Res judicata
Querist :
Anonymous
(Querist) 18 December 2011
This query is : Resolved
What is constructive Res Judicata ?
Advocate. Arunagiri
(Expert) 18 December 2011
Please avoid these types of academic queries, if you have real problems come and discuss.
prabhakar singh
(Expert) 18 December 2011
In Daryao vs. State of UP {AIR 1961 SC 1457}, the Constitution Bench of the Supreme Court pointed out that though the rule of res judicata, as indicated in Section 11 of the Code of Civil Procedure, has some technical aspects, such as the aspect of constructive res judicata, the basis on which the rule rests, is founded on considerations of public policy. Two principles viz., (i) that finality should attach to binding decisions of Courts and (ii) that individuals should not be vexed twice over the same kind of litigation, were held to form the foundation of the general rule of res judicata. Therefore, the Supreme Court pointed out that the rule of res judicata cannot be treated as irrelevant or inadmissible even in dealing with fundamental rights in petitions under Article 32. Quoting from Corpus Juris, the Supreme Court pointed out that "res judicata is a rule of universal law pervading every well regulated system of juris prudence and is put upon two grounds, embodied in various maxims of the common law; the one, public policy and necessity, which makes it to the interest of the State that there should be an end to the litigation - interest republicae ut sit finis litium; the other, the hardship on the individual that he should be vexed twice for the same cause - nemo debet bis vexari pro eadem causa.
Following the said decision in Daryao, another Constitution Bench pointed out in Amalgamated Coalfields Ltd vs. Janapada Sabha {AIR 1964 SC 1013}, that constructive res judicata, which is a special and artificial form of res judicata enacted by Section 11 of the Code of Civil Procedure, should not generally be applied to writ petitions filed under Article 32 or 226. However, the said decision was distinguished by another Constitution Bench in Devilal Modi vs. Sales Tax Officer, Ratlam {AIR 1965 SC 1150}, wherein the Court pointed out that if constructive res judicata is not applied, a party can file as many writ petitions as he likes and take one or two points at every time and that to permit the same, would be opposed to considerations of public policy on which res judicata is based.
Again in Virudhunagar Steel Rolling Mills Ltd vs. Government of Madras {AIR 1968 SC 1196}, another Constitution Bench explained the ratio in Daryao, by holding that even where notice might not have been issued by the High Court and the writ petition dismissed in limine, the question whether such dismissal would bar a petition under Article 32 would depend upon the nature of the order. Consequently, the Court held that where a writ petition was dismissed without notice to the other side, but by a speaking order, that would still amount to res judicata. Explaining the ratio in Daryao, the Court pointed out in para 6 that once a writ petition is decided on merits by a speaking order, it is immaterial whether notice was issued to the other side or not before such a decision was given and that the bar arises not because of the issue of the notice, but because of the disposal of the petition on merits by a speaking order.
In Hoshnak Singh vs. Union of India {1979 (3) SCC 135}, the Supreme Court traced the law laid down in Daryao, which was later explained in Virudhunagar Steel Rolling Mills and subsequently followed in Tilokchand Motichand vs. H.B.Munshi {1969 (1) SCC 110} and P.D.Sharma vs. State Bank of India {AIR 1968 SC 985} and held that when a subsequent writ petition is filed against an order passed in a petition availing the alternative remedy, the bar of res judicata would not apply. In paragraph 10, the Court pointed out that the second writ petition cannot be dismissed simply on the ground that the challenge to the order of the revisional authority, cannot be treated as a challenge to the original order, so as to reject the writ petition on the ground of res judicata.
In Workmen vs. Board of Trustees of the Cochin Port Trust {1978 (3) SCC 119}, the Supreme Court held that the principle of res judicata also comes into play when a decision on a particular issue is implicit in a judgment, since in such cases it must be deemed to have been necessarily decided by implication. Dealing with this aspect, it was further held as follows:- "But the technical rule of res judicata, although a wholesome rule based upon public policy, cannot be stretched too far to bar the trial of identical issues in a separate proceeding merely on an uncertain assumption that the issues must have been decided. It is not safe to extend the principle of res judicata to such an extent so as to found it on mere guesswork.
Querist :
Anonymous
(Querist) 25 December 2011
Thank you Mr.Prabhakar Singh sir.
