Rule of constructive res judicata is engrafted in explanation IV to section 11 of the Code is an artificial form of res judicata and 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. Its object is to compel the plaintiff or the defendant to put forward all grounds of attack or defence that are available and of which he is aware at the time when the said former suit is file or written statement is submitted. The rule of constructive res judicata was first applied in the State of U.P v. Nawab Hussain AIR 1977 SC 1680.
FACTS
- The respondent, a sub-inspector of Police, was dismissed from service by Deputy Inspector-General of Police on corruption charges.The appeal against dismissal order was dismissed.He then filed a writ petition in the Allahabad High Court quashing the disciplinary proceedings on the ground that he was not offered a reasonable opportunity to meet the allegations against him and the action taken against him was malafide.The writ was also dismissed.
- The respondent then filed a suit in the court of civil judge in which he challenged the dismissal order on the ground that he had been appointed by the sub inspector -General of Police and that DIG was not competent to dismiss him by virtue of Article 311(1) of the Constitution.
- The state of UP traversed the suit on the ground 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 in both in the writ petition and special appeal.”
- The Trial Court dismissed the suit and the District Judge upheld the trial Court’s judgement and dismissed the appeal. The High Court was of the view that the suit was not barred by the principle of constructive res judicata. It was appealed before the Supreme Court.
ISSUES RAISED
(i) Whether the second suit filed by the resplendent was barred by the principle of constructive res judicata on the ground that a plea which might and ought to have been raised in the earlier proceeding but wa not so raised therein and
(ii) Whether the principle of constructive res judicata also applies to the writ petition under Article 32 and 226?
DECISION
Supreme Court allowed the appeal and set aside the judgement of High Court.It observed that:-
“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 finality in it, is deemed to have bee to have been constructively and therefore, is taken as decided.”
The principle of constructive res judicata was an important plea which was within the knowledge of the respondent and could well have been taken in the writ petition, but he contended 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 and 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.
Gajendragadkar J. observed that the rule of constructive res judicata “ in a sense a somewhat technical artificial rule prescribed by the code. This rule postulates that if a plea could have been taken by a party in a proceeding between him and his opponent, he would not be permitted to take that plea against the same party in a subsequent proceeding which is based on the same cause of action. It was categorically held that the principle of constructive res Judicata was applicable to writ petitions also.”
Finally Court held that in this case the respondent ought to have taken all the grounds and that it was an important plea which was within the knowledge of the respondent and could well have been taken in the writ petition.It was therefore, not permissible for him 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.
REFERENCES
[1] https://indiankanoon.org/doc/739415/