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STATE OF U.P. V. NAWAB HUSSAIN

A CASE COMMENT
submitted in the course of study in the
6th Semester
at
Rajiv Gandhi National University of Law

Submitted By: Jotsaroop Singh

(Sem VI - 19103)
Submitted To: Adv. Gurjit Singh

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ACKNOWLEDGEMENT

I would like to express my special thanks to Professor (Dr) G.S. Bajpai, Vice-
Chancellor and Professor (Dr) Naresh Kumar Vats, Officiating Registrar, Rajiv
Gandhi National University of Law, for giving me the opportunity to deal with the topic
“State of U.P. v. Nawab Hussain” in detail and presenting in the form of this case
comment.

I would like to express my sincere gratitude and ineffable indebtedness to my CPC and
Limitation Professor Adv. Gurjit Singh, who guided me throughout the case comment.
It was my privilege to work under their guidance.

At last, I would also like to thank my friends for helping me and motivating me to
complete this case comment on time.

Jotsaroop Singh
Rajiv Gandhi National University of Law Punjab
Third Year
19103

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INDEX
1. Introduction .......................................................... Error! Bookmark not defined.

2. The Case............................................................... Error! Bookmark not defined.

3. Analysis................................................................ Error! Bookmark not defined.

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1. INTRODUCTION
The English Common Law System gave birth to the concept of res judicata. The
overarching principle of judicial consistency underpins the Common Law system. Res
judicata initially appeared in Common Law's Code of Civil Procedure, and then in the
Indian Legal System. The doctrine of res judicata will strike the suit if either of the
parties in a case approaches the same court for a judgement on the same issue. Res
judicata is also used in administrative law. It aids in the administration of the Judiciary's
efficiency in working and disposing of cases.

When there are many petitions filed in the same or another Indian court with the same
parties and facts, the theory of res judicata comes into play. Parties to a lawsuit may file
the same suit many times in order to harass the opposing party's reputation and obtain
money twice. As a result, the doctrine of res judicata plays a significant function and
relevance in the Code of Civil Procedure in order to avoid such overloads and
unnecessary cases.

Res means “subject matter” and judicata means “adjudged” or decided and together it
means “a matter adjudged”.

In simpler words, the thing has been judged by the court, the issue before a court has
already been decided by another court and between the same parties. Hence, the court
will dismiss the case as it has been decided by another court. Res judicata applies to
both civil and criminal legal systems. No suit which has been directly or indirectly tried
in a former suit can be tried again.

The principle of res judicata seeks to promote the fair administration of justice and
honesty and to prevent the law from abuse. The principle of res judicata applies when
a litigant attempts to file a subsequent lawsuit on the same matter, after having received
a judgment in a previous case involving the same parties. In many jurisdictions, this
applies not only to the specific claims made in the first case but also to claims that could
have been made during the same case. Examples of Res Judicata include

• ‘A’ sued ‘B’ as he didn’t pay rent. ‘B’ pleaded for the lessening of rent on the
ground as the area of the land was less than the mentioned on the lease. The

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Court found that the area was greater than shown in the lease. The area was
excess and the principles of res judicata will not be applied.

• In a case, ‘A’ new lawsuit was filed in which the defendants requested that the
Court dismiss the lawsuit with a plea of res judicata. She was barred from
bringing a claim of res judicata because her previous claim was dismissed for
fraud. The Court said that the defence of res judicata must be proved by
evidence.

In this project, we shall aim to first understand the concept of res judicata in more detail,
and then take a look at constructive res judicata, as outlined in the case of State of U.P.
v. Nawab Hussain.1

1
State of U.P. v. Nawab Hussain, 1977 2 SCC 806.
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2. RES JUDICATA
The double jeopardy provision of the Fifth Amendment to the U.S. Constitution
protects people from being put on a second trial after the case has been judged. So the
doctrine of res judicata addresses this issue and it bars any party to retry a judgment
once it has been decided.
Section 11 of the CPC incorporates the doctrine of res judicata also known as “rule of
conclusiveness of judgment”.2 The doctrine of res judicata has been explained in the
case of Satyadhyan Ghosal v. Deorjin Debi.3 The judgment of the court was delivered
by Das Gupta, J. An appeal was made by landlords who attained a decree for ejectment
against the tenants who were Deorajin Debi and her minor son. However, they have not
been yet able to get possession in execution soon after the decree was made. An
application was made by the tenant under Section 28 of the Calcutta Thika Tenancy
Act and alleged that they were the Thika tenants.4 This application was resisted by the
landlords saying they were not Thika Tenants within the meaning of the Act.
The tenants moved to the High Court of Calcutta under the Civil Procedure Code. The
court applied the principle of res judicata to achieve the finality in litigation. The result
came that the original court, as well as the higher court, can proceed for any future
litigation on the basis that the previous decision was correct.
The doctrine of res judicata says –
• That no person should be disputed twice for the same reason.
• It is the State that decides there should be an end to a litigation
• A judicial decision must be accepted as the correct decision.

2.1 Nature and Scope

Res judicata includes two concepts of claim preclusion and issue preclusion. Issue
preclusion is also known as collateral estoppel. Parties cannot sue each other again after
the final judgment on the basis of merits has reached in civil litigation. For example, if
a plaintiff wins or loses a case against the defendant in the case say A, he cannot
probably sue the defendant again in case B based on the same facts and events. Not

2
Sec. 11, Civil Procedure Code, 5 of 1908.
3
Satyadhyan Ghosal v. Deorjin Debi, 1960 AIR 941.
4
Sec. 28, Calcutta Thika Tenancy Act, 37 of 1981.
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even in a different court with the same facts and events. Whereas in issue preclusion it
prohibits the re-litigation of issues of law that have already been determined by the
judge as part of an earlier case.
The scope has been decided in the case of Gulam Abbas v. State of Uttar Pradesh.5 In
this case the court incorporated the rules as evidence as a plea of an issue already tries
in an earlier case. Judgment of this case was difficult as the judges should apply res
judicata. It was decided that res judicata is not exhaustive and even if the matter is not
directly covered under the provisions of the section it will be considered as a case of
res judicata on general principles.

2.2 Rationale

The principle of res judicata is founded upon the principles of justice, equity, and good
conscience and it applies to various civil suits and criminal proceedings. The purpose
of this principle was to inculcate finality into litigation.
2.3 Estoppel
Estoppel means the principle which prevents a person from asserting something that is
contrary to what is implied by a previous action. It deals in Section 115 to Section 117
of the Indian Evidence Act.6 The rule of constructive res judicata is the rule of estoppel.
In some areas the doctrine of res judicata differs from the doctrine of estoppel –
• Estoppel flows from the act of parties whereas res judicata is the result of the
decision of the court.
• Estoppel proceeds upon the doctrine of equity, a person has induced another to
alter his position to his disadvantage cannot turn around and take advantage of
such alteration. In other words, res judicata bars multiplicity of suits and
estoppel precludes multiplicity of representation of cases.
• Estoppel is a rule of evidence and is enough for the party whereas res judicata
expels the jurisdiction of a court to try a case and prevents an enquiry at the
threshold (in limine).
• Res judicata forbidden a person averring the same thing twice in the litigations
and estoppel prevents the person from saying two opposite things at a time.

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Gulam Abbas v. State of Uttar Pradesh 1981 AIR 2198.
6
Secs. 115-117, Indian Evidence Act, 01 of 1872.
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• According to the principle of res judicata, it presumes the truth of decision in

the former suit while the rule of estoppel precludes the party ton deny what he
or she has once called truth.
2.4 Exceptions to res judicata
The principle of res judicata does not apply in the Writ of Habeas Corpus as far as High
Courts are concerned. Article 327 gives power to the Supreme Court to issue writs and
some power is given to High Courts under Article 226.8 The Courts need to give proper
reasoning while applying the doctrine of res judicata. There are some exceptions to res
judicata which allow the party to challenge the validity of the original judgment even
outside the appeals. These exceptions are usually known as collateral attacks and are
based on jurisdictional issues. It is not based on the wisdom of the earlier decision of
the court but the authority to issue it. Res judicata may not be applicable when cases
appear that they need re-litigation. Some other exceptions include

2.4.1 Instalment Supply Private limited v. Union of India9

In cases of income tax or sales tax, the doctrine of res judicata does not apply. It was
discussed in the case of Instalment Supply Private limited vs. Union of India where the
Supreme Court held that assessment of each year is final for that year and it will not
govern in the subsequent years. As it determines the tax only for that particular period.

2.4.2 P. Bandhopadhya and Ors. v. Union of India and Ors10

In the case of P. Bandhopadhya and others v. Union of India and others, the appeal was
made in the Bombay High Court and the appellants asserted that they will be entitled
to receive an amount as damages. The Supreme Court bench held that the appellants
were not entitled to receive damages which were pensionary benefits under the Pension
Rules 1972. They were entitled to receive benefits as the case was barred by the
principle of res judicata.

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Article 32, INDIAN CONST.
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Article 226, INDIAN CONST.
9
Instalment Supply Private limited vs. Union of India, 1962 AIR 53.
10
P. Bandhopadhya and Ors. v. Union of India and Ors., CIVIL APPEAL NO. 3149 OF 2019.
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In the case of Public Interest Litigation, the doctrine of res judicata does not apply. As
the primary object of res judicata is to bring an end to litigation so there is no reason to
extend the principle of public interest litigation.

Dismissal of special leave petition in limine does not operate as res judicata between
the parties. A fresh petition will not be filed either under Article 32 or under Article
226 of the Constitution.

2.4.3 Beliram and Brothers v. Chaudhari Mohammed Afzal11

In the case of Beliram and Brothers v. Chaudhari Mohammed Afzal, it was held that a
minor’s suit cannot be brought by the guardian of the minors. However, it was brought
in collaboration with the defendants and the decree obtained was by fraud within the
Indian Evidence Act, 1872 and it will not operate res judicata.

2.4.4 Jallur Venkata Seshayya vs. Thadviconda Koteswara Rao 12

In the case of Jallur Venkata Seshayya vs. Thadviconda Koteswara Rao, a suit was filed
in the Court so that certain temples are called public temples. A similar suit was
dismissed by the Court two years ago and the plaintiff contended that it was negligence
on the part of the plaintiffs (of the previous suit) and therefore the doctrine of res
judicata cannot be applied. However, the privy council said that the documents were
suppressed which means that the plaintiff in the earlier suit had bona fide intention
(something that is genuine and there is no intention to deceive).

2.5 Can Res Judicata be waived?

In the case of P.C. Ray and Company Private Limited v. Union of India,13 it was held
that the plea of res judicata may be waived by a party to a proceeding. If a defendant
does not raise the defence of res judicata then it will be waived. The principle of res
judicata belongs to the procedure and either party can waive the plea of res judicata.

11
Beliram and Brothers v. Chaudhari Mohammed Afzal (1948) 50 BOMLR 674.
12
Jallur Venkata Seshayya vs. Thadviconda Koteswara Rao.
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P.C. Ray and Company Private Limited v. Union of India, AIR 1971 Cal 512.
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The court can decline the question of res judicata on the ground that it has not been
raised in the proceedings.

2.6 Criticism

Res judicata can also be applied to judgment that may be contrary to law. The doctrine
of res judicata has been used for a long time and it encloses the general effect of one
judgement upon another trial or proceeding. It includes matters not only those of bar
but also those matters which should be litigated. For example, if a case has been
dismissed on a specific ground by a court of law or equity and it is not deemed as a
final judgment and technically res judicata will apply but it is not justified. If the
chancellor has denied equitable relief on a principle but it was held by the court that the
plaintiff is barred from proceeding as a legal remedy. Most of the equity cases involve
res judicata and do not get beyond collateral estoppel. As it raises the difficulty of
overlapping more than the failure to litigate issues.

The title to real estate and the right to collect rent depended upon one and the same
construction of a will. In an interpleader over the rents, A got the decree. B appealed,
without supersedeas, and secured a reversal, but, before his appeal was decided, A had
sued him in ejectment, invoking the decree, and recovered a judgment for the real estate.
B did not appeal from this judgment, but, after the reversal of the decree, he sued A in
ejectment for the land, relying upon the reversal.

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3. CONSTRUCTIVE RES JUDICATA

The rule of constructive res judicata in Section 11 of the Civil Procedure Code is an
artificial form of res judicata. It provides that if a plea has been taken by a party in a
proceeding between him and the defendant, he will not be permitted to take pleas
against the same party in the following proceeding with reference to the same matter. It
is opposed to public policies on which the principle of res judicata is based. It would
mean harassment and hardship to the defendant. The rule of constructive res judicata
helps in raising the bar. Hence this rule is known as the rule of constructive res judicata
which in reality is an aspect of augmentation of the general principles of res judicata.

3.1 The Case

In the case of State of Uttar Pradesh v. Nawab Hussain, M was a sub-inspector and was
dismissed from the service of D.I.G. he challenged the order of dismissal by filing a
writ petition in the High Court. He said that he did not get a reasonable opportunity of
being heard before the passing of the order. However, the argument was negatived and
the petition was dismissed. He again filed a petition on the ground that he was appointed
by the I.G.P. and had no power to dismiss him. The defendant argued that the suit was
barred by constructive res judicata. However, the trial court, the first appellate court as
well as the High Court held that the suit was not barred by the doctrine of res judicata.
The Supreme Court held that the suit was barred by constructive res judicata as the plea
was within the knowledge of the plaintiff, M and he could have taken this argument in
his earlier suit.

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4. CONCLUSION
The Doctrine of Res Judicata can be understood as something which restrains the either
party to move the clock back during the pendency of the proceedings. The extend of
Res Judicata is very-very wide and it includes a lot of things which even includes Public
Interest Litigations. This doctrine is applicable even outside the Code of Civil
Procedure and covers a lot of areas which are related to the society and people. The
scope and the extend has widened with the passage of time and the Supreme Court has
elongated the areas with its judgments.

Res Judicata does not restrict the appeals process, which is considered a linear extension
of the same lawsuit as the suit travels up (and back down) the appellate court ladder.
Appeals are considered the appropriate manner by which to challenge a judgment rather
than trying to start a new trial. Once the appeals process is exhausted or waived, Res
Judicata will apply even to a judgment that is contrary to law.

There are limited exceptions to Res Judicata that allow a party to attack the validity of
the original judgment, even outside of appeals. These exceptions—usually called
collateral attacks—are typically based on procedural or jurisdictional issues, based not
on the wisdom of the earlier court's decision but its authority or on the competence of
the earlier court to issue that decision. A collateral attack is more likely to be available
(and to succeed) in judicial systems with multiple jurisdictions, such as under federal
governments, or when a domestic court is asked to enforce or recognize the judgment
of a foreign court.

In addition, in matters involving due process, cases that appear to be Res Judicata may
be re-litigated. An example would be the establishment of a right to counsel. People
who have had liberty taken away (i.e., imprisoned) may be allowed to be re-tried with
a counselor as a matter of fairness.

The Doctrine of Res Judicata can be understood as something which restricts either
party to “move the clock back” during the pendency of the proceedings. The extent of
res judicata is wide and it includes a lot of things which even include Public Interest

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Litigations. This doctrine can be applied outside the Code of Civil Procedure and covers
a lot of areas which are related to the society and people. The scope and the extent have
widened with the passage of time and the Supreme Court has elongated the areas with
its judgments.

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