STATE OF U.P. V. NAWAB HUSSAIN AIR, 1977 SC 1680 (SHINGHAL, J.)

STATE OF U.P. V. NAWAB HUSSAIN AIR, 1977 SC 1680 (SHINGHAL, J.)

 

FACTS

• The respondent, a Sub-Inspector, was dismissed from service by DIG on the charge of corruption.
• The appeal by the respondent was dismissed.
• The Respondent then filed a writ in the High Court for quashing the disciplinary proceedings on the grounds that he was not given a reasonable opportunity to be heard and action taken against him was mala fide. However, the High Court dismissed the same.
• Then a suit was filed by the respondent in the civil court on the ground that he was dismissed by an incompetent authority in contravention of Article 311(1) of the Constitution. The trial court, district judge & the High Court concurrently held that the suit was not barred by res judicata and hence the appellant preferred this appeal by a Special Leave Petition.

 

ISSUE

• Whether the dismissal of the writ which arose from the same cause of action, operated as res judicata against a civil suit though with different pleas.

 

HELD

• The Supreme Court allowed the appeal and set aside the judgment of the High Court & parties were directed to bear their own costs. 
• The principle of Res Judicata is based on two theories:
  1. Conclusive judicial decision for finally terminating the dispute in the public interest,
  2. Protecting individual from multiplicity of litigation. And hence it serves both public & private purpose.
• Re-opening an already adjudicated matter and obtaining second judgment for same civil relief on the same cause of action is not permitted. Such prohibition is:
  1. To avoid conflicting judgments of equal authority,
  2. To avoid multiplicity of action,
  3. To not disrepute judicial integrity.
• ‘Cause of action’ gives rise to action and results in a judgment. It must lose its identity & vitality, and merge in the judgment when pronounced. It cannot survive the judgment or give rise to another cause of action on same set of facts.
• In Greenhalgh v Mallard it was observed that Res Judicata is not confined to issues which are actually raised in a suit but also include the issues which are clearly part of the subject matter of litigation and which could have been raised. As otherwise allowing new proceeding on such issues will be an abuse of the court process. [This is constructive res judicata]
• In Devi Lal Modi v Sales Tax Officer, Ratlam (AIR 1965 SC 1150), it was observed that the principle of constructive res judicata postulates that if plea could have been taken by a party in a proceeding, then its not permitted for him to take that plea against the same party in subsequent proceeding based on the same cause of action. And the court held that constructive res judicata also applies to writ petitions.
• It was well within the knowledge of the respondent that the plea of Article 311(1) of the Constitution was an important one which could have been taken up in the writ filed before the High Court but didn’t and contended himself with the pleas of “no reasonable opportunity” and “mala fide action”. Therefore, the respondent was barred in raising the Article 311(1) plea in a subsequent suit.

 

COMMENTARY

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.

The principle of res judicata comes into play not only when the issue has been directly and explicitly decided by the court, but also when such issue has been implicitly and constructively decided. 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 eyes of the law, to avoid multiplicity of litigation and to bring about finality in it is deemed to have been constructively in issue and, therefore, is taken as decided.