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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 dis­

missal 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 dismis­

sal 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 con­

structive

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 res­

iudicata 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

Sub­

Jru;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 ser­

vice 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 ap­

pomted by the Inspector General of Police

and

that the Deputy Ins­

pector 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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430

SUPRE~E COUTS REPORTS [1977] 3 s.c.R.

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 princi­

ple of res judicata. The District Judge upheld the trial court's judg­

ment and dismissed the appeal on February 15, 1963. The respon•

dent preferred a second appea! which has been allowed by the im­

pugned judgment of the High Court dated March 27, 1968, and the

suit has been decreed. The appellant State of Uttar Pradesh has there­

fore 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 com­

munity as a matter of public policy, and

(ii) the interest

0£ the indi­

dual that he should be protected from multiplication of litigation.

It

therefore serves not only a public but also a private purpose by ob­

structing 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 sub­

sequent litigation, that would aggravate the burden of litigation. Courts

have therefore treated such a course of ac'tion as an abuse of its pro­

cess 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

star­

ted in respect of them."

This is therefore ~nother and an equally necessary and efficacious as­

pect of the same principle, for it helps in raising the bar

of res judicata

by suitably construing the general principle of subduing a

cantanker­

ous 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 man­

damus 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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432 SUPREME COUTS REPORTS [1977] 3 s.c.R.

ed counsel for the plaintiff-appellant, that the law as declar­

ed 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

de­

cree, 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 Pro­

cedure 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 present­

controversy.

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 inter­

preted 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 pro­

ceedings 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 A

and they had not considered that the principles of cons-

tructive 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. An C

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 subse­

quent periods on grounds distinct and separate

from those which

were rejected by this Court. The High Court held that the writ peti-

tion

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 D

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 E

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

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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 im-

pungned tax liability is for different years." G

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). Gajen­

c(ragadkar, J. who had spoken for the court in the second case of H

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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434 SUPREME COURT REPORTS [1977] 3 S.C.R~

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 speci­

fically arose for consideration was whether the principle

·of cons­

tructive 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 oppo­

nent, 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,

be­

cause 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 considera­

tions 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 construc­

tive

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 deci­

sion 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 res­

pect to the same matter between

thel same parties. After a consi­

deration 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 deci-

sions 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 bet-

ween 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

contrn-

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 a·s res judicata in a C:

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 subse-

quent 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 construc­

tive

res judicata can 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

proce::ding was not so,

raised therein."

E

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 pro­

ceeding 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.

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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 dis­

missed. 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.