Constructive Res judicata
Constructive res judicata is provided under section 11 of the Civil Procedure Code, 1908. The provision relating to the constructive res judicata is contained in Explanation – IV of Section 11 of the Civil Procedure Code, 1908.
What is constructive res judicata? As per section 11 of the Code of Civil Procedure, 1908;
Res-Judicata – 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 – Any matter which might and ought to have been made a 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.
The object constructive res judicata in CPC under explanation IV under section 11 is to compel the plaintiff or defendant to take all grounds for attack or defence which were open to him which means that all the grounds of attack or defence must be taken in a suit. Whereas, the party is bound to bring forward his whole case in respect of the matter in issue and cannot abstain from relying upon or giving up any ground which is in contradiction or controversy and for consideration before the court and afterwards make it cause of action for a fresh suit.
It is stated that any matter which might have been made on the ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in the issue in such suit.
Furthermore, it contended that it 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 opposed party then he should not be permitted or eligible to take that plea against the same party in a subsequent proceeding with reference to the same subject matter in issue.
In simple terms, the doctrine of constructive res judicata is an extension of the principle of res judicata for serving the same purpose of preventing the multiplicity of similar litigations. Whereas the doctrine of res judicata basically prohibits suits which have already been decided by the competent court, and the constructive res judicata prohibits raising issues which ought to be raised in the previous suit.
Therefore, it is a clear law that opposed consideration of public policy on which the doctrine of res judicata is based and would mean hardship and harassment to the opposed party. And, if such a course is allowed to be adopted, then the doctrine of res judicata of the finality of the judgment pronounced by the courts would also be materially affected.
Hence, the doctrine of constructive res judicata helps in raising the bar of the res judicata by suitable construing the general principle of subduing a cantankerous litigant. Therefore, it is known as a doctrine of constructive res judicata.
In this case, A, a sub-inspector of police was dismissed from service by D.I.G. By filing a writ petition in High Court he challenged the order of dismissal on the ground that he was not afforded a reasonable opportunity of being heard before the passing of the dismissal order. The contention was, however, negatived and the petition was dismissed. He then filed a suit and raised an additional ground that science he was appointed by the I.G.P.
Later the D.I.G. had no power to dismiss him. The state contended that the suit was barred by constructive res judicata. The trial court, appellate court and high court held that suit was not barred, but the Supreme Court held that the suit was barred by constructive res judicata as the plea was within the knowledge of the plaintiff and could well have been taken in the earlier writ petition.
Constructive res judicata is provided under Explanation – IV of section 11 of the Civil Procedure Code, 1908. The doctrine of constructive res judicata is an extension of the principle of res judicata for serving the same purpose of preventing the multiplicity of similar litigations.
- The Code of Civil Procedure, 1908 (C-21) Bare Act with Short Notes
- Code of Civil Procedure with Overview Flowchart Latest Amendments – CPC Bare Act 2021 Edition
- Code of civil procedure C. K. Takwani – 2021
- Civil Procedure With Limitation Act, 1963 – 8/Edition
- Universal’s The Code Of Civil Procedure, 1908 (2020 Edition)
- Code of Civil Procedure & Indian Evidence Act Chart ( CPC chart ) – Laminated Wall Chart