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Analysis of Constructive res-judicata
By Saumya Satwara & Yuvraj Rathore1
'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
"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.
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
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:-
• No distinction is made between a claim and defense actually made or which might and ought to have been made. By fiction of law the latter also is deemed to have been
“directly and substantially in issue” in the former suit. That is not sufficient that a
matter might have been raised: more important is the question whether it “ought” to
have been raised.
• The word “directly and substantially in issue” have reference to both the “suit” and to an “issue” in the suit.
• As explanation 4 warrants the assumption that a matter which might and ought to have been made a ground of defense or attack in the former suit is to be deemed to
have been “directly and substantially in issue” in such suit, it must also be assumed at
the same time that such matter is to be “deemed to have been heard and finally
decided” in the suit. No express finding is necessary or possible as no decision by
court can be expected on points not specifically raised before it.
Where a matter which might and ought to have been made a ground of attack was not set up
in the plaint and an application to amend the plaint was refused, the matter will be deemed to
have been directly and substantially in issue so it will also be deemed to have been heard and
• The word “might” presupposes that the party affected had knowledge of ground of attack or defense at the time of previous suit. The question that
whether a party had at that time knowledge or means of knowledge of the
matter relied on in a subsequent suit is of great importance in the application
of the rule. The principle “might and ought to have been raised” must be held
to be with reference to the cause of action said to be available at the time when
the matter commences, and not at the time when the matter comes up for final
hearing. Knowledge about the ground of attack obtained from a witness during
the course of trial is enough and failure to pursue the point in cross
examination would bring it within this explanation.
• Subject to the exception, a party is bound to bring forward in the previous suit all the grounds of attack or defense that is available and possible for him.
According to the knowledge then.
Where a suit for pre-emption is dismissed, a subsequent suit by the plaintiff on the basis that
the vendor had no title to sell the property is not barred by constructive res judicata as the
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. Krisna2 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. Omprakash3 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. Gandua4 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
2 AIR 1982 All 282. 3 AIR 1970 SC 532. 4 AIR 1969 SC 1004.
In the state of UP v. Nawb Hussain5 the Supreme Court stated,
“This doctrine is based on two theories:
1. 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,
2. The interest of the individual that he should be protected from multiplications of
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
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 Hussain6 the supreme Court after referring to the
observations by Somervell CJ, in Greenhalgh v. Mallard7 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.
choose and sue upon the cause of action at time and to reserve the other for subsequent
litigation that aggravates the burden of litigation.
Courts have therefore treated such a cause of action as an abuse of its process. This is
therefore another and equally necessary and efficacious aspect of the same principle, for it
helps in raising the bar of res-judicata by suitably constructing the general principle of
subduing cantankerous litigation. That is why this other rule has sometimes been referred to
as constructive res-judicata, which, in reality, is an aspect or amplification of the general
Object of Constructive res-judicata:
The principle behind explanation IV is that if a party had an opportunity to raise a
matter in a suit it would be considered to have been raised and decided the underlying object
is to cut short litigation between the parties so that a person may not be vexed again with
regard to the same matter. It would be an abuse of the process of the court to allow a new
proceeding to be started in respect of the same issue. Where the parties had an opportunity of
ascertaining or controverting a matter that should be taken to be the same thing as if the
matter had been actually asserted and controverted and decided. Though this rule of
constructive res-judicata is technical and artificial, it has been founded on the same
considerations of public policy. In the absence of such a rule, it would be open to the party to
take one proceeding after another and urge new ground every time, which is plainly in
consistent with considerations of public policy. He rational of constructive res-judicata is that
the defendant should raise all pleas available to him at relevant time. It is sheer abuse of the
process of the court to raise at each successive stage different pleas to protract the
proceedings or to drive the party to multiplicity of proceedings. it would be fair and just that
the parties raise all available relevant pleas in a sit or the proceedings when the action is
initiated and omission thereof thus constitute constructive res-judicata.”
In the leading case of hoystead v. commissioner of taxation8 Lord Shaw rightly stated:
“parties are not permitted to begin fresh litigation because of new views they may
entertain the law of the case, or new versions which they present as to what should be
a proper apprehension by the court of the legal result either of the construction of the
documents or weight of certain circumstances.”
8 1926 ER 313.
• 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
Leading Cases Of Constructive Res-Judicata
150 years ago in Henderson v. Henderson Wigram9 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).
demand and a refusal then. The prayer was rejected observing that application could not have
been repeated from the time to time.
In Amalgamated coalfield Ltd v. Janapada Sabha10. The Supreme Court rejected the
application of the doctrine of constructive res judicata to writ petition filed under article 32 or article 226 of the constitution.
But in the leading case of Devilal v. S.T.O11, A challenged the validity of an order of
assessment under article 226. The petition was dismissed on merits. An appeal against that
order was also dismissed by the Supreme Court on merits. A again filed another writ petition
in the same High Court against the same order of assessment by taking some additional
grounds. The High Court dismissed the petition on merits. On appeal, the Supreme Court
held that the petition was barred by the principle of constructive res judicata.
The court observed that:
“ though the courts dealing with the question of the infringement of Fundamental
Right must consistently endeavor to sustain the said rights and should strike down
their unconstitutional invasion, it would not be right to ignore principle of res
judicata altogether in dealing with writ petition filed by citizen alleging the
contravention of their Fundamental Rights. Consideration of public policy cannot be
ignored in such cases, the basic doctrine that the judgment pronounced by his court
are binding and must be regarded as final between the parties in respect of matters by
them must receive due consideration.”
Explaining the possibility of abuse of process of law, the learned chief justice made following
“In the present case the appellant sought to rise additional points when he brought
his appeal before this court by special leave: that is to say, he did not take all the
points in the writ petition and thought of taking new points in an appeal, he filed a
new petition. When leave was refused to him by this court to take those points in
appeal, he filed a new petition in the High Court and took those points and finding
that the High Court decided against him on merits of those points, he has come to this
court but that is not all, at the hearing of this appeal he has again filed a petition
asking for leave from this court to take some more additional points and that shows
10 AIR 1980 SC 466. 11 AIR 1987 SC 1033.
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 Mandal12 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 India13 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. Kumaran14 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.