State of Uttar Pradesh Vs. Nawab
Hussain [1977] INSC 104 (4 April 1977)
SHINGAL, P.N.
SHINGAL, P.N.
CHANDRACHUD, Y.V.
GOSWAMI, P.K.
CITATION: 1977 AIR 1680 1977 SCR (3) 428 1977
SCC (2) 806
CITATOR INFO:
R 1978 SC1283 (11)
ACT:
Constructive res Judicata--Matter which might
or ought to have been raised in an earlier proceeding not raised--If principle
of constructive res judicata applicable.
HEADNOTE:
In a writ petition filed under Art. 226 of
the Constitution impugning his dismissal from service, the respondent contended
that since he had not been given a reasonable opportunity of meeting the
allegations against him, his dismissal was void. The. writ petition was
dismissed.
Thereupon, the respondent flied a suit in a
civil court challenging his dismissal on the ground, among others, that since
he had been appointed by the Inspector-General of Police, his dismissal by the
Deputy Inspector General of Police was wrong. The State took the plea that the
suit was barred by res-judicata. Dismissing the suit, the trial court held that
it was not barred by res-judicata. The first appellate court dismissed the
respondent's appeal.
Purporting to follow a line of decisions of
this Court, the High Court held that only that issue between the parties would
be res-judicata which was raised in the earlier writ petition and was decided
by the High Court after contest and since in this case the respondent did not
raise in the earlier writ petition the plea of competence of the Deputy
Inspector General of Police to dismiss him. the parties were never at issue on
it and that the High Court never considered and decided this issue in the writ
petition. On the question of invoking the principle of constructive resjudicata
by a party to the subsequent suit on the ground that the matter might or ought
to have been raised in the earlier proceedings, the High Court held that this
question was left open by the Supreme Court in Gulabchand Chhotalal Parikh v.
State of Bombay [1965] 2 SCR 547, and allowed the respondent's appeal.
Allowing the States appeal to this Court.
HELD: The High Court was wrong in its view
because the law in regard to the applicability of the principle of constructive
res-judicata having been clearly laid down in Devi Lal Modi v. Sales Tax
Officer Ratlam and Others [1965] 1 S.C.R. 686 it was not necessary to reiterate
it in Gulabchand's case as it did not arise for consideration in that case. The
clarificatory observation in Gulabchand's case was misunderstood by the High
Court in observing that the matter had been left open by this Court. .[435 G]
1. The doctrine of res-judicata 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. [430 D]
2. (a) In certain cases, the same set of
facts may give rise to two or more causes of action. In such cases resjudicata
is not confined to the issues which the Court is actually asked to decide but
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. This rule has sometimes been referred to as constructive res-judicata
which is an aspect or amplification of the general principle. [431 A] (b)
Section 11 of the Code of Civil Procedure, with its six explanations, covers
almost the whole field, but the section has, in terms, no application to a
petition for the issue of a high prerogative writ. [431 D] (c) Although in the
Amalgamated Coalfields Ltd. and others v. Janapada Sabha, [1962] 1 S.C.R. 1
this Court held that constructive res-judicata being a special and artificial
form of res-judicata should not generally be applied to writ petitions, in
Devilat Modi's this Court held that if the doctrine of constructive 429
res-judicata was not applied to writ proceedings, it would be open to a party
to take one proceeding after another and urge new grounds every time, which was
plainly inconsistent with considerations of public policy. The principle of
constructive res-judicata was, therefore, held applicable to writ petitions as
well.
[433 G & 434 D]
3. The High Court missed the significance of
these decisions and relied upon L. Jankirama lyer and 'Others v.P.M. Nilakanta
lyer and Others [1962] Supp. 1 S.C.R. 206 which had no bearing on the controversy.
In Gulabchand's case, this Court observed that it did not consider it necessary
to examine whether the principle of constructive res-judicata could be invoked
by a party to the subsequent suit oft the ground that a matter which might or
ought to have been raised in the earlier proceeding but was not so raised
therein could be raised again relying on which the High Court concluded that
the question was left open by this Court. This in turn led the High Court to
hold that the principle of resjudicata could not be made applicable to a writ
petition. [435 E-F] In the instant case, the respondent did not raise the plea
that he could not be dismissed by the Deputy Inspector General of Police. This
was an important plea which was within his knowledge and could well have been
taken in the writ petition. Instead he raised the plea that he was not afforded
a reasonable opportunity of meeting the case in the departmental inquiry. It
was therefore not permissible for him to take in the subsequent suit the plea
that he had been dismissed by an authority subordinate to that by which he was
appointed. That was clearly barred by the principle of constructive
res-judicata and the High Court erred in taking a contrary view. [436 A-B]
CIVIL APPELLATE JURISDICTION:CiVil Appeal No.
2339 of 1968.
(Appeal by Special Leave fro.m the Judgment
and Order dated the 27-3-1968 of the Allahabad High Court in Second Appeal No.
2352 of 1963).
G.N. Dikshit, and O.P. Rana, for the
appellant.
E.C. Agrawala, for the respondent.
The Judgment of the Court was delivered by
SHINGHAAL, J. 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 Superintendent
of Police on February 25, 1954. 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,' 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. 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 430 in the writ petition and special
appeal." 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. 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. The
appellant State of Uttar Pradesh has therefore come up in appeal to this Court
by special leave.
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. As we
have 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. As has been stated in Marginson v. Blackburn Borough
council,(1) it may be said to be "the broader rule of evidence which
prohibits the reassertion of a cause of action." This doctrine 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 indidual that he should
be protected from multiplication of litigation. 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. 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. 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. 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 and Somervell L.J., has answered it as follows in Greenhalgh v.
-Mallard(2) .-"I think that on the authorities to which I will refer it would
be accurate to say that res judicata for this purpose is (1) [1939] 2 K.B. 426
at p. 437.
(2) [1947] 2 All. E.R. 255 at p, 257.
431 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." 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.
These simple but efficacious rules of
evidence have been recognised for long, and it will be enough to refer' to this
Court’s decision in Gulabchand Chhotalal Parikh v. State of Bombay(1) 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. 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.
Reference in this connection may be made to Ex Parte Thompson(2). There A.J.
Stephens moved for a rule calling upon the authorities concerned to show cause
why a mandamus should not issue. He obtained a rule nisi, but it was discharged
as it did not appear that there had been a demand and a refusal. He applied
again saying that there had been a demand and a refusal since then. Lord Denman
C.J., observed that is Stephens was making an application which had already
'been refused, on fresh materials, he could not have "the Same application
repeated from time to time" as they had "often refused rules" on
that ground. The same view has been taken in England in respect of renewed
petition for certiorari, quo warranto and prohibition, and, as we shall show,
that is also the position in this country.
We find that the High Court in this case
'took note of the decisions this Court in L. Janakimma lyer and others v.P. M.
Nilakanta lyer and others(3), Devilal Modi v. Sales Tax Officer, Ratlam and
others(4) and Gulabchand Chhotalal Parikh v. State of Bombay (supra) and
reached the following conclusion :-"On a consideration of the law as laid
down by the Supreme Court in ,the above three eases 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.
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. I think it is
competent for the plaintiff to raise such a plea in the subsequent 'suit and
bar of res judicata will not apply." We have gone through these cases.
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.
The High Court then proceeded to consider
this Court's decisions in Devilal Modi's case (supra) and Gulabchand's case
(supra). Gulabchand's was the later of these two cases.
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. 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. The learned
Judges took care to 433 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." As we shall show, that was quite an
erroneous view of the decision of this Court ,on the question of constructive
res-judicata. It will help in appreciating the view of this Court correctly if
we make a brief reference to the. earlier' decisions in Amalgamated Coalfields
Ltd. and others v.
Janapada Sabha, Chhindwara(1) and Amalgamated
Coalfields Ltd. and another v. Janapada Sabha, Chhindwara,(2) which was also a
case between the same parties. 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 allowed by this Court and the writ
petitton 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
petitions 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. We would be reluctant to apply this principle
to the present appeals all the more because we are dealing with cases where the
impungned tax liability is for different years." 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).
Gajendragadkar, J. who had spoken for the
court in the second case of Amalgamated Coalfields Ltd. spoke for the Court in
that case also. The (1) [1962] 1 S.C.R. 1. (2) [1963]. Supp. 1. S.C.R. 172.
434 petitioner in that case was assessed to
sales tax and filed a writ petition to challenge the assessment. The petitionwas
dismissed by the High Court and he came in appeal to this Court. He sought to
make some' additional contentions in this Court, but was not permitted to do
so.. He. therefore filed another writ petition in the High Court raising
,those' additional contentions and challenged the order of assessment for the
same year. The High Court dismissed the petition on merits, and the case came
up again to this Court in appeal. The question which specifically arose for
consideration was whether the principle of constructive res judicata was
applicable to writ petitions of that kind.
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 party in a procceding between him and his opponent, he would not b0
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 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." While taking that view,
Gajendragadkar C.J., tried to explain earlier decision in Amalgamated Coalfields
Ltd. v.
Janapada Sabha, Chhindwara(1) and
categorically held that the principle of constructive res judicata was
applicable to writ petitions also. As has been stated, that 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 lyer
(supra) and Gulabchand's ease (supra). 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.
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." (1) [1963] Supp. 1 S.C.R. 172.
435 He made a reference to the decision in
Daryao and others v. The State of U.P. and others(1) on the question of res
judicata and the decisions in Amalgamated Coalfields Ltd. and others v.
Janapada Sabha, Chhindwara(2) 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
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." 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." 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. 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.
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 (1) [1962] 1 S.C.R. 574. (2) [1963] Supp. 1 S.C.R.172 436 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.
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.
P.B.R. Appeal allowed.
436SCI/77--2500--12-10-77 GIPF.
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