# STATE OF UT_TAR PRADESH v. NAWAB HUSSAIN

- **Citation:** [1977] 3 S.C.R. 428
- **Court:** Supreme Court of India
- **Decided:** 1977-04-04
- **Bench:** Y. V. Chandrachud, P. K. Goswami, P. N. Shinghal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-ut-tar-pradesh-v-nawab-hussain-7149
- **Pages:** 9

## Headnote

.
Constr1~ctive res j~di'cata-M~tter which might or ought to have been raised
in a!z earlter proceeding not ra1sed-lf principle of constructive res judicata
applicable.
in a Writ jjeti'tion filed under Art. 226 of the Constitution impugning bis
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 r.espondent
filed a suit in a civil cou~t challenging his dismissal on the ground, among others,
that since he had been appointed by the Inspector-General of Police, his dismissal by the Deputy Inspector Gene-ral of Police was wrong. The State took the
plea that the suit was barred by res-iudicata. Dismissing th~ 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 considered 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 Bo1nbay [19651
2 SCR 547, and allowed the respondent's appeal.
Allowing the State's appeal to this Court,
HELD : The High Court was \Vrong in its vie\V because the la\v 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
G ulabchand'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 theories : (i) the finality and
conclusiveness of judicial decisions for the final termination of <liisputes in the
general interest of the community as a matter of public policy, and (ii) the
interest of the inaividual that he should be protected from multiplication of
litigation.
[430 DJ
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
sometim~_s be!_!l
~ferred to as constructive res·iudicata 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 A1nalr:ama1ed COalfields Ltd. and others v. lanapada
Sabha, [1962] I S.C.R. 1 this Court held that constructive res-iudica!a being a
special and artificial form of res-judicata should n?t generally. be applied to v.:nt
petitions, in Devilal. Modi's this Court held that if the doctrine of constructive
•
u. P. v. NAWAB HUSSAIN (Shinghal, J.)
429
res-judicata was not applied to writ proceedings, it would be open to a party to
take one procee'ding after another and urge new gro

## Text

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STATE OF UT_TAR PRADESH
v.
NAWAB HUSSAIN
April 4, 1977
(Y. V. CHANDRACHUD, P. K. GOSWAMI AND P. N. SHINGHAL, JJ.]
.
Constr1~ctive res j~di'cata-M~tter which might or ought to have been raised
in a!z earlter proceeding not ra1sed-lf principle of constructive res judicata
applicable.
in a Writ jjeti'tion filed under Art. 226 of the Constitution impugning bis
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 r.espondent
filed a suit in a civil cou~t challenging his dismissal on the ground, among others,
that since he had been appointed by the Inspector-General of Police, his dismissal by the Deputy Inspector Gene-ral of Police was wrong. The State took the
plea that the suit was barred by res-iudicata. Dismissing th~ 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 considered 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 Bo1nbay [19651
2 SCR 547, and allowed the respondent's appeal.
Allowing the State's appeal to this Court,
HELD : The High Court was \Vrong in its vie\V because the la\v 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
G ulabchand'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 theories : (i) the finality and
conclusiveness of judicial decisions for the final termination of <liisputes in the
general interest of the community as a matter of public policy, and (ii) the
interest of the inaividual that he should be protected from multiplication of
litigation.
[430 DJ
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
sometim~_s be!_!l
~ferred to as constructive res·iudicata 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 A1nalr:ama1ed COalfields Ltd. and others v. lanapada
Sabha, [1962] I S.C.R. 1 this Court held that constructive res-iudica!a being a
special and artificial form of res-judicata should n?t generally. be applied to v.:nt
petitions, in Devilal. Modi's this Court held that if the doctrine of constructive
•
u. P. v. NAWAB HUSSAIN (Shinghal, J.)
429
res-judicata was not applied to writ proceedings, it would be open to a party to
take one procee'ding 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 DJ
3. The High Court missed the significaIJce of these decisions and relied upon
L. Jankirama Iyer and ·Others v. P. M. Nilakanta Iyer 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 subse~
quent suit on the_ ground that a matter which might or ought to have been raised
in the earlier proceeding but_ was not so r:iised 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 ifincij)le of resiudicata could not be made applicable to a writ petition. [435 E-F]
In the instant case, the respondent did nof raise the plea that he could not
be dismissed by the Deputy Inspector General of Police. This was an imp_ortant
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-iudicata and the High
Court erred in taking a contrary view.
[436 A-B]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2339 of .1968.
(Appeal by Special Leave from the Judgment and Order dated the
27-3-1968 of the Allahabad High Court in Scond Appeal No. 2352
of 1963).
G. N. D1kshit, and 0. P. Rana, for the appellant.
E. C. Agrawala, for the respondent.
The Judgment of the Court was delivered by
SHINGHAL, J. Respondent Nawab Hussain was a confirmed SubJru;pector of Police in Uttar Pradesh. An anonymous complaint was
madei against him and was investigated by Inspector Suraj Singh who
submitted his report to the Superintendent 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 Inspecto~ General o~ Police dated
December 20, 1954. He filed an appeal, brit it was dismissed on April
17, 1956. Hei then filed a writ petition in the Allahabad High Court
for quashing the disciplinary 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
oa October 3(}, 1959; The respondent then filed a suit in the court
of Civil Judge, Etah, on January 7, 196(}, in which he challenged the·
or~er of his dismissal on the ground, inter alia, that he had been appomted by the Inspector General of Police and that the Deputy Inspector Gen~r.al of Polic.e was not competent to dismiss him hy virtue
of the prov1s1ons of article 311 ( 1) of the Constitution. The State of
!Jttar Pradesh traversed the claim in the suit on several grounds, includ-
'.ng. the ~lea tpat the suit was barred by res judicata as "all the matters
m issue m this case had been raised or ought to have been raised both
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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 plaintiff's appointing
.authority. It however held that the suit was not barred by the principle of res judicata.
The District Judge upheld the trial court's judgment and dismissed the appeal on February 15, 1963. The respon•
dent preferred a second appea! 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 appointedlby the Inspector General of Police. As we
have reached the conclusion that the High Court committed an error
of law ii). 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,(') 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 interest 0£ the indidual that he should be protected from multiplication of litigation. It
therefore serves not only a public but also a private purpose by obstructing the reopening 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 otherwise the spirit
of contentiousness may give rise to confliCting judgments of eqool
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 judgment when pronounced. It cannot
therefore survive the judgm~nt, or give rise to 'another cause of action
on the same facts. This is wh~t 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 ac'tion as an abuse of its process and Somervell L.J., has answered it as follows in Greenhalgh
v.
Mallard(').-
"I think that on the authorities to which I will refer it
would bei accurate to say that res judicata for this purpose is
(1) [1939] 2 K.B. 426 at p. 437.
(2) [1947] ~ All. E.R. 255 at p. 257.
U.P. v. NAWAB HUSSAIN (Shinghal, J.)
431
not confined to the issues which the court is actually asked
ta 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 respect of them."
This is therefore ~nother 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 ampli-
.fication of the general principle.
These simple but ef!kacious rules of evidence have been recognised
for long, and it will be enough to refer to this Court's decision in Gulab-
·Chand Chhotalal Parikh v. State of Bombay(') for the genesis of the
-doctrine and its development over the years culminating in the present
sec,tion 11 of the Code of Civil Procedure, 1908. The section, with
its six explanations, covers almost the whole field, and has admirably
~erved the purpose of the doC!rine. But it relates to suits and former
suits, and has, in terms, no direct application to a petition for the issue
-of a high prerogative writ.
The general principles of res judicata and
-constructive res judicata have however been acted upon in cases of
-renewed applicaitions for a writ. Reference in this connection may be
made to Ex Parle Thompson( 2 ). There A. J. Stephens moved fon 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 31 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 as Stephens was making an
·application which had already been refused,
on fresh materials, he
eould 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
<if this Court in L. Janakimma Tyer and others v. P.
M.
Nilakanta
Tyer and others(8), Devllal Modi v. Sales Tax Officer, Ratlam and
-Others(') 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 cases I am inclined to
agree with the alernative argument of Sri K. C. Saxena, learn-
{I) [1965] 2 S.C.R. 547.
(2) 6 Q.B. 720.
(3) [1962] Supp. 1 S.C.R. 206 .
. (4) [1965] l S.C.R. 686.
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ed counsel for the plaintiff-appellant, that the law as declared by the Supreme Court in regard to the plea of res judicatti
barnng 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'
wher0 the suit which was brought by defendants 1 to 6 was withdrawrr
during the pendency of the appeal in the High Court and was dismissed.
In the mean timlj 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 de--
fendants 1 to 6 in their representative character and was conducted
as a representative suit, and it could not be said that defendants 1 l;j>
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 sec·
lion 11 was' thus inapplicable, it would not be permissible to rely upon
th~ general doctrine of res juaicata, 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 presentcontroversy.
The High Court then proceeded to consider this Court's decisions
in Devi/al Modi's case (supra) and Gu/abchand's case (supra). Guiab~
chand'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 subsequent
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 .grou_nd that a. matter
which might or ought to have been raISed m the earlwr proceedings was left open.
The learned Judges took care to
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1.!·P v. NAWAB HUSSAIN (Shinghal, J.)
4 33
observe that they made! it clear that it was not necessary
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and they had not considered that the principles of constructive res-judicata could 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."
As we shall show, that was quite an erroneous view of the decision
B
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 brier
reference to the earlier decisions in Amalgamated Coalfields Ltd. and
others v. Janapada Sabha, Chhindwara(') and Amalgamated Coalfields
Ltd. at8J another v. Janapada Sabha, Chhindwara, (') which was also
a case between th(j same parties.
In the first of these cases a writ
petition was filed to challenge the coal tax on some grounds.
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effort was made to canvass an additional ground, but that was not
allowed by this Conrt and the writ petition was dismissed.
Another
writ petition was filed to challenge the levy of the lax 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 Conrt in the second
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case,
The question which directly arose for decision was whether the
principle of constructive res judicdta was applicable to petitions under
articles 32 and 226 ofl the Constitution and it was
answered as
follows,-
"It is significant that the attack against the validity of
the notices in the present proceedings is based on grounds
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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
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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
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our opinion, constructive res judicata which is a special and
artificial form of res judicata enacted by section 11 of the
Civil Procedure Code should not generally he 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."
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It .ma,y thus appeau that this Court rejected the application of the
pnnc1ple of constructive res judicata on the ground that it was a
"special. and artifi~ial f?~ of nes judicata" and should not generally
be .applied to wnt petitions, but the matter did not rest there. It
agam arose for consideration in Devi/al Modi's case (supra).
Gajenc(ragadkar, J. who had spoken for the court in the second case of
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Amalgamated Coalfields Ltd. spoke for the Court in that case also. The
(1) [1962] I S.C.R. I.
(2) [19631 Supp. I. S.C.R. 172.
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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 permit_ted to do so.
He therefore filed another writ petition in the High Court raising those
additional contentions and challenged the order of assessment for the
same year.
The High Coult dismissed the petition on merits, and the
case came up again to this Court in appeal. The question which specifically arose for consideration 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 tenfts.-
"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; but basically, 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 in.consistent with considerations of public policy to which we have just referred."
.
.
While taking that view, Gajendragadkar ·c.J., tried to explain
the
earlier decision in Amalgamated Coalfields Ltd. v. lanapada Sabha,
Chhindwara(') 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 thti notice of the High .Court, but its
significance appears to have been lost because of the decisions in
Janakirama Iyer and others v. P. M. Nilakanta Iyer. (supra)
and
Gulabchand's case (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 decision in Gulabchand's lease
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 thel same parties.
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) [19631 Supp. I S.C.R. 172.
...
U.P. v. NAWAB HUSSAIN (Shinghal, J.)
4 35
He made a reference to the decision in Daryao land others v. The State
A..
of U.P. and others(') on the question of res judicdta and the decisions in Amalgamated Coalfields Ltd. and others v. lanapada Sabha,
Chhindwara(') and Dev11al 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 exhausti\ce with
&
respect to an earlier decision operating as res judicaJa 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 contrnversy, 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 a·s res judicata
in a
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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 observation,-
"We may make it clear that it was not necessary, and
we have not considered, 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 proce::ding was not so,
raised therein."
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It was this othet 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 constructive
res judicata could not he 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 rais!l 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 fo
the applicability
of the principle of constructive res judicata having been clearly laid
down in the decision in Devi/al Modi's case (supra), it was not neces·
sary to reiterate it in Gu/abchand's case (supra) as it did not arise
for consideration there.
The clarificatory observation of this Court
in Gulabchand's case (snpra) was thus misunderstood by the High
Court in observing that th<') 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
(!) [196i] l S.C.R. 574.
(2) [19631 Supp. 1 S.C.R.tn.
F
G
H
A
B
436
SUPREME COURT REPORTS
[1977) 3 S.C.R.
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 tha~ 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 permissiole for him
to challenge his dismissal, in the subsequent suit, on the other ground
that he had been di~missed 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.
The. appeal is allowed, the impugned judgment of the High Court
dated March 27, 1968, is set aside and the respondent'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-'2500-12-1_0-77 GIPF.