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(1949) 62 LW (JS) 115

Scope of Constructive Res Judicata in S. 11, Explanation IV C.P.C.

SCOPE OF CONSTRUCTIVE RES JUDICATA IN S. 11, EXPLANATION IV C.P.C.

by
N.R. Raghavachari
When Romer himself could sometimes nod why should not the Privy Council? The
assumption of infallibility with which one generally views the decisions of the Privy
Council has been demonstrated to be wrong in several instances in the past, and the
decision of the Judicial Committee in Government of the Province of Bombay v.
Rustomji Adheshir Wadia, 62 LW 444 P.C. is the latest instance in point. The words
“might” and “ought” occurring in S. 11 Explanation IV, have been the subject of
numerous decisions here and elsewhere, and whatever might have been the difficulties
experienced in applying the principles to the particular facts of the cases, 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. It is quite conceivable that a ground of defence, though as a matter of fact
existing was not and could not have been known to him despite his best care and
diligence. In such a case, to prevent him from raising that plea when subsequently it
came to be known to him, is abhorrent to the notions of justice on which the plea of
res judicata is founded and fostered. Let us take the instance of a person, say, X, filing
a suit against Y for recovery of properties on the ground that X was the nearest heir to
Z who lost his life in an Air-crash in a foreign country. Y resisted the suit alleging that
he, and not X, was the nearest heir. The suit was decreed in favour of X, the Court
finding him to be nearer heir than Y, Supposing it subsequently turns out that Z had
executed a will in favour of Y and that will has been brought to the knowledge of Y as
having been discovered amongst the articles salvaged from the wreckage of the
aeroplane, can it be contended in law or equity that Y should not reagitate his claim to
Z's properties merely because in the previous litigation Y did not, as he could not,
claim on the ground of Z's will also. No doubt it is permissible to argue that in order to
be able successfully to raise that plea on the ground of its subsequent discovery, Y
must establish to the satisfaction of the Court that in fact and in deed he did not know
of the existence of the will at the time of the former litigation and that he could not
have known it even with the exercise of normal diligence and care of a prudent person.
It is here that the expression “might” in Explanation IV of S. 11 has its application. It
is impossible to say that a person might have put forward the plea even though he
was absolutely ignorant of it. Cases like 24 Cal 711, 9 Bom. L.R. 1020 : 15 Cal 800,
AIR 1917 Lah 19, AIR 1934 Mad 563, AIR 1941 Nag 346 are illustrations of this
principle, the best exposition of which is contained in 42 Cal. W.N. 560, at 564, 565.
Now coming to the expression “ought” it is equally clear that any plea which, if raised,
would have defeated the other man's claim, if such plea is available and known to the
party, must be put forward, as otherwise there would be no end to a litigation, a party
defeated in one suit reagitating the claim in a subsequent suit on a different ground.
This was laid down in the leading case of the Duchess of Kingstone (2 Smith's Leading
cases, 11th Edn. P. 731) and few could have doubted the correctness and the wisdom
of this rule. But in the latest Privy Council case this principle seems to have been
given the go-bye. In that case a suit was brought on behalf a trust claiming that a non
-agricultural assessment levied by the Government on a village alleged to belong to
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the trust should be paid to the trustees on the ground that the entire village and not
merely a particular amount of the previously existing assessment belonged to the
trust. This non-agricultural assessment was authorised by the relevant statute only in
respect of villages on which there had already been a settlement and not in respect of
villages which had not undergone such settlement. In that litigation the Government

Page: 116

merely raised the question of the construction of the grant of the village, contending
that the grant under which the trust claimed was only in respect of the particular
amount of existing assessment and not in respect of the entire proprietorship of the
village, and did not put forward the further plea that there could be no valid non-
agricultural assessment as there was no prior settlement of the village. As a matter of
fact the prior litigation proceeded on the admission of such settlement by the
Government. It was ultimately decided in that litigation by the Privy Council that the
entire village and not merely the particular amount of assessment belonged to the
trust. A subsequent suit was brought on behalf of the trust claiming the non-
agricultural assessment imposed by the Government for a later period and in this suit
the Government raised the plea which they did not put forward in the previous
litigation, namely, that as there was no previous settlement of the village, there could
be no valid non-agricultural assessment in respect of which the trust could claim any
relief. The question was whether this plea was barred by the principle of constructive
res judicata as one which might and ought to have been put forward in the previous
litigation. It was conceded by their Lordships that if this plea was successfully raised
in the previous litigation it would have resulted in the dismissal of the previous suit.
Still their Lordships proceeded to say that it was not a plea which the Government
ought to have put forward in the previous litigation and that, therefore, the
Government was not precluded from putting it forward in the subsequent litigation.
This is what their Lordships said:

“It is no doubt true that this matter might have been raised and if raised a decision
on it might have resulted in the dismissal of the suit against the Government, but the
question is, ought this matter to have been raised by the Government? Their Lordships
feel it is impossible to say that the Government ought to have raised it.”
This reasoning it is very difficult to understand. It is a fundamental rule of res
judicata that a defendant who has got several grounds for defeating the plaintiff's
action ought to put forward every one of them [11 Moo IA 50 (73)] and that if he fails
to put forward any of them he would be precluded from raising it in a subsequent
litigation (AIR 1942 Oudh 354 : AIR 1941 Cal 574), How this essential rule of res
judicata is made inapplicable to the facts of the case before the Privy Council, it is
impossible to see. The only reasoning which sounds plausible is contained in the
following words of the judgment: “If the Government chose to admit certain facts for
the purpose of getting a decision on an important question of law it is impossible to
say that the suit involves a decision as to the facts”. It is curious and surprising that
the Privy Council should hold that there was no res judicata on the question of the
existence of a prior settlement merely, because that had been admitted by the
Government in the previous litigation though if it had been put in issue in that
litigation or not mentioned at all, it would operate as res judicata. We can only
presume that it is one of those unfortunate slips to which that august Tribunal is
sometimes subject, for after all it is only a human institution liable like all human
institutions to the fallibility of human wisdom. We therefore submit that the decision
on this point is one which requires reconsideration in the near future as otherwise
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corning as it does from the Judicial Committee it is liable to result in inducing

erroneous decisions by the subordinate Courts which are bound to follow it.
After all, it is always open to the Privy Council to say that its previous decision is
wrong. The absolute presumption of omniscience in respect of the House of Lords does
not apply in the case of the Privy Council, and it is open to a party in a subsequent
appeal to that body to show that its decision is wrong. Now that the Federal Court gets
seizin of such appeals from India, it is up to the Federal Court to declare on the
correctness or otherwise of this Privy Council pronouncement.
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