Distinguish between Res judicata and Constructive Res judicata. Also, explain... constructive res judicata......

Question: Distinguish between Res judicata and Constructive Res judicata. Also, explain the provisions of constructive res judicata in Civil Procedure Code, 1908. [JJS 2018]

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Answer

Constructive Res Judicata:-

Explanation IV of Section 11 of the Civil Procedure Code (CPC) introduces the concept of 'constructive res judicata.' The explanation was added to Section 11 with the legislative intention of preventing litigants from re-litigating the issues that could and should have been raised by them in a previous suit. This prevents multiplicity of judicial proceedings against a person when an issue could have been raised at a previous suit filed against the same defendant.

As the name suggests, the doctrine of Constructive res judicata is an extension of the doctrine of res judicata and bars not only matters that were previously decided in a suit but also bars those matters that could have been raised and decided in the previous suit itself. The mandatory requirement for invoking the doctrine of Constructive res judicata is that the plaintiff must show that the issue in hand was something that the litigant could have raised (might) and should have raised (ought) during the earlier proceedings.

The concept of 'might and ought' was elaborated by Justice Untwalia in the landmark case of Baijnath Prasad Sah v. Ramphal Sahni, AIR 1962 Pat 72. The relevant excerpt from the judgment is herein provided below:-

“If a party takes an objection at a certain stage of a proceeding and does not make another objection which it might and ought to have taken at the same stage, it must be deemed the Court has adjudicated upon the other objection also and has held against it. This principle of constructive res judicata has been extended further.

If a party has knowledge of a proceeding, and having had an opportunity when it might and ought to have raised an objection, it does not do so, it cannot be allowed to raise that objection subsequently, if the Court passes an order which it could not have passed in case that objection had succeeded, on the ground that it must be deemed to have been raised by the party and decided against it. Though a transaction is void if a certain provision of law applies, it is for the court to decide whether that provision is applicable.

Once a competent court has given a decision, holding expressly or by implication, that provision of law is inapplicable and the transaction is not void, that decision operates as res judicata between the parties. So also if an order of the court is deemed to have decided the question, the order is binding upon the parties.”

This explanation laid down in the aforesaid case underscores that the decision of the court, be it explicit or by necessary implication, prevents the re-litigation of any issues that could have been raised at a previous suit.

There are certain situations when this doctrine can be invoked. Let us briefly discuss them one by one:-

1. Wilful Act: If a litigant objects to a particular issue at a certain stage of the proceedings but fails to object to another similarly situated issue that they could and should have raised at that time.

2. Tacit or Implicit Act: If a litigant is aware of the proceedings and has the opportunity to raise a specific objection but chooses not to, that is considered to be a tacit or implicit failure on their part to raise the objection at the appropriate time.

3. Specific Findings: The general rule as per doctrine of res judicata states that there must be a specific and express finding on an issue in the previous suit but constructive res judicata is an exception to this rule and can be applied even beyond explicit findings. Explanation IV of Section 11 emphasizes that res judicata can be deemed based on necessary implications.

In Nikunja Behari Das v. Jatindra Nath Kar (AIR 1956 Cal 613), it was held that:

“A decision by necessary implication is as much res judicata as an express decision. That this is so in the case where Explanation IV of S. 11, Civil Procedure Code, has to be considered, there can be no doubt, but even in other cases where a matter has been raised in the pleadings but there is no express decision but there is a decision by necessary implication, the Courts have always held that the principle of res judicata is applicable.”

The aforesaid findings by the Hon’ble Court indicate that the principle of res judicata can be applied even when the findings are implicit, provided the issues were raised in the pleadings.

Distinguish Between Res Judicata and Constructive Res Judicata

1. Definition:

Res Judicata: Res judicata is defined under Section 11 of the Civil Procedure Code. Res judicata is a doctrine that prevents the re-litigation of matters already adjudicated in previous legal proceedings. The Latin phrase "Res Judicata" literally means "a matter adjudged" or a "dispute decided." This doctrine suggests that if either of the parties in a case approaches the same court for the judgment on the same issue then the suit will be barred by this doctrine.

Constructive Res Judicata: Constructive res judicata, explained under Explanation IV of Section 11 CPC, extends the concept of res judicata to matters that could have been raised and decided in the earlier litigation but were not. The doctrine itself is based on public policy flowing from the age-old legal maxim interest reipublicae ut sit finis litium which means that in the interest of the State there should be an end to litigation and no party ought to be vexed twice in a litigation for one and the same cause.

2. Scope of Application:

Res Judicata: Applies to issues that have been expressly or directly adjudicated upon by a competent court. It concerns the actual decisions rendered in previous suit.

Constructive Res Judicata: Applies to issues that were not expressly adjudicated but should have been raised and could have been adjudicated in the previous suit. It concerns potential claims or defences that the plaintiff failed to raise in the previous suit.

3. Basis of the Doctrine:

Res Judicata: The doctrine is based on the principle of finality of judgments, ensuring that a final decision by a competent court is conclusive and binding on the parties involved.

Constructive Res Judicata: The doctrine is based on the principle of judicial efficiency and preventing abuse of the judicial process by ensuring that parties bring their entire case forward in the initial litigation.

4. Judicial Interpretation:

Res Judicata: Requires a direct adjudication by a court. For instance, a judgment or decree that specifically addresses the matter in dispute and provides a final decision. Example: If a court has already adjudicated upon the ownership of a house in a previous suit between brothers A and B, A cannot bring another suit against B for the same suit property on the same grounds.

Constructive Res Judicata: Does not require direct adjudication but focuses on whether the matter could and should have been raised in the previous suit. For example, if a party could have raised a particular issue in the first suit but failed to do so, they are barred from raising it in subsequent suits. Example: If A sues B for breach of contract but fails to raise a related issue of misrepresentation that could have been raised in the same suit, A is barred from raising the claim of misrepresentation in a subsequent suit against B.