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Analysis of Constructive res-judicata
By Saumya Satwara & Yuvraj Rathore^1
Abstract
'Res' in Latin means a matter, 'Judicata' means already decided or judged. This rule operates as a bar to the trial of a subsequent suit on the same cause of action between the same parties. Its basic purpose is - "One suit and one decision is enough for any single dispute".
"Res judicata pro veritate accipitur" is the full maxim which has, over the years, shrunk to mere "res judicata". Section 11 contains the rule of conclusiveness of the judgment, which is based partly on the maxim of Roman Jurisprudence "interest reipublicae ut sit finis litium" (it concerns the State that there be an end to law suits) and partly on the maxim "Nemo debet bis vexari pro una at eadem causa" (no man should be vexed twice over for the same cause).
The principle of res judicata includes Constructive Res Judicata. 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.
Introduction
This article aims at analyzing the concept of Constructive Res judicata as given in the Indian Code of Civil Procedure, 1908 and explaining the main object of Constructive Res judicata with its application. We have tried to clearly point out as to how Constructive Res judicata is different from Res judicata with the use of different case laws. In this paper a comparative study of Constructive Res judicata is done between Indian laws and English laws. Moreover, a final conclusion as to laws of which country has larger scope has also been discussed. We have also attempted to clarify the interpretation of the words “might” and “ought” which are used in the definition along with some tests to determine its meaning. Moreover, for the clarity of the concept various landmarks judgments has been referred to in which the Courts have up to great extent interpreted the clause in different manners and thus enabling us to view it from different angles. And after analyzing whole of the content a
(^1) 3rd Year B.A. LL.B. (Hons.) Students, Gujarat National Law University, Gandhinagar.
conclusion is given summing up everything along with recommending new reforms by which the flaws of this section can be amended.
Constructive Res judicata
Res judicata:
The doctrine of res judicata prevents a litigant from getting yet another day in court after the first lawsuit is concluded by giving a different reason than he gave in the first for recovery of damages for the same invasion of his right. The rule provides that when a court of competent jurisdiction has entered a final judgment on the merits of a cause of action, the parties to the suit and their privies are bound "not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose." A final judgment on the merits bars further claims by the same parties based on the same cause of action.
Res judicata prevents a plaintiff from suing on a claim that already has been decided and also prevents a defendant from raising any new defense to defeat the enforcement of an earlier judgment. It also precludes re-litigation of any issue, regardless of whether the second action is on the same claim as the first one, if that particular issue actually was contested and decided in the first action. Former adjudication is an analogue of the criminal law concept of double jeopardy ( Nemo debet bis vexari pro una at eadem causa).
Constructive Res Judicata:
A matter directly and substantially in issue again be so either actually or constructively. A matter is actually in issue when it is alleged by one party and denied or admitted by the other. It is constructively in issue when it might and ought to have been made a group of attack or defense in the former suit.
Principle of constructive res judicata can be invoked even inter se respondent, but before any plea by contesting respondent could be said to be barred by constructive res judicata in future proceedings inter se such contesting respondent, it must be shown that such a plea was required to be raised by the contesting respondent to meet the claim of the appellant in such proceeding. It would be impermissible to permit any party to raise an issue, inter se, where such an issue has been decided in an earlier proceeding.
As regards to the application of the rule of constructive res-judicata in explain in the following points may be noted:-
challenge to the right of the vendor to sell the property is clearly outside the purview of the suit for pre-emption. In case of Anchal v_. Krisna 2_ where liability of the insurance company is
limited to policy amount, suit by insurance company filed to recover excess amount paid to the insured from the owner of the vehicle, would not be barred by constructive res-judicata.
In Union v_. Omprakash 3_ where property was sold in execution of money decree against
member of schedule tribe without prior permission of competent authority under Orissa Reg. 2 of 1956 judgment debtor though did not raise any plea either in suit or execution proceedings are not barred to raise such plea subsequently on principle of constructive res- judicata as basic issue is validity of sale. In K. Adicanda v. Gandua^4 where objection in execution grounds open to the judgment-debtor are not taken, it is not open to him to raise those objections in second subsequent objection, even if the first objection is pending for disposal, being barred by the principle of constructive res judicata.
English Law and Indian law
There is difference between English law and Indian Law in application of doctrine of constructive res judicata. Under the English law , constructive res judicata applies where the cause of action put forward in the subsequent suit is one and same which had been made a ground of attack or defense in the previous suit and not otherwise. Spencer Bower and Turner have stated: “Cause of action estoppels is applicable solely to the cause where the same cause of action is allege in successive proceedings. It is reciprocal estoppels, and operate both as an estoppels per rem judicatum and conversely by way of merger but where one cause of action has been the subject of final jurisdiction between parties, those determinations of particular issues which are its essential foundation, without which it could not stand, may be used as a basis of issue estoppels between the same parties when another cause of action altogether is set up.” Under the Indian law , 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 the plea against the same party in a subsequent proceeding which is based on the same cause of action, and the doctrine of res judicata apply.
(^2) AIR 1982 All 282. (^3) AIR 1970 SC 532. (^4) AIR 1969 SC 1004.
In the state of UP v. Nawb Hussain 5 the Supreme Court stated, “This doctrine is based on two theories:
- The finality and conclusiveness of judicial decisions for the final termination of the disputes in the general interest of the community as a matter of public policy,
- The interest of the individual that he should be protected from multiplications of litigation. It therefore, serves thus not only public but also a private purpose of 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, or otherwise the spirit of contentiousness may give rise to conflicting judgments of equal authority, leads to multiplicity of actions and bring administration of justice into disrepute.”
Explanation IV of constructive res-judicata
It is well known that the doctrine of res-judicata is confined in section 11of CPC but it is not exhaustive, sec 11 generally comes into play in relation to civil suits. But apart from the confined law, the doctrine of res-judicata are the principal of res-judicata has been applied since long in various other kinds of proceedings and situations by courts in England, India or in other countries. The rule of constructive res-judicata is engrafted in explanation IV of the sec 11 of CPC and in many other situations also the principle not only of direct res-judicata but of constructive res-judicata are applied. If by any judgment or order a matter in issue has been directly and explicitly decided, the decision operates as res-judicata and bars the trial of an identical issue in the subsequent proceeding between the same parties. The principle of res-judicata also comes into play when by the judgment and the order a decision of a particular issue is implicit in it, that is, it must be deemed to have been necessarily decided by implication, then also the principle of res-judicata on that issue is directly applicable.
In the state of UP v. Nawab Hussain 6 the supreme Court after referring to the observations by Somervell CJ, in Greenhalgh v. Mallard^7 stated it may be that the same set of facts may give rise to two or more cause of action. If in such a case a person is allowed to
5 AIR 1969 SC 1256.
6 AIR 1969 SC 1256.
7 1576 ER 123.
- A sues B for possession of property on the basis of ownership. The suit is dismissed. A cannot thereafter claim the possession on property as mortgagee as that ground ought to have been taken in the previous suit as a ground of attack.
- A files a suit against B for declaration that he is entitle to certain land as heir of C. the suit is dismissed. The subsequent suit, claiming the same property on the ground of adverse possession, is barred by constructive res judicata.
- A files a suit against B to recover money on a pro note. B contained that the promissory note was obtained from him by undue influence. The objection is overruled and suit is decreed. B cannot challenge the promissory note on the ground of coercion or fraud in subsequent suit, inasmuch as he ought to have taken that defense in the former suit.
- A sues B to recover damages for a breach of the contract and obtains a decree in his favour. B cannot afterward sue A for recession of contract on the ground that it did not fully represent the agreement between the parties, since that ground ought to have been taken by him in the previous suit as a ground of defense.
- As a mortgagor A sues B for redemption of certain property alleging that he has mortgaged it with possession to B. the mortgage is not proved and the suit is dismissed. A files another suit against B for possession of the same property claiming to be the owner thereof. The suit is not barred.
Might and Ought
As already discussed above, the primary object is of explanation IV is to cut short the litigation by compelling the party to the suit to rely upon all grounds of attack or defense which are available to him. If the plaintiff or defendant does not take up any such ground though he “might” and “ought” to have taken such ground of attack or defense it will be treated to have been raised and decide.
The expression might and “ought” are of wide amplitude. The word “might” presupposes that the party affected had knowledge of the ground of attack or defense at the time of previous suit. “Might” thus, conveys the possibility of putting forward such ground of attack or defense whereas “Ought” compels party to take such ground. Hence, all grounds of attack or defense must be taken by the party even if they can be taken in alternative except in cases where it would be inexpedient and to do so, or the matters are so dissimilar that they their union might lead to confusion.
If the plaintiff omits to place certain grounds in support of his claim or the defendant does not raise all objections to convert the claim of plaintiff, he will not subsequently be permitted to raise such grounds in support of his claim or to destroy the case of opposite party. A plea which could have been raised as a ground of defense and yet not raised would operate as constructive res-judicata but the plea which was not in existence or could not be raised in law or was not within knowledge of party cannot be said to be one which ”might” and “ought” to have been raised. The word “and” between the words “might” and “ought” must be read as consecutive conjunctive and not disjunctive. And unless this is proved that the matter “might” and “ought” to have been raised in the previous litigation, the plea of constructive res-judicata under explanation IV cannot be upheld. Test of “might” and “ought”: As rightly been observed in Mulla’s Code of civil procedure , the question whether a matter might have been made a ground of attack or defense in the suit rarely presents any difficulty. So, there is no rule of universal application which can be laid down. One test , however, is to see whether by raising the question that the decree that was passed in the previous suit could have been defeated, varied or in any way affected. If the question is of such a nature that it must be deemed to be a question which ought to have been raised in the former suit.
Leading Cases Of Constructive Res-Judicata
150 years ago in Henderson v. Henderson Wigram^9 V.C. stated: “the plea of res judicata applies except in special cases, not only to points on which the court was actually requested by the parties to form an opinion and pronounce a judgment, but to every point properly belonged to the subject of litigation, and which the parties exercising reasonable diligence might have, brought forward at the time.” Similarly, in Thompson ex parte, A prayed for writ of mandamus. The petition was however, dismissed on the ground that it did not appear from the record that there was “a demand and a refusal”. A again applied for mandamus containing that there had been a
(^9) 126 ER (1345).
that if constructive res judicata is not applied to such proceeding a party can file as many petitions as he likes and take one or two points every time.” In forward Construction Co. v. Prabhat Mandal 12 a writ petition was filed under
article 226 of the constitution challenging user of land by the municipal corporation for a commercial purpose different from that for which the land had been reserved and designated under the development plan as well as under the town planning scheme. The said petition was dismissed by the High Court, again a writ petition was filed in the High Court under Article 226 of the Constitution. The High Court held that the petition was maintainable and the earlier judgment would not operate as res judicata inasmuch as one of the grounds taken in the subsequent petition was not present in the earlier petition.
Reversing the decision of High Court the Supreme Court observed:
“Explanation IV to section 11 of CPC provides that any matter which might and ought to have been made ground of defense or attack in such former suit shall be deemed to have been a matter a matter directly and substantially in issue in such suit. An adjudication is conclusive and final not only as to the actual matter determined but as to very other matter which the parties might and ought to have litigant and have had it decided as incidental to or essentially connected with the subject matter of litigation and every matter coming within the legitimate purview of the original action both in respect of the matters of claim or defense. The principle underlying explanation IV is that where the parties have had an opportunity of controverting a matter that should be taken to be the same thing as if the matter had been actually controverted and decided.” In Junior Telecom officers Forum v. Union of India 13 the controversy regarding the mode of promotion to Telecom Engineering service and fixation of seniority in the lower cadre was decided by the Supreme Court in earlier petition filed by the association as well as by the union of India. The same issue was subsequently sought to be raised by the ‘forum’ on various aspects not considered in earlier petitions and by the employees who were adversely affected and yet not made parties in earlier petitions. The Supreme Court dismissed the petition upholding the preliminary contention that it was not permissible for the petitioners to once again re-agitate the matter which had already been settled by the court.
12 AIR 1988 SC 678.
13 AIR 1967 SC 1470.
In C.I.T. v. T.P. Kumaran^14 against an order of dismissal from service, a suit was filed
by the plaintiff, which was decreed. Since the arrears were not paid, he filed a writ petition which was allowed and the arrears were paid to him. He then filed an application for interest on service, which was allowed by the central Administrative tribunal. The department approaches the Supreme Court. Quashing the order passed by the tribunal, the Court said:
“The tribunal has committed a gross error of law in directing the payment. The claim is barred envisages that any matter which might and ought to have been made ground of defense or attack in a previous suit, shall be deemed to have been a matter directly and substantially in issue in a subsequent suit.”
14 AIR 1974 SC 1126.
