School of Law

BBA.LLB
7th Semester
State of UP
Vs
Nawab Hussain

Submitted by: Aayush Soni

Submitted to: Asst. Prof. Ms. Garima Lakhmani

Crux:

Parties:

Appellant- State of UP

Respondent- Nawab Hussain

Subject: State of UP vs Nawab Hussain case dealt with whether a decision of the High Court on
merits on a certain matter after the contest, in a writ petition under Article 226 of the Constitution,
operates as res judicata in a regular suit regarding the same matter between the same parties.

Appeal by the State of UP before the Supreme Court through Special Leave Petition under Article-
136 of the Constitution. Leave was granted
Facts of the Case

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.

He then filed a civil suit before the court of civil judge. His contentions were that the Inspector General
of Police appointed him and the DIG did not have the power to dismiss him from the service as the
DIG was not the appointing authority but was an authority subordinate to IG Police, who appointed
him. He argued that his dismissal falls foul of Article 311 (1) of the Constitution of India.

Article-311 (1) reads as: No person who is a member of a civil service of the Union or an all-India
service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed
or removed by an authority subordinate to that by which he was appointed.

The State of UP repelled his contentions on grounds of constructive res judicata as laid down by
Explanation-IV to SECTION11, CPC, 1908. The state argued, “That 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”.

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 State of UP filed an SLP before the Supreme Court.

RELEVANT ISSUES

Whether the second suit filed by the respondent was barred by the principle of constructive res
judicata on the ground that a plea which might and ought to have been raised in the earlier
proceeding but was not so raised therein.

Whether the principle of constructive res judicata was applicable to writ petitions under articles 32
and 226 of the Constitution?
Judgement

Supreme Court allowed the appeal and set aside the judgement of High Court. It observed that: -

“When any matter which might and ought to have been made a ground of defense or attack in a
former proceeding but was not so made, then such a matter in the eye of law to avoid multiplicity
of litigation and to bring finality in it, is deemed to have bee to have been constructively taken as
decided.”

The principle of constructive res judicata was an important plea which was within the knowledge
of the respondent and could well have been taken in the writ petition, but he contended 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 of constructive res judicata and 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.

Gajendragadkar J. observed that the rule of constructive res judicata “in a sense a somewhat
technical artificial rule prescribed by the code. This rule postulates that 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
that plea against the same party in a subsequent proceeding which is based on the same cause of
action. It was categorically held that the principle of constructive res Judicata was applicable to
writ petitions also.”

In the case of 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 vs Sales tax officer 1964 SC the Apex Court held that if the doctrine of
constructive 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.
ANALYSIS OF LEGAL RELEVANT PROVISIONS INVOLVED

Section 11 of Civil Procedure Code, 1908 officially quotes about res judicata. Res judicata states,
any matter that has been adjudged by a competent/equal court is not to be further pursued by the
same parties under the same title. The simpler explanation of the concept of res judicata is, it bars
the petitioners to file any suit or petition on the same matter of issues or grounds, bearing the name
of the same parties and before the court possessing the same authority and jurisdiction.

THREE MAJOR COMPONENTS ALTOGETHER CONSTITUTE THE VERY CONCEPT OF

RES JUDICATA:

Exceptio res judicatae: It states that one suit/proceeding or one decree of any court is sufficient
enough for a matter

Nemo debetn vexari pro una eadam causa: No person shall be vexed frequently for the same cause.

Interest republicae ut sit finis litius. It is good for state that litigation should be brought to an end.

ESSENTIALS OF RES JUDICATA

There must be some pre-requisites or essentials that ought to be present for res judicata to be
applied. They are as follows:

Parties should be the same. The title should be the same.

Matter in issue should be the same.

The former suit must be heard and decided.

The former court must be competent to try the subsequent matter.

CONSTRUCTIVE RES JUDICATA

As a general matter of fact, the codification of the doctrine of res judicata is mentioned in section
11 of CPC, 1968 and appears in relation to civil suits. The rule of constructive res judicata is talked
about in the "Explanation IV of section 11 of Civil Procedure Code and in several matters coming
before the court, the court not only has applied this doctrine directly but also have preferred the
application of the rule of constructive res judicata

Explanation IV: Any matter which might and ought to have been made the ground of defence or
attack in such former suit shall be deemed to have been a matter directly and substantially in issue
in such suit.

It means when any point of issue that could have been mentioned as a ground of contention or
defence in the former suit but if the concerned party has failed to mention it (in former
proceedings), then it must be labelled as heard and adjudged.

Illustration. A files a suit against B and claims that he is entitled to certain lands as an heir of C.
The suit is rejected by the court. A files a subsequent suit against B on grounds of adverse
possession. A is barred to file such a suit according to constructive res judicata because A ought
to have taken the ground of adverse possession in the previous suit.
CASE ANALYSIS

This was the first case where constructive res judicata was applied in India where the Apex Court
stated that the issue which Nawab Hussain has brought up in the subsequent suit filed in the civil
court might or ought to have been mentioned in the former suit.It was held that when any matter
which might and ought to have been made a ground of defence or attack in a former proceeding
but was not so made, then such a matter in the eye of law to avoid multiplicity of litigation and to
bring finality in it, is deemed to have been constructively decided."

It was therefore, not permissible for Nawab Hussain 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. When previously he made contention that he was not afforded a reasonable
opportunity to meet the allegations against him and the action taken against him was mala fide.

He would have taken plea of this contention in his former suit when he was given proper hearing
at that fact was within his knowledge that it could have been used as defense he knowingly did not
take such plea in former suit but in subsequent suit. This was clearly barred by the principle of
constructive res judicata.

Another question was whether the principle of constructive res judicata was applicable to petitions
under articles 32 and 226 of the Constitution?

SC looked in the case of Amalgamated Coalfields Ltd. and others v. Janapada Sabha where
supreme court interpreted constructive res judicata in case of writ petitions under this case there
was a matter related to coal tax for which plaintiff filed writ which was dismissed, then again in a
subsequent suit another writ was made related to levy of coal tax then through SLP matter was
stated in supreme court, the court observed that Res judicata will be applicable but Constructive
Res Judicata will not be applicable being a special and artificial form of res-judicata should not
generally be applied to writ petitions.

Another case in Devilat Modi vs Sales tax officer 1964 SC the Apex Court held that if the doctrine
of constructive 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.