Does the principle of Constructive res judicata apply to writ proceedings? Give reasons in support of your answer and also refer to case law, if any on the point.

Question: Does the principle of Constructive res judicata apply to writ proceedings? Give reasons in support of your answer and also refer to case law, if any on the point.

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Answer

Rule of constructive res judicata is engrafted in explanation IV to section 11 of the Code is an artificial form of res judicata and provides that if a plea could have been taken by a party in a proceeding between him and his opponent, he should not be permitted to take that plea against the same party in a subsequent proceeding with reference to the same subject matter.

Its object is to compel the plaintiff or the defendant to put forward all grounds of attack or defence that are available and of which he is aware at the time when the said former suit is filed or written statement is submitted. The rule of constructive res judicata was first applied in the State of U.P v. Nawab Hussain, AIR 1977 SC 1680.

Issues involved in this case were-

1. 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 and
2. Whether the principle of constructive res judicata also applies to the writ petition under Article 32 and 226?

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 that 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.”

Finally, Court held that in this case, the respondent ought to have taken all the grounds and that it was an important plea that was within the knowledge of the respondent and could well have been taken in the writ petition.

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.

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