The Concept of Constructive Res Judicata on Innocent Plaintiff; Sec. 11 Explanation IV of CPC

by Author

Constructive res judicata is seen as one of the concepts that makes the proceedings in civil matters seemingly smoother. However, there are certain downside of this concept. In this article, we will delve into the effect of constructive res judicata on Innocent plaintiff.

constructive res judicata on innocent plaintiff.

Introduction

The principle of Constructive res judicata is stated in Sec. 11 Explanation IV of CPC, 1908 which states that “Any matter which might and ought to have been made 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.” This means that the court will presume through a legal fiction that when a party do not raise the issue which is important or necessary grounds of defence or attack in a suit then party is deemed to have raised the issue and formally decided.

The principle of Res Judicata in general is a rule of evidence which prohibits the reassertion of a cause of action. This doctrine is based on two theories. Firstly, that the finality and conclusiveness of judicial decision for the final termination of dispute in general interest of public as matter of public policy. Secondly, the interest of the individual that they should be protected from multiplication of litigation.

In this research paper, the researcher will analyze the scope of constructive res judicata and will find out how much the interest of innocent party is protected who had not raised any important plea with genuine beliefs and due-diligence from his side.

The research methodology will be qualitative or doctrinal and based on examining the existing research papers, literature and judgment review. The research hypothesis is that there is no protection given to those who sleeps on his rights which means that the researcher is making hypothesis that “A Subsequent suit is barred by constructive res judicata even if the plaintiff is innocent and have not raised pleas on honest belief.”

Effect of Constructive Res Judicata on Innocent Plaintiff

The concept of res-judicata is to avoid multiplicity of proceeding but the major question arises when a petitioner or plaintiff got wrong legal advice or there is some fact suggesting the innocent mistake of fact, then what will be the scope of constructive res-judicata that can be applied on such innocent plaintiff.

Cases on Constructive Res Judicata

The major question for the applicability of constructive res-judicata where the plaintiff had not raised the issue which ‘might’ or ‘ought’ to be raised in former suit but not raised cannot be subsequently raised in latter suit as held in the case of State of UP v. Nawab Hussain.[1]

In this case, there was a sub-inspector of UP who had been dismissed from service by the DIG of the state, but he was appointed by the IG of the state. He had raised the pleas in former suits that dismissal was on arbitrary ground by not providing him reasonable chance of hearing. Later in the appeal, he raised the plea that he cannot be dismissed by DIG from service as he was appointed by IG under Article 311(1) of the Constitution of India. This matter reached to the supreme court where the court held that the matter of appointment and termination cannot be raised in the latter proceedings as it is barred by constructive res-judicata.

Now, it is interesting to note that law protects right of innocent plaintiff or the other party. When party have two or more cause of action arising from same set of facts. Then, can a party be allowed to file as many as cases on his whims and fancies. On this point, Somervell, L.J. has clarified through, Greenhalgh v. Mallard,[2]:-

“I think that on the authorities to which I will refer it would be accurate to say that res judicata for this purpose is not confined to the issues which the court is actually asked to decide, but that it 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.”
by Somervell, L.J.

Further, In the case of Nawab Hussain, the judgement given by the High Court is that the suit is not barred by res-judicata. The ratio behind the decision of High Court is that they relied on these judgement of Supreme Court L. Janakirama Iyer v. P.M. Nilakanta Iyer [3]; Devilal Modi v. Sales Tax officer, Ratlam [4] and Gulabchand Chhotalal Parikh v. State of Bombay [5] which states that res-judicata can only be applied to those issues which has been raised in earlier writ petition and was decided after contest.

Supreme Court in Nawab Hussian case stated that the view of the Supreme Court was quite an erroneous view on the question of constructive res judicata. Supreme court observed that the view of Supreme Court in Amalgamated Coalfields Ltd. v. Janapada Sabha, Chhindwara,[6] was more rational and appreciable on the point of Constructive res-judicata, in this case court held that the rule of constructive res judicata is also applicable to the writ petitions.

In the case of Devilal Moali, the view of Gajendragadkar, J., was declared into law,

“This rule postulates that if a plea could have been taken by a party in a proceeding between him and the 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, because if the doctrine of constructive res judicata is not applied to writ proceedings, it would be open to the party to take one proceeding after another and urge new grounds every time; and that plainly is inconsistent with consideration of public policy to which we have just referred.”
by Gajendragadkar

In an earlier judgement of Privy Council in Government of the province of Bombay v. Rustomji Adheshir Wadia,[7] the privy council stated that S. 11 Explanation IV, have been subject of numerous decisions, there has not been much of debate regarding the principles themselves. Before a person can be shut out from raising a plea of attack or defence on the ground of constructive res judicata in a subsequent litigation, that plea must have been available to him in the previous litigation and he should have, rather ought to have, raised that plea for his success.

But there are certain grounds of defence which by exercising proper his best care and diligence may not be available to the party. In such cases, principle of res judicata under s. 11 explanation IV uses word ‘might’ that means that person might have raised. It is absolutely impossible to say that a person might have put forward the plea even though he was absolutely ignorant of it.

If there are three or more contention available to the party and the party does not raise one of the contentions as it will affect their side of argument in such cases party are prevented to raise those issues in the subsequent suit.

Therefore, it can be said that there is no protection of rights of those people who sleeps on their rights and do not exercise due care and diligence even if they are in innocent mistake of the fact. They cannot be allowed to file further suit as it would be against the public policy and defeat the process. Therefore, the view of Marginson v. Blackburn Borough Council[8] on purpose of res-judicata stand tall where the King’s Bench stated the principle of estoppel per rem judicatam is a rule of evidence which means that “the broader rule of evidence which prohibits the reassertion of a cause of action”.

In country like India, where people are dependent on their counsel to file case on their behalf. So, it is expected from the counsel that they must be having ordinary skills which are necessary for profession. They have to raise all the pleas which are available to them. There is no point in saving the pleas which may be disadvantageous to the client but later became advantageous. Firmly adding, the principle is based on public policy. Also, no conclusion can be reached ever if party raises their pleas in different suits.

Conclusion

The researcher after analyzing the judgement of Supreme Court and Privy council in several matters comes to the conclusion that the principle of constructive res judicata serves an essential function in the society. It prevents the multiplicity of suit and bars both the parties to reassert the same cause of action which they might or ought to have raised in the former suit.

The scope of constructive res judicata covers everything which ‘might’ or ‘ought’ to known to the parties. The usage of both the words makes it absolutely clear that the person who is approaching to the court must come fully prepare of all his claims because later he cannot file different suit for the grounds which has not raised by him.

The hypothesis of the researchers is correct, there is no protection given to those who does not take reasonable care and diligence while filing a civil suit. As all the civil suits in India are filed on behalf of a client, it is the necessity that client assert all the facts to their counsel and if not, it is presumed in law that the matter is already decided.

Legal SYNK