SUBMITTED BY: Aparna Goswami

ROLL NO: 84
SECTION B
BALLB
SEMESTER:7
.
SUBMITTED TO: Dr Karan Jawanda

Res Judicata and

State of UP v Nawab
Hussain 1977
An immersive project giving
detailed explanantion of practical
aspects of Res Judicata and
understanding it in the light of the
case of State of UP v Nawab
Hussain.

aparnagoswami19@gmail.com
ACKNOWLEDGEMENT

I would like to express my sincere gratitude to Dr. Karan Jawanda for providing her able
guidance throughout the execution and completion of this project. I would also like to thank
her for providing me with the opportunity to understand more about the intricacies of the
legal application of the principle of Res Judicata and understanding it with respect to the case
of “State of U.P. v. Nawab Hussain, 1977.”

Aparna Goswami

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CONTENTS

❖ RES JUDICATA

1. Introduction and meaning

2. Objectives

3. Extent and applicability

4. Scope of Section 11

5. Conditions in Res Judicata

• Matter in issue

• Same parties

• Same title

• Competent Court

• Heard and finally decided

❖ STATE OF UP V NAWAB HUSSAIN

1. Facts

2. Legal Issue

3. Arguments from both sides

4. Decision of court

5. Critical Analysis

❖ Bibliography

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RES JUDICATA SECTION 11 OF CIVIL PROCEDURE CODE 1908

Introduction and Meaning:

Res Judicata is a phrase which is defined in Section 11 of the Civil Procedure Code has been
evolved from a Latin maxim, which stands that the thing has been judged which means if an
issue is brought in the court and it has already been decided by another court, between the same
parties and which has the same cause of action then the court will dismiss the case before it as
being useless. The concept of Res Judicata has high significance both in Civil and Criminal
System.
Provision of Section 11 of the enacts that once a matter is finally decided by a competent court,
no party can be permitted to reopen it in subsequent litigation. The basic objects and operation
of Section 11 was rightly pointed and observed by the Supreme Court in the case of Satyadhan
Ghosal vs. Deorajin Debi.
The Principle of Res-Judicata is based on the meet of giving finality to judicial decisions, what
it says is that once a res judicata, it shall not be adjudicated again. Primarily, it applies as
between past litigation and future litigation, on the basis of the question of facts or the question
of law- has been decided between the two parties in one suit or proceeding and the decision is
final, either because no appeal was taken to a higher court or because the appeal got dismissed,
or no appeal lies, neither party will be allowed for the execution of future suit or proceedings
between the same parties to canvas the matter again.
If we breakdown the words of Res Judicata, here the word Res means a subject matter or dispute
between the parties and the other word Judicata means adjudged or decided or adjudicated, that
is the matter is adjudicated or a dispute is decided.

Objectives of Res Judicata:

This doctrine is based on three maxims which are as follows:
• Nemo debt bis vexari pro una et eadem causa which means no man should be vexed
twice for the same cause;
• Interest reipublicae ut sit finis litium which means it is in the interest of the State there
should be an end to a litigation; and
• Res judicata pro veritate occipitur which means judicial accepted as correct.

Extent and Applicability:

The doctrine of res judicata is a fundamental concept based on public policy and private
interest. This doctrine is applicable to civil suits, execution proceedings, arbitration
proceedings, taxation matters, industrial adjudication, writ petitions, administrative orders,
interim orders, criminal proceedings, etc. Thus, this doctrine is not exhaustive in nature.

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Principle and Scope of Section 11:
The rule of Res judicata is intended not only to prevent a new decision but also to prevent a
new investigation, so that the same person cannot be harassed again and again in various
proceedings upon the same question.

The rule of res judicata is based on two important grounds namely:

• The hardship to an individual, who could otherwise be vexed twice for the same cause,
and
• Public policy, which requires that there should be an end to litigation.

Conditions in Res Judicata:

The Plea of res judicata questions the jurisdiction of the court to try the proceedings. However,
the doctrine of res judicata will apply only if the requirements of Section 11 are fulfilled. To
avail the plea and constitute a matter as res judicata under Section 11 the following conditions
must be satisfied:
1. The matter directly and substantially is in issue in the subsequent suit or issue must be
the same matter which was directly and substantially in issue either actually or
constructively in the former suit;
2. The former suit must have been a suit between the same parties or between the parties
under whom they or any of them claim.
3. Such parties must have been litigating under the same title in the former suit.
4. The court which decided the former suit must be a court competent to try the subsequent
suit or the suit in which such issue is subsequently raised;
5. The matter directly and substantially in issue in the subsequent suit must have been
heard and finally decided by the court in the former suit.
It is necessary that the matter of res judicata should be raised by the party concerned. Where
the issue of res judicata was not raised by the concerned party, nor any such issue was framed
by the trial court, but the appellate court suo motto invoked the principle of res judicata, this
was held to be not proper.

Unless the issue of res judicata is raised by the parties, the court has no jurisdiction to answer
the issue of res judicata.

1. Matter in issue:

The expression matter in issue means the rights litigated between the parties, i.e., the facts on
which the right is claimed and the law applicable to the determination of that issue. Such issue
may be an issue of fact, issue of law or mixed issue of law and fact.

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A matter directly and substantially in issue in a former suit will operate as res judicata in a
subsequent suit. The term directly has been used in contradistinction to collaterally or
incidentally. A fact cannot be said to be directly in issue if the judgment stands whether that
fact exists or does not exist. No hard and fast rule can be laid down as to when a matter can be
said to be directly in issue and it depends upon the facts and circumstances of each case.

A matter directly and substantially in issue may be so either actually or constructively.

According to Explanation III, a matter is actually in issue when it is alleged by one party and
denied or admitted by the other expressly or impliedly. As per Explanation IV, it is
constructively in issue when it might or ought to have been made a ground of attack or defence
in the former suit. The word might presuppose the party affected had knowledge of the ground
of attack or defence at the time of the previous suit. Ought to compel the party to take such
grounds. The word and is to be read conjunctively. Unless it is proved that the matter might
and ought to have been raised in the previous litigation, there is no constructive res judicata.

A party is bound to bring forward his whole case in respect of the matter in issue and cannot
abstain from relying upon or giving up any ground which is in controversy and for
consideration before a Court and afterwards make it a cause of action for a fresh suit.
Constructive res judicata is an artificial form of res judicata. It provides that if a plea could
have been taken by a party in a proceeding between him and his opponent, he should not be
permitted to take that plea against the same party in a subsequent proceeding with reference to
the same subject matter.

In the case of Workmen v. Board of Trustees, Cochin Port Trust [4], the Supreme The court
observed that the principle of res judicata comes into play when by the judgment and order a
decision of a particular issue is implicit in it, i.e., it must be deemed to have been necessarily
decided by implication, then also the principle of res judicata on that issue is directly applicable.

Former Suit: Explanation 1:

Section 11 provides that no the court shall try any suit or issue in which the matter has been
directly and substantially in issue in a former suit between the same parties and has been heard
and finally decided. It is not the date on which the suit is filed that matters but the date on which
the suit is decided; so that even if a suit was filed later, it will be a former suit within the
meaning of Explanation I if it has been decided earlier.

2. Same parties:
The second condition of res judicata is that the former suit must have been a suit between the
same parties or between the parties under whom they or any of them claim. This condition

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recognises the general principle of law that judgments and decrees bind the parties and privies.
Therefore, when the parties in the subsequent suit are different from the former suit, there is no
res judicata.

Parties under whom they or any of them claim:

The doctrine of res judicata operates not only against parties but their privies also, i.e., persons
claiming under the parties to the decision. The object underlying this doctrine is that if a
proceeding originally instituted is proper, the decision given therein is binding on all persons
on whom a right or interest may devolve.

Representative Suit: Explanation VI

Explanation VI to Section 11 deals with representative suits, i.e. suits instituted by or against a
person in his representative, as distinguished from individual capacity. It provides that where
persons litigate bonafide in respect of a public right or of a private right claimed in common
for themselves and others, and all persons interested in such right shall, for the purposes of
Section 11, be deemed to claim under the persons so litigating.

Explanation VI thus, illustrates one aspect of constructive res judicata. Thus, where a
representative suit is brought under Section 92 of the Code and a decree is passed in such a
suit, the law assumes that all the persons who have the same interest as plaintiffs in the
representative suit were represented by the said plaintiffs and, therefore, are constructively
barred by res judicata by reagitating the matters directly and substantially in issue in the former
suit.

The following conditions must be satisfied before a decision may operate as res judicata under
Explanation VI:
• There must be a right claimed by one or more persons in common for themselves and
others not expressly named in the suit;
• The parties not expressly named in the suit must be interested in such right;
• the litigation must have been conducted bonafide and on behalf of all the parties
interested;
• if the suit is under Order 1, Rule 8, all conditions laid down therein must have been
strictly complied with.
Also, if the previous litigation was bonafide public interest litigation in respect of a right which
was common and was agitated in common with others, the decision in previous litigation would
operate as res judicata in subsequent litigation.

3. Same title:

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The third condition of res judicata is that the parties to the subsequent suit must have litigated
under the same title as in the former suit. The same title means the same capacity. It refers to
the capacity or interest of a party, i.e., whether he sues or is sued for himself in his own interest
or for himself as representing the interest of another or as representing the interest of others
along with himself and it has nothing to do with the particular cause of action on which he sues
or is sued. Litigating under the same title means that the demand should be of the same quality
in the second suit as was in the first suit.

As held in Ram Gobinda v. Bhaktabala, the test for res judicata is the identity of title in the two
litigations and not the identity of the subject matter involved in the two cases. The crucial test
for determining whether the parties are litigating in a suit under the same title as in the previous
suit is of the capacity in which they sued or were sued. The term same title has nothing to do
either with the cause of action or with the subject matter of 2 suits.

4. Competent court:
The fourth condition of res judicata is that the court which decided the former suit must have
been a court competent to try the subsequent suit. Thus, the decision in a previous suit by a
court, not competent to try the subsequent suit, will not operate as res judicata. The principle
behind this condition is that the decision of the Court of limited jurisdiction ought not to be
final and binding on a court of unlimited jurisdiction.

The expression competent to try means competent to try the subsequent suit if brought at the
time the first suit was brought. In other words, the relevant point of time for deciding the
question of competence of the Court is the date when the former suit was brought and not the
date when the subsequent suit was filed.

Right of Appeal: Explanation II

Explanation II to Section 11 makes it clear that for the purpose of res judicata the competence
of the Court shall be determined irrespective of any provision as to a right of appeal from the
decision of such Court. The question of whether there is a bar of res judicata does not depend
on the existence of a right of appeal but on the question whether the same issue, under the
circumstances mentioned in Section 11, has been heard and finally decided.

5. Heard & finally decided:

The fifth and final condition of res judicata is that the matter directly and substantially in issue
in the subsequent suit must have been heard and finally decided by a court in the former suit.
The expression heard and finally decided means a matter on which Court has exercised its
judicial mind and has after argument and consideration come to a decision on a contested
matter. A matter can be said to have been heard and finally decided notwithstanding that the

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former suit was disposed of ex parte; or by failure to produce evidence (Order 17 Rule 3); or
by a decree on an award; or by oath tendered under the Indian Oaths Act, 1873.

In order that a matter maybe said to have been heard and finally decided, the decision in the
former suit must have been on merits. Thus, if the former suit was dismissed by a court for the
want of jurisdiction, or for default of plaintiff’s appearance, or on the ground of misjoinder or
non-joinder of parties, or on the ground that the suit was not properly framed, or that it was
premature, or that there was a technical defect, the decision not being on merits, would not
operate as res judicata in a subsequent suit.

STATE OF UP V NAWAB HUSSAIN 1977

State of UP vs Nawab Hussain case dealt with whether a decision of the High Court on merits
on a certain matter after the contest, in a writ petition under Article 226 of the Constitution,
operates as res judicata in a regular suit regarding the same matter between the same parties.
Appeal by the State of UP before the Supreme Court through Special Leave Petition under
Article-136 of the Constitution. Leave was granted.

Facts of Nawab Hussain Case:

• Respondent Nawab Hussain was a Sub-Inspector in UP Police. He was charged under
the Prevention of Corruption Act and dismissed from service after due inquiry. The
dismissal order was passed by the Deputy Inspector General of Police (DIG Police) and
was confirmed by the state government.
• The respondent filed an appeal against the dismissal. The same was dismissed.
• He filed a Writ Petition under Article 226 of the Constitution before the Allahabad High
Court. His contentions were that it did not afford him a reasonable hearing and
opportunity to defend and that his dismissal was mala fide. The HC dismissed the Writ
Petition.
• He then filed a civil suit before the court of civil judge. His contentions were that the
Inspector General of Police appointed him and the DIG did not have the power to
dismiss him from the service as the DIG was not the appointing authority but was an
authority subordinate to IG Police, who appointed him. He argued that his dismissal
falls foul of Article 311 (1) of the Constitution of India.
• Article-311 (1) reads as: “311. Dismissal, removal, or reduction in rank of persons
employed in civil capacities under the Union or a State. (1) No person who is a member
of a civil service of the Union or an all-India service or a civil service of a State or
holds a civil post under the Union or a State shall be dismissed or removed by an
authority subordinate to that by which he was appointed.
• The State of UP repelled his contentions on grounds of constructive res judicata as laid
down by Explanation-IV to SECTION11, CPC, 1908. The state argued, “That all the

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 matters in issue, in this case, had been raised or ought to have been raised both in the
writ petition and special appeal”.
• The trial court dismissed the suit because the DIG shall be deemed to be the appointing
authority. However, it held that constructive res judicata did not bar the suit. The
District Court upheld the decision of the trial court.
• However, the Allahabad HC reversed the decision of the trial court on the point that
DIG would be deemed to be the appointing authority. It held that the petitioner could
not have been dismissed by DIG in view of the express provisions of Article 311 (1) of
the Constitution. It, however, upheld the decision of the trial court on the point that res
judicata did not bar the suit.
• The State of UP filed an SLP before the Supreme Court. Leave for granted.
Legal Issue:

• Whether the principle of constructive res judicata was applicable to petitions under
articles 32 and 226 of the Constitution?
• Whether the principle of constructive res judicata could be invoked by a party to a
subsequent suit on the ground that a plea which might or ought to have been raised in
the earlier proceeding but was not so raised therein, was left open?

Arguments Advanced
PETITIONER
• Sri Upadhya for the State contended that though the validity of the order of dismissal
was not questioned by Nawab Husain on the ground that the Deputy Inspector General
of Police was not the appointing authority and he was lower in rank than the Inspector
General of Police who actually made the appointment of the petitioner, yet this ground
could have been raised by him or might have been raised by him and ought to have
been raised by him in the writ petition itself.
• Therefore, a subsequent suit raising those grounds would be barred by principles of
constructive res judicata as the relief in the two proceedings was substantially the same
and based on the same cause of action.
• Reliance has been placed by the learned counsel on a decision of the Supreme Court in
the case of Devilal Modi v. Sales Tax Officer, Ratlam, 1965. In that case the learned
Judges of the Supreme Court held that while deciding the writs even though involving
violation of fundamental rights, the principles of res judicata cannot be ignored and
general principles of res judicata include the applicability of principles of constructive
res judicata. The learned Judges of the Supreme Court held that a second petition
under Article 226 of the Constitution for the same relief was barred by the principles of
res judicata, though based on different grounds, which were not raised and decided in
a prior writ petition for the same relief which was dismissed.

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 RESPONDENT
• Sri K. C. Saxena, learned counsel for the respondent, submitted that the decision of
the Supreme Court in Devilal Modi's case relied upon by the learned counsel for the
State does not lay down the law when the question is to be considered in regard to
the bar of res judicata being pleaded in a suit on the ground that a previous writ
petition based on the same cause of action for a similar relief had been filed
under Article 226 of the Constitution and dismissed.

• Learned counsel submitted that the law as to how far the decision in a writ petition
will operate as res judicata in a subsequent suit for the same relief has been laid
down by the Supreme Court in the case of I. L. Janakirama Iyer v. P. M. Nilakanta
Iyer wherein it was laid down that where the court is dealing with a suit, the only
ground on which res judicata can be urged against such a suit can be the provisions
of Section 11 and no other, and where section 11 was inapplicable it would not be
permissible to rely upon the general principles of res judicata.

• Learned counsel also submitted that only that issue between the parties would be
res-judicata which was raised in the earlier writ petition and was decided by the
High Court after contest and since in this case the respondent did not raise in the
earlier writ petition the plea of competence of the Deputy Inspector General of
Police to dismiss him, the parties were never at issue on it and that the High Court
never considered and decided this issue in the writ petition.

Decision of the Supreme Court:

• Section 11 CPC is not exhaustive regarding an earlier decision operating as res judicata
between the same parties on the same matter in controversy in a subsequent regular suit
and that on the general principle of res judicata, any previous decision on a matter in
controversy, decided after the full contest or after affording a fair opportunity to the
parties to prove their case by a Court competent to decide it, will operate as res judicata
in a subsequent regular suit.
• It is unnecessary that the court deciding the matter formerly be a competent to decide
the subsequent suit or that the former proceeding and the subsequent suit have the same
subject matter.
• The plea taken in the subsequent suit was an important plea that was within the
knowledge of the petitioner when he filed the previous writ petition, and this plea could
well have been taken in the same petition. So, res judicata bars the suit in the present
case.
Important paragraphs from the Judgment:

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• The principle of estoppel per rem judicatam is a rule of evidence. As has been stated
in Marginson v. Blackburn Borough Council, it may be said to be “the broader rule
of evidence which prohibits the reassertion of a cause of action”. This doctrine is based
on two theories:
1. The finality and conclusiveness of judicial decisions for the final termination of
disputes in the general interest of the community as a matter of public policy,
and
2. The interest of the individual, that it should protect him from the multiplication
of litigation. It, therefore, serves not only a public but also a private purpose by
obstructing the reopening of matters which have once been adjudicated upon. It
is thus not permissible to obtain a second judgment for the same civil relief on
the same cause of action, for otherwise, the spirit of contentiousness may give
rise to conflicting judgments of equal authority, lead to multiplicity of actions
and bring the administration of justice into disrepute.
• It is the cause of action which gives rise to an action, and that is why it is necessary for
the courts to recognize that a cause of action that results in a judgment must lose its
identity and vitality and merge in the judgment when pronounced. It cannot, therefore,
survive the judgment, or give rise to another cause of action on the same facts. This is
known as the general principle of res judicata.
• But it may be that the same set of facts may give rise to two or more causes of action.
If in such a case a person is allowed to choose and sue upon one cause of action at one
time and to reserve the other for subsequent litigation, that would aggravate the burden
of litigation.
• Courts have therefore treated such a course of action as an abuse of its process and
Somervell, L.J., has answered it as follows in Greenhalgh v. Mallard: 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.
• This is therefore another and an equally necessary and efficacious aspect of the same
principle, for it helps in raising the bar of res judicata by suitably construing the general
principle of subduing a cantankerous litigant. That is why this other rule has sometimes
been referred to as constructive res judicata, which, in reality, is an aspect or
amplification of the general principle.
• These simple but efficacious rules of evidence have been recognized for a long, and it
will be enough to refer to this Court’s decision in Gulabchand Chhotalal Parikh v.
State of Bombay for the genesis of the doctrine and its development over the years
culminating in the present Section 11 of the Code of Civil Procedure, 1908. The section,
with its eight explanations, covers almost the whole field and has admirably served the
purpose of the doctrine.

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 • But it relates to suits and former suits, and has, in terms, no direct application to a
petition for a high prerogative writ. The general principles of res judicata and
constructive res judicata have, however, been acted upon in cases of renewed
applications for a writ. Reference may be made to ex-parte.
• It is not in controversy before us that the respondent did not raise the plea, in the writ
petition which had been filed in the High Court, that because of Article 311 (1) of the
Constitution he could not be dismissed by the Deputy Inspector- General of Police as
he had been appointed by the Inspector-General of Police.
• It is also not in controversy that this was an important plea that was within the
knowledge of the respondent and could well have been taken in the writ petition, but
he contended himself by raising the other pleas that he was not afforded a reasonable
opportunity to meet the case against him in the departmental inquiry and that the action
taken against him was mala fide. It was therefore not permissible for him to challenge
his dismissal, in the subsequent suit, on the other ground, that he had been dismissed
by an authority subordinate to that by which he was appointed. That was clearly barred
by the principle of constructive res judicata, and the High Court erred in taking a
contrary view.
• The appeal is allowed, the impugned judgment of the High Court dated March 27, 1968,
is set aside and the respondent’s suit is dismissed. In this case, we direct the parties
shall pay and bear their own costs.

CRITICAL ANALYSIS-
• Supreme Court allowed the appeal and the impugned judgement of High Court was
set aside and respondent’s suit was dismissed.
• The rule engrafted in explanation IV to Section 11 of the Code postulates that if a
plea could have been taken by a party in a proceeding between him and his
opponent, he would not be allowed to take that plea against the same party in a
future proceeding which is based on the same cause of action. Moreover, it was
particularly held that the Doctrine of Constructive Res Judicata was applicable to
writ petitions also.
• The rule as declared by the Supreme Court in respect to the plea of res judicata
forbidding a subsequent suit on the ground of dismissal of a prior writ petition under
Article 226 of the Constitution is that, only that issue urged between the parties will
be res judicata which was raised in the earlier writ petition and was decided by the
High Court after contest. However, the important plea which was in the knowledge
of the respondent and could be taken in the writ petition (dismissed by an authority
subordinate to that by which he was appointed), was not proceeded with, but he
contended himself by urging other pleas that he was not afforded with reasonable
opportunity and the action taken against him was malafide. It was not permissible
for him to challenge his dismissal and in the subsequent suit, questioning the
validity of the dismissal order given by the authority subordinate to that by which
he was appointed, was clearly barred by the Principle of Constructive Res Judicata,
and the High Court erred in taking a contrary view.

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BIBLIOGRAPHY
Books:
1. Takwani C.K., Civil Procedure Code, Edition 5. Reprint 2007, Eastern Book
Publication, Lucknow.
2. Dr. Myneni S.R., The Law of Evidence. Edition 1. Asia law House, Hyderabad.
3. Sukumar Ray, The Code of Civil Of Procedure, Universal Law Publishing Co. 2008
Edition
4. Halsbury Laws of India, Vol. : Code of Civil Procedure

Web References:
1. http://vlex.in/vid/arjun-singh-vs-mohindra-kumar-ors-29694951
2. http:// www.legalserviceindia.com/articles/rju.htm
3. http://www.utcle.org/eLibrary/preview.php?asset_file_id=12359
4. http://www.absoluteastronomy.com/topics/Res_judicata#encyclopedia
5. http://www.legalservicesindia.com/article/1782/Res-Sub-Judice,-Res-Judicata-and-
Constructive-Res-Judicata.html , Accessed on 26/11/22 at 10:50am.
6. https://indiankanoon.org/doc/739415/ , Accessed on 26/11/22 at 12:00pm.
7. http://www.sciencepub.net/report/roj110919/01_35252roj110919_1_4.pdf , Accessed
on 17/11/21 at 3:05pm.
8. https://indiankanoon.org/doc/11406/ , Accessed on 27/11/22 at 9:00pm

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