LexSTATE OF UTTAR PRADESH versus NAWAB HUSSAIN
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B c D E F G H 428 STATE OF UT_TAR PRADESH v. NAWAB HUSSAIN April 4, 1977 (Y. V. CHANDRACHUD, P. K. GOSWAMI AND P. N. SHINGHAL, JJ.] . Constr1~ctive res j~di'cata-M~tter which might or ought to have been raised in a!z earlter proceeding not ra1sed-lf principle of constructive res judicata applicable. in a Writ jjeti'tion filed under Art. 226 of the Constitution impugning bis dismissal from service, the respondent contended that since he had not been given a reasonable opportunity of meeting the allegations against him, his dis- missal was void. The writ petition was dismissed. Thereupon, the r.espondent filed a suit in a civil cou~t challenging his dismissal on the ground, among others, that since he had been appointed by the Inspector-General of Police, his dismis- sal by the Deputy Inspector Gene-ral of Police was wrong. The State took the plea that the suit was barred by res-iudicata. Dismissing th~ 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 res-judicata 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 Bo1nbay [19651 2 SCR 547, and allowed the respondent's appeal. Allowing the State's appeal to this Court, HELD : The High Court was \Vrong in its vie\V because the la\v 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 G ulabchand'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 <liisputes in the general interest of the community as a matter of public policy, and (ii) the interest of the inaividual that he should be protected from multiplication of litigation. [430 DJ 2. (a) In certain cases, the same set of facts may give rise to two or more causes of action. In such cases res-judicata 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 sometim~_s be!_!l ~ferred to as constructive res·iudicata 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 A1nalr:ama1ed COalfields Ltd. and others v. lanapada Sabha, [1962] I S.C.R. 1 this Court held that constructive res-iudica!a being a special and artificial form of res-judicata should n?t generally. be applied to v.:nt petitions, in Devilal. Modi's this Court held that if the doctrine of constructive • u. P. v. NAWAB HUSSAIN (Shinghal, J.) 429 res-judicata was not applied to writ proceedings, it would be open to a party to take one procee'ding after another and urge new grounds every time, which was plainly inconsistent with considerations of public policy. The principle of con- structive res-judicata was, therefore, held applicable to writ petitions as well. [433 G & 434 DJ 3. The High Court missed the significaIJce of these decisions and relied upon L.
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