THE CODE OF CIVIL PROCEDURE, 1908

CASE STUDY

STATE OF UTTAR PRADESH V. NAWAB HUSSAIN [ AIR 1977 SC 1680]

SUBMITTED BY :-
MR. AKSHAY BHASIN
LL.B 3YR. MORNING 5TH SEM.
ROLL NO. - 201
 CASE STUDY

STATE OF UTTAR PRADESH

V.

NAWAB HUSSAIN

AIR 1977 SC 1680

Court : Supreme Court of India

Case No : CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2339 of 1968

Judges : HON'BLE JUSTICE P.N. SHINGHAL, HON'BLE JUSTICE Y.V. CHANDRACHUD

AND HON'BLE JUSTICE P.K. GOSWAMI

Parties : State of Uttar Pradesh Versus Nawab Hussain

Appearing Advocates : G.N. Dikshit, O.P. Rana, E.C. Agrawala, Advocates

Date of Judgment : 04-04-1977

Head Note : COMPARATIVE CITATIONS:

1977 AIR(SC) 1680, 1977 LIC 911, 1977 (2) SLR 1, 1977 (2) SCC 806, 1977 (3) SCR
428, 1977 SCC(L&S) 362, 1977 LabIC 911
 FACTS :-
1. Respondent Nawab Hussain was a confirmed Sub Inspector of Police in Uttar
Pradesh. An anonymous complaint was made against him and was
investigated by Inspector Suraj Singh who submitted his report to the Super-
intendent of Police on February 25, 1954.
2. 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 service by an order of the Deputy
Inspector General of Police dated December 20, 1954.
He filed an appeal, but it was dismissed on April 17, 1956. He 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 on October 30, 1959

CONTENTION BY THE RESPONDENT :-

The respondent then filed a suit in the court of Civil Judge, Etah, on January 7, 1960,
in which he challenged the order of his dismissal on the ground , inter alia, that he
had been appointed by the Inspector General of Police and that the Deputy
Inspector General of Police was not competent to. dismiss him by virtue of the
provisions of article 311 (1) of the Constitution.

CONTENTION BY THE STATE :-

The State of Uttar Pradesh traversed the claim in the. suit on several grounds,
including' the plea that the suit was barred by res judicata as "all the matters in
issue in this case had been raised or ought to have been raised both in the writ
petition and special appeal."

DECISION OF TRIAL COURT :-

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 plaintiffs appointing
authority. It however held that the suit was not barred by the principle of res-
judicata. First appeal was made by respondent to the District Judge.

DECISION OF DISTRICT JUDGE :-

The District Judge upheld the trial court's judgment and dismissed the appeal on
February 15 , 1963. The respondent preferred a second appeal which has been
allowed by the impugned judgment of the High Court dated March 27, 1968, and
the suit has been decreed.

DECISION OF HIGH COURT :-

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 appointed by the
Inspector General of Police. In short , Trial Court, District judge & High Court held
that the suit was not barred by Constructive Res-Judicata.
 CASE REFFERED BY HIGH COURT :-

1. L. Janakimma Iyer and others v. P. M. Nilakanta Iyer and others 1

Janakirama lyer's was a case where the suit which was brought by defendants 1 to
6 was withdrawn during the pendency of the appeal in the High Court and was
dismissed. In the mean time 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 decree, 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 Procedure could not apply because the suit was filed by the creditors
defendants 1 to 6 in their representative character and was conducted as a
representative suit, and it could not be said that defendants 1 to 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 section 11 was thus inapplicable, ' it would not be
permissible to rely upon the general doctrine of res judicata, 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.

1
[1962] Supp. 1 S.C.R. 206.
2. Devilal Modi v. Sales Tax Officer, Ratlam and others 2

The appellant was assessed to sales tax and the order of assessment was
challenged by a writ petition in the High Court. The High Court dismissed the
petition and he appealed to the Supreme Court. At the bearing of the appeal
additional contentions were sought to be raised. The appeal was dismissed and
the additional contentions were not permitted to be raised. Thereupon, he filed
another writ petition in the High Court raising those additional contentions and
challenging the order of assessment for the same year. The High Court dismissed
the petition on merits. On appeal to the Supreme Court, HELD : The appeal should
be dismissed as the principle of constructive resjudicata is applicable in these
circumstances. Though the courts dealing with questions of infringement of
fundamental rights must consistently endeavor to sustain them and strike down
their unconstitutional invasion, it would not be right to ignore the principle of res
judicata altogether in dealing with writ petitions. Considerations of public policy
and the basic doctrine that judgments of competent courts are final and binding
as between the parties must receive due consideration. 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 terms, --"This rule postulates that if a plea could have been taken by a p
arty in a proceeding between him and his opponent, 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

2
[1965] 1 S.C.R. 686.
considerations of public policy, because 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
inconsistent with considerations of public policy to which we have just referred."

3. Gulabchand Chhotalal Parikh v. State of Bombay

The appellant prayed for the issue of a writ of mandamus and a writ of prohibition
against the respondent-State in a writ application filed in the High Court, on the
ground that his liability as surety for some contractors stood discharged on account
of a particular action of the State. no High Court dismissed the petition on merits
after full contest. He thereupon filed a suit against the respondent and raised the
same plea that he was discharged from liability as surety on the same grounds.The
trial court, the first appellate Court and the High Court Held that the suit was
barred by res judicata in view of the judgment of the High Court on the writ
petition. In appeal to the Supreme Court, HELD (Per Sarkar, Raghubar Dayal,
Rajagopala Ayyangar and Mudholkar JJ.) : On general principles of res judicata, the
decision of the High Court on a writ petition under Art. 226 of the Constitution, on
the merits, on a matter, after full contest, will operate as res judicata in a
subsequent regular suit between the same parties with respect to the same
matter. The provisions of s. 11, Civil Procedure Code, 1908, are not exhaustive with
respect to an earlier decision operating as res judicata between the same parties
on the same matter in controversy in a subsequent regular suit and, on the general
principle of res judicata, any previous decision on a matter in controversy 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 as res judicata in a 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
subsequent suit have the same subject matter. The nature of the former
proceeding is immaterial. There is, therefore, no good reason to preclude such
decisions on matters in controversy in writ proceedings under Arts. 226 or 32 from
operating as res judicata in subsequent regular suits on the same matters in
controversy, between the same parties, and thus to give limited effect to the
principle of finality of decisions after full contest Case law reviewed. Per Subba
Rao, J. (dissenting) : The decision given by the High Court in the writ petition would
not preclude the court, before which the suit was filed, from deciding the same
question an merits in the suit. This view, while it does not make s. 11 of the Code
an unnecessary provision, does not lead to any practical difficulties, for, the
decision of the High Court on a question of law will be binding as an authority
on Subordinate Courts and its decision on a question of fact will rarely be differed
from by the said courts.

4. Amalgamated Coalfields Ltd. and others v. Janapada Sabha, Chhindwara 3 and

Amalgamated Coalfields Ltd. and another v. Janapada Sabha, Chhindwara 4

In the first of these cases a writ petition was filed to challenge the coal tax on some
grounds. An' effort was made to canvass an additional ground, but that was not

3
[1962] 1 S.C.R. 1.
4
[1963]. Supp. 1. S.C.R. 172.
allowed by this Court and the writ petition was dismissed. Another writ petition
was filed to challenge the levy of the tax for the subsequent periods on grounds
distinct and separate from those which were rejected by this Court. The High Court
held that the writ petition was barred by res-judicata 'because: of the earlier
decision of this Court. The matter came up in appeal to this Court in the second
case. The question which directly arose for decision was whether the principle of
constructive res judicata was applicable to petitions under articles 32 and 226 of
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
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 petit ions filed under Art. 32 or Art. 226. In 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 be applied to writ
petitions field under Art. 32 or Art. 226. So it was categorically held that the
principle of constructive res judicata was applicable to writ petitions.

HIGH COURT VIEWS WITH PRECEDENTS

1. The High Court has interpreted 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.
2. 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 ground that a matter which might or ought
to have been raised in the earlier proceedings was left open.
3. The learned Judges to ok care to observe that they made it clear that it was not

necessary and they had not considered that the principles of constructive 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."
4. As we shall show, that was quite an erroneous view of the decision of this Court

on the question of constructive res-judicata. We would be reluctant to apply this

principle to the present appeals all the more because we are dealing with cases
where the impugned tax liability is for different years."
5. It may thus appear that this Court rejected the application of the principle of

constructive res judicata on the ground that it was a "special and artificial form
of res judicata" and should not generally be applied to writ petitions,.but the
matter did not rest there. It again arose for consideration in Devilal Modi's case
(supra).
6. This case was brought to the 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 ease (supra).

SPECIAL LEAVE PETITION SUPRERME COURT :-

The appellant State of Uttar Pradesh has there fore come up in appeal to this Court
by special leave.. As They reached the conclusion that the High Court committed
an error of law in 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. 5

ISSUE :-

Whether writ petition will be barred constructive resjudicata?

OBSERVATION SUPREME COURT :-

1. It may be said to be "the broader rule of evidence which prohibits the

reassertion of a cause of action." This doct rine 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 community as a
matter of public policy, and
(ii) the interest of the individual that he should be protected from
multiplication of litigation.
2. It therefore serves not only a public but also a private purpose by 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, for otherwise the spirit of contentiousness may give rise to
conflicting judgments of equal authority, lead to multiplicity of actions and bring
the administration of justice into disrepute.

5
Marginson v. Blackburn Borough council, ([1939] 2 K.B. 426
3. 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.
4. It cannot therefore survive the judgment, or give rise to another cause of action

on the same facts. This is what 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.
5. 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 subsequent litigation, that would
aggravate the burden of litigation. Courts have therefore treated such a course
of action as an abuse of its process.
6. Somervell L.J., has answered it as - "I think that on the authorities to which I will

refer it would be accurate to say that res judicata for this purpose is not confined
to the issues which the court is actually asked to 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 started in respect of them." 6
7. This is therefore another and an equally necessary and efficacious aspect of the

same principle, for it helps in raising the bar of res judicata , by suitably
construing the general principle of subduing a cantankerous litigant. 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 principle.

6
Greenhalgh v. -Mallard([1947] 2 All. E.R. 255
8. These simple but efficacious rules of evidence have been recognised for long,

and it will be enough to refer to this Courts decision for the genesis of the
doctrine and its development over the years culminating in the present section
11 of the Code of Civil Procedure, 1908. 7
9. The section, with its six explanations, covers almost the whole field, and has

admirably served the purpose of the doctrine. 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 applications for a
writ.
10. We find that the High Court in this case took note of the decisions this Court

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
alternative argument of Sri K.C. Saxena, learned counsel for the plaintiff-
appellant, that the law as declared by the Supreme Court in regard to the plea
of res judicata barring 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.
11. 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.

7
Gulabchand Chhotalal Parikh v. State of Bombay([1965] 2 S.C.R. 547
12. Court think it is competent for the plaintiff to raise such a plea in the subsequent

suit and bar of res judicata will not apply."

13. We have gone through these cases. We have made a reference to the decision

in Janakirama Iyer's case which has no bearing on the' present controversy, and
we may refer to the decision in Gulabchand's case 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 respect to the same matter between the same parties.
14. After a consideration 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."
15. He made a reference to the decision in Daryao and others v. The State of U.P.

and others 8 on the question of res judicata and the decisions in Amalgamated
Coalfields Ltd. and others v. Janapada Sabha, Chhindwara 9 and Devilal 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 exhaustive with respect to an earlier decision operating as res judicata
between the same parties on the same matter in controversy in a subsequent

8
[1962] 1 S.C.R. 574
9
[1963] Supp. 1 S.C.R.172
 regular suit and that on the general principle of res judicata, any previous
decision on a matter in controversy, 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 as res judicata in a 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 subsequent suit have
the same subject matter. The nature of the former proceeding is immaterial."
16. 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 constructive res judicata can 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."
17. It was this other 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 proceeding 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 be 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 raise 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.
18. As is obvious, the High Court went wrong in taking that view because the law in

regard to the applicability of the principle of constructive res judicata having

been clearly laid down in the decision in Devilal Modi's case (supra), .it was not
necessary to reiterate it in Gulabchand's case (supra) as it did not arise for
 consideration there. The clarificatory observation of this Court in Gulabchand's
case (supra) was thus misunderstood by the High Court in observing that the
matter had been "left open"' by this Court.
19. 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 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 that 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 permissible for him to challenge his dismissal, in the subsequent
suit, on the other ground that 'he had been dismissed by an authority
subordinate to that by which he was appointed. That was clearly barred by the
principle constructive res judicata and the High Court erred in taking a contrary
view.

JUDGMENT :-

The appeal is allowed, the impugned judgment of the High 'Court dated March 27,
1968, is set aside and the respondent's suit is dismissed. In the circumstances of
the case, we direct that the parties shall pay and bear their own costs.