Constructive Res Judicata

 

Constructive Res Judicata

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. 

In the case of State of Uttar Pradesh Versus Nawab Hussain, 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.