previous suit. This principle is embodied in Explanation IV of Section 11. In a recently reported decision Ramchandra Dagdu Sonavane (Dead) by L.Rs. v. Vithu Hira 2
Mahar (Dead) by LRs. & Ors. , the Supreme Court has explained the doctrine of constructive res
2
AIR 2010 SC 818
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judicata as applicable in Indian law. A sub-set of the doctrine of res judicata, emanating from Section 11 of the Code of Civil Procedure, the doctrine of constructive res judicata sets to naught any claims being raised in a subsequent proceeding where in an earlier proceeding such claim should / ought to have been raised and decided. A rule of prudence, thus, the doctrine seeks to bar determination and enforcement of claims which have not been raised at an appropriate juncture in judicial proceedings. The Supreme Court explained the meaning and ambit of the doctrine of constructive res judicata 3
in Workmen of Cochin Port Trust v. Board of Trustees of Cochin as under; “It is well known that the doctrine of res- judicata is codified in Section 11 of the Code of Civil Procedure. Section 11 generally comes into play in relation to civil suits. But apart from the codified law, the doctrine of res-judicata or the principle of the res-judicata has been applied since long in various other kinds of proceedings and situations by courts in England, India and other countries. The rule of constructive res-judicata is engrafted in Explanation IV of Section 11 of the Code of Civil Procedure and in many other situations also Principles not only of direct res-judicata but of constructive res-judicata are also applied, if by any judgment or order any matter in issue has been directly and explicitly decided, the decision operates as res-judicata and bars the trial of an identical issue in a subsequent proceedings between the same parties. The Principle of res judicata comes into play when by judgment and order a decision of a particular issue is implicit in it, that is, it must be deemed to have been necessarily decided by implications even then the Principle of res judicata on that issue is directly applicable. When any matter which might and ought to have been made a ground of defence or attack in a former proceeding but was not so made, then such a matter in the eye of law, to avoid multiplicity of litigation and to bring about finality in it, is deemed to have been constructively in issue and, therefore, is taken as decided.”
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In Swamy Atmandanda vs. Sri Ramakrishna, Tapovanam it was held by this court : “The object and purport of the principle of res judicata as contended in Section 11 of the Code of Civil Procedure is to uphold the rule of conclusiveness of judgment, as to the points decided earlier of fact, or of law, or of fact and law, in every subsequent suit between the same parties. Once the matter which was the subject-matter of lis stood determined by a competent court, no party thereafter can be permitted to reopen it in a subsequent litigation. Such a rule was brought into the statute-book with a view to bring the litigation to an end so that the other side may not be put to harassment. The principle of res judicata envisages that a judgment of a court of concurrent jurisdiction directly upon a point would create a bar as regards a plea, between the same parties in some other matter in another court, where the said plea seeks to raise afresh the very point that was determined in the earlier judgment.” 3
AIR 1978 SC 1283 (2005) 10 SCC 51
4
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When the material issue has been tried and determined between the same parties in a proper suit by a competent court as to the status of one of them in relation to the other, it cannot be again tried in another suit between them as laid down in Krishna Behari Roy vs. Bunwari Lal 5
Roy reported in which is followed by this Court in the case of Ishwar Dutt Vs. Land Acquisition 6
Collector & Anr. , wherein the doctrine of `cause of action estoppel‟ and `issue estoppel‟ has been discussed. It is laid down by this Court, that if there is an issue between the parties that is decided, the same would operate as a res-judicata between the same parties in the subsequent 7
proceedings. This court in the case of Isher Singh vs. Sarwan Singh has observed : “We thus reach the position that in the former suit the heirship of the respondents to Jati deceased (a) was in terms raised by the pleadings, (b) that an issue was framed in regard to it by the trial Judge, (c) that evidence was led by the parties on that point directed towards this issue, (d) a finding was recorded on it by the appellate court, and (e) that on the proper construction of the pleadings it would have been necessary to decide the issue in order to properly and completely decide all the points arising in the case to grant relief to the plaintiff. We thus find that every one of the conditions necessary to satisfy the test as to the applicability of Section 11 of the Civil Procedure Code is satisfied.”
Reference may also be made to the decision of this court in the case of Sulochana Amma vs. 8
Narayanan Nair on the issue between the same parties or persons under whom they claim title or litigating under the same title, it operates as a res-judicata. A plea decided even in suit for injunction touching the title between the same parties, would operate as res judicata : “It is a settled law that in a suit for injunction when title is in issue, for the purpose of granting injunction the issue directly and substantially arises in that suit between the parties. When the same is put in issue in a later suit based on title between the same parties or their privies in a subsequent suit, the decree in injunction suit equally operates as a res judicata.”
5
1875 ILR (IC-144) (2005) 7 SCC 190 7 AIR 1965 SC 948 8 (1994) 2 SCC 14 Para 9 6
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Chapter II EXPLAINATION IV OF SECTION 11 OF CIVIL PROCEDURE CODE
Section 11 of CPC reads: “No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.”
Explanation IV of CPC reads :
“Any matter which might and ought to have been made gr ound of defense or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.”
Explanation IV to Section 11 says
“any matter which might or ought to have been made a ground of defence or attack in the former suit shall be deemed to have been a matter constructively in issue in that suit.” Thus, if a matter which might and ought to have been raised by the plaintiff in the former suit is not raised by him there he would be estopped from raising the same question in a subsequent suit between the same parties. Similarly, where a defendant did not raise all the objections which he might and ought to have raised in the former litigation in controverting the plaintiffs claim, he will be barred from raising them in a subsequent suit between the same parties. Where a matter has been actually in issue in a former suit between the same parties, litigating under the same title, in a court competent to try such subsequent suit, it must have been heard and decided for the purpose of constituting res judicata but where a matter has been constructively in issue it could not from the very nature of things be heard and decided.
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Nevertheless it will be deemed to have been heard and decided against the party omitting to allege it, provided the conditions of res judicata are complied with. The plaintiff is precluded from raising in the subsequent suit the grounds of attack he might and ought to have raised in the former suit. Illustration-
A, a Hindu, dies leaving a widow. The widow makes a gift to her brother B of certain property belonging to A. After the death of the widow, C alleging that he and A were members of a joint Hindu family sues B for a declaration of his title to the property by right of survivorship. The suit fails on the finding that A and C were separate. C cannot subsequently sue B to recover the same property on the ground that he was the nearest reversionary heir of A because C might and ought to have set up in the former suit both the capacities under which he claimed to be entitled to the property. The general rule is that if a matter could have been set up as ground of attack or defence in the alternative in the former suit, and if its introduction into that suit was necessary for a complete and final decision of the right claimed by the plaintiff therein, it will be deemed to be a matter which ought to have been made a ground of attack or defence in that suit, unless the matters in that and the subsequent suit are so dissimilar that there union might lead to confusion. An adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had it decided as incidental to or essentially connected with the subject-matter of the litigation and every matter coming within the legitimate purview of the original action both in respect of the matters of claim or defence. It is true that where a matter has been constructively in issue it cannot be said to have been actually heard and decided. It could only be deemed to have been heard and 9
decided. In Forward Construction Co. & Ors. v. Prabhat Mandal (Regd.) Andheri & Ors. It was said that the judgment of the High Court in the earlier writ petition would operate as res judicata even where one of the grounds taken in the subsequent writ petition before the High Court was absent in the earlier petition.
9
(1986) 1 S.C.C. 100
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Chapter III ESSENTIALS OF RES JUDICATA CONSTITUTING CONSTRUCTIVE RES JUDICATA
The essentials for the applicability of the doctrine of res Judicata have been well summarised by 10
Sir William De Gray in the leading case of the Duchess of Kingston (1) That of a court of competent jurisdiction; (2) Directly speaking upon the matter in question in the subsequent suit; and (3) Between the same parties. Otherwise even the general principle of res Judicata will not apply.
Directly and substantially in issue:
The matter directly and substantially in issue in the subsequent suit must be the same matter which was directly and substantially in issue, either actually or constructively, in the former suit. The word „suit‟ has not been defined in the Code but is understood to embrace any proceeding in a court of law by which an individual pursues that remedy which the law allows him. It is the matter in issue directly and substantially, either actually or constructively, and not the subject-matter that forms the test of res Judicata. If the causes of action in the two suits are different, the matter in issue in them will not be the same and hence the decision in the former suit cannot operate as res Judicata. The words „directly and substantially in issue‟ in section 11, C.P.C. are not confined to the relief granted in the former suit or to the property which was its subject-matter. The words in section 11 also clearly imply that the decision on a matter not essential for the relief finally granted in the former suit or which did not form one of the decisions cannot be said to have been directly or substantially in issue in the former case. 10
(1776) 1 Leach 146, E. Anthon Smith, Smith’s Leading Cases; E. A. Smith & Co., 11th Edition, p. 731
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Collaterally or incidentally in issue:
The expression “collaterally or incidentally in issue” means only ancillary to the direct and substantial issue and refers to a matter in respect of which no relief is claimed but which is put in issue to enable the court to adjudicate upon the matter which is directly and substantially in issue. Collateral and incidental issues are auxiliary issues, while direct and substantial issues are the principal ones. It is only those matters which are directly and substantially in issue that constitute res Judicata and not the matters which are in issue only collaterally or incidentally. The matter would be directly and substantially in issue if the issue was decided and judgment was, in fact, based upon that decision. Otherwise it would be a matter collaterally or incidentall y in issue. Constructively in issue —”Might” and “Ought”:
The matter directly and substantially in issue may either be actually in issue or constructively in issue, and both the matters constitute res Judicata if the same were in issue in the former suit and are also in issue in the subsequent suit. A matter is actually in issue when it is alleged by one party and denied by the other. It is constructively in issue when the matter might or ought to have been made a ground of attack or defence in the former suit. Explanation IV to section 11 says that any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. It may, therefore, happen that a matter though not actually in issue directly and substantially may nevertheless be regarded as having been in issue in a suit when the same might and ought to have been made a ground of attack or defence. The test is whether the parties had an opportunity of controverting it and, if they had, the matter will be treated as actually controverted and decided. When the matter is actually in issue the same is heard and decided, but when it is constructively in issue from its very nature it could not be heard and decided for this was a matter which might and ought to have been made a ground of attack or defence in the suit.
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Nevertheless it will be deemed to have been heard and decided against the party omitting to allege it, provided the other conditions of res Judicata are complied with and the plaintiff is precluded from raising in the subsequent suit the grounds of attack he might and ought to have raised in former suit. It is no answer to a plea of res Judicata that an argument which could be advanced was not advanced in the previous suit. And where an argument was open to the party, the fact that he did not advance it would not remove the bar of res Judicata, if it is otherwise binding. Failure to put forward an alternative ground of the right to inherit operates as res Judicata. But failure to raise an alternative plea, which is inconsistent with the main plea, would not operate as res Judicata. Where, however, a suit was dismissed on the plea of limitation and was not finally decided on merits, a subsequent suit in which the same pleas are raised is not barred by the rule of res Judicata. Doctrine of might and ought:
Where plea as to on bar of limitation is not raised in writ petition challengin g the land acquisition the doctrine of „might and ought‟ comes into play and appellant is debarred to raise controversy once over due to doctrine of constructive res Judicata. The words „might‟ and „ought‟ have wide amplitude. The word „might‟ conveys the idea of possibility of joining all grounds of attack or defence; „ought‟ carries the idea of propriety of so joining. The theory of res Judicata is based on the doctrine that no party should be vexed again over the same cause. An alternative basis on which a claim can be sustained should be set up in any suit to enforce the claim. When it is not set up, the basis omitted in the prior suit should not be allowed to sustain the second suit. Though a plea might have been set up by the plaintiff in the former suit the answer to the question whether he ought to have set up such a plea in the alternative in the suit would vary on the facts of each case. No hard and fast rule can be laid down. But at the same time, though no definite rule can be laid down on the point, it is now well settled that where the matters are so dissimilar that their union might lead to confusion, the plea ought not to be set up.
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Pleas that would make the suit bad for multifariousness or would embarrass the trial thereof and the pleas, the evidence in support of which is such that it might be destructive of the other pleas, come within the expression „where matters are so dissimilar that their union might lead to confusion‟. The general rule is that if a matter could have been set up as a ground of attack or defence in the alternative in the former suit, and if its introduction into that suit was necessary for a complete and final decision of the right claimed by the plaintiff therein, it will be deemed to be a matter which ought to have been made a ground of attack or defence in that suit, unless the matters in that and the subsequent suit are so dissimilar that their union might lead to confusion. The rule of constructive res Judicata would not apply to a point which the court may or may not decide in its discretion. In order that the rule of „might and ought‟ may apply it is not only necessary that the defendant could have raised defence in reply to the former suit, but it must also be shown that he was bound to do so. The correct principle is that if the decree made in the earlier suit is such that it would be inconsistent with the plea which might and ought to have been raised, but not actually raised, it must be taken that there has been, for the purpose of res Judicata, a final decision by necessary implication. When no finding was given on an issue in the previous suit judgment therein cannot operate as res Judicata in a subsequent suit, on the ground that the finding must be assumed to have been given as an inference. Explanation IV to section 11, C.P.C., would be of no assistance in such a case. The doctrine of constructive res Judicata is not applicable in the absence of adjudication between parties. 11
In State of Uttar Pradesh v. Nawab Hussain
the petitioner was dismissed from service. He
filed a writ petition for quashing the disciplinary proceeding 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. The petition was dismissed. Thereafter he filed a suit in which he challenged the order of 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 Article 311(1) of the Constitution.
11
AIR 1969 All 466
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It was an important plea which was within the knowledge of the respondent and could well have been taken in the writ petition, 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, therefore, 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 of constructive res Judicata. On the principle of the constructive res Judicata an objection to the territorial jurisdiction of the court in the previous suit, which might or ought to have been raised therein, must be deemed to have been heard and decided in favour of the existence of jurisdiction and the party which chooses not to raise the issue in defence is precluded from raising it in a subsequent petition between the same parties. Where a matter has been constructively in issue so as to bring it under Explanation 4 to section 11, it could not, from the very nature of the case, be heard and decided and it will be deemed to be heard and decided against the party who might and ought to have alleged it. Applicability of constructive res Judicata: 12
In Abdul Rahman v. Prasony Bai where the land was allotted to a displaced person who was treated as escheat had allotted to appellant. Allotment was concealed at the behest of daughter of displaced person by Revenue Authorities. Such cancellation had attained finality by mutation of disputed land in favour of respondent-daughter of displaced person. Held, that subsequent suit by appellant for declaration that respondent was not daughter of displaced person and that appellant was in adverse possession and injunction was barred by res judicata. The question whether land in dispute could be allotted depended on whether the displaced person had died heirless. Such question could have been raised before the Revenue Authorities and decided by them. As it was not raised before the Revenue Authorities, it would be barred by principle of constructive res judicata. Plea of adverse possession was also not tenable when appellant admitted to be tenant of displaced person.
12
2002 (2) WLC 488
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Chapter IV CONSTRUCTIVE RES JUDICATA AND OTHER PRINCIPLES
Constructive Res Judicata and Subsequent New Principle 13
In Nand Kishore v. State of Punjab The appellant was compulsorily retired from service on January 6, 1961, after ten years of service. His writ petition impugning the order of compulsory retirement was also dismissed by the High Court. Subsequently in 1964 in view of the decision 14
of the Supreme Court in Moti Ram Deka and others v. N.E. Frontier Railway and others, holding that the right to retire any Government servant after he had completed 10 years qualifying service without giving any reason and the government servant any right to claim special compensation on that account could not be exercised by the Government except when it was in public interest to dispense with further services of a Government servant, such as on account of inefficiency, dishonesty, corruption or infamous conduct, the appellant filed a suit and challenged the rule of the Punjab Civil Service Rules and pleaded that since it was invalid he be treated to have continued in service. The Supreme Court held that the decision of the High Court declining to issue a writ of mandamus on the assumption that a statutory rule was valid, operated as res judicata in a subsequent suit instituted after the statutory rule had been declared as unconstitutional by the Supreme Court of India was not valid and was not res judicata. The Court held that the Supreme Court is a competent authority to alter the law when it declared it to be unconstitutional. Alteration does not limit alone to change therein but is inclusive of the power of striking down. Thus even if, the Supreme Court observed, we were to decline the belated special leave petition of the appellant against the judgment and order of the High Court dated 5.2.1962 passed in writ application, the appellant would be entitled to succeed in having the impugned order of the High Court upset in civil appeal, for the suit of the appellant could not in any event be held to be barred by the principles of res judicata. 13
1995 SCC (6) 614 1964 SCR (5) 683
14
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Accordingly their lordships while allowing the appeals set aside the judgments and orders of the High Court holding that the order of compulsory retirement of the appellant under the relevant rule of the Punjab Civil Service Rules was void and inoperative and the appellant was entitled to the meaningful relief of arrears, etc. as claimed by him in the plaint and in accordance with the judgment of the trial court. Estoppel and Constructive res judicata: 15
In Gorakh v. The Sub-divisional Officer Name of a person as a tenant was deleted by compromise between parties and order became final. Subsequently Tahsildar cannot declare him tenant. In earlier proceedings the question, whether the said person was tenant or not was directly in issue and which was finally adjudicated by the competent authority, holding against the person. The said order was appealable but no appeal was preferred. The issue became final. The parties are estopped from raising such an issue both on the principle of estoppel and constructive res judicata. 16
In R N Sharma v. B M Gupta the petitioner, who was reinstated in service, filed writ petition for payment of arrears of salary. Directions were i ssued in favour of the petitioner for pa yment of arrears and which became final. Subsequent petition for interest on payment of interest is barred by the principles of constructive res judicata and the provisions of Order 2, Rule 2, C.P.C. 17
In Prithvichand Ramchand Sablok v. S Y Shinde there was a suit for ejectment decree for eviction was granted on the basis of a compromise. The executing court rejected the objections about non-executability of compromise decree. This plea cannot be raised in revision before High Court as it is barred by constructive res judicata.
15
th
29 September 2011, J. S. S. Shinde 16 ANR (2007) SC 342 17 1993 SCR (3) 729
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CONCLUSION The doctrine of res judicata lays down that no Court shall try any suit or issue, in which the matter is directly and substantially in issue, has been finally decided by a competent Court in a former suit between the same parties litigating under the same title . Res judicata deals with the matter which is directly and substantially in issue. But circumstances may arise when the matter is constructively in issue. It may happen that in the former suit the plaintiff or defendant could take a ground of attack or defence but did not do it and being failed in the former suit they again come with a new ground of attack or defence . This taking of new ground of attack or defence , subsequently , is barred by constructive resjudicata , on the ground that he ought to have taken this ground of defence or attack in the former suit . The constructive res judicata deems, in that event, that the matter was directly and substantially in issue in the former suit. The scope of constructive res judicata , therefore , is more wide that resjudicata . Different case laws has made it very clear that constructive res judicata is a very important doctrine. It bars the multiplicity of cases as well as decisions which, in India, is also important because there are already a huge amount of burden of cases is on the shoulders of judiciary. It also protects the parties from getting exploited and pulled into case proceedings for the same matter which has already been decided.
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