Analysis of constructive res judicata

Analysis of constructive res judicata

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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

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

finally decided.

• 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

judicata apply.

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

former suit.

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.

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