The rule of constructive res judicata in Section 11 of the Civil Procedure Code is an artificial form of res judicata. It provides that if a plea has been taken by a party in a proceeding between him and the defendant he will not be permitted to take pleas against the same party in the following proceeding with reference to the same matter. It is opposed to public policies on which the principle of res judicata is based. It would mean harassment and hardship to the defendant. The rule of constructive res judicata helps in raising the bar. Hence this rule is known as the rule of constructive res judicata which in reality is an aspect of augmentation of the general principles of res judicata.
Explanation IV of Section 11 says that any matter which might or ought to have been made ground of defence or attack in a former suit shall be deemed to have been a matter constructively in issue in that suit.
Constructive means to be well within knowledge or that the party is well presumed to have a particular fact in its mind at a particular point of time.
The Supreme Court while discussing the scope of the words “might” and “ought” as laid down in Explanation IV of section 11, observed in case of Forward Construction v. Prabhat Mandal[i] that
The words ‘might’ and ‘ought’ have wide amplitude. The word ‘might’ conveys the idea of possibility of joining all grounds of attack or defence, while the word ‘ought’ carries the idea of propriety of so joining. An alternative basis on which a claim can be sustained should be set up in any suit to enforce the claim, when it is not set up, the basis omitted in the prior suit should not be allowed to sustain the second suit. The ‘test’ is whether the parties had an opportunity of controverting it and, if they had, the matter will be treated as actually controverted and decided.
Another important case on constructive “Res judicata” is of State of Uttar Pradesh v. Nawab Hussain[ii] , In this case M was a sub-inspector and was dismissed from the service of D.I.G. he challenged the order of dismissal by filing a writ petition in the High Court. He said that he did not get a reasonable opportunity of being heard before the passing of the order. However, the argument was negatived and the petition was dismissed. He again filed a petition on the ground that he was appointed by the I.G.P. and had no power to dismiss him. The defendant argued that the suit was barred by constructive res judicata. 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 Supreme Court held that the suit was barred by constructive res judicata as the plea was within the knowledge of the plaintiff, M and he could have taken this argument in his earlier suit.
Allowing the appeal and after considering all the leading cases on the point, the court held that the plea was clearly barred by the principle of constructive “Res judicata” as such plea was within the knowledge of the police S.I. and it could have been taken in the writ petition but was not taken at that time. It was observed by Supreme Court:
“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, in issue and therefore, is taken as decided.”
The same thing applies to the defendant. He cannot raise such grounds of defence in the subsequent suit which might and ought to have been raised in the former suit. A files a suit against B to recover money on a promissory note. B contended that the promissory note was obtained from him by undue influence. The suit is decreed in spite of his objection. The defendant subsequently wants to challenge the promissory note by fresh suit on the ground of fraud and coercion. This he cannot do as it was his duty to have resisted the former suit on the ground of fraud and coercion as well.
An adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had it decided as incidental to or essentially connected with the subject-matter of the litigation and every matter coming within the legislative purview of the original action both in respect of the matters of claim or defence. It is true that where a matter has been constructively in issue it cannot be said to have been actually heard and decided. It could only be deemed to have been heard and decided. The words ‘might’ and ‘ought’ have wide amplitude. The word ‘might’ conveys the idea of possibility of joining all grounds of attack or defence ‘ought’ carries the idea of propriety of so joining. An alternative basis on which a claim can be sustained should be set up in any suit to enforce the claim. When it is not set up, the basis omitted in the prior suit should not be allowed to sustain the second suit. The ‘test’ is whether the parties had an opportunity of controverting it and, if they had, the matter will be treated as actually controverted and decided.[iii]
The principles of constructive res judicata applies to writ petition.[iv]
[i] Forward Construction v. Prabhat Mandal AIR 1986 SC 391.
[ii] State of Uttar Pradesh v. Nawab Hussain (1977) 2 SCC 806.
[iii] Supra N.i.
[iv] Nagabhushana v. State of Karnataka AIR 2011 SC 1113.