Appeal No 2339 of 1968
Appeal by Special Leave from the Judgment and Order dated the 27 3 1968 of the Allahabad High Court in Second Appeal No 2352 of 1963
GN Dikshit and OP Rana for the appellant
EC Agrawala for the respondent
The Judgment of the Court was delivered by SHINGHAAL J
Respondent Nawab Hussain was a confirmed SUbInspector of Police in Uttar Pradesh
An anonymous complaint was made against him and was investigated by Inspector Suraj Singh who submitted his report to the Super intendent of Police on February 25 1954
Two cases were registered against him under the Prevention of Corruption Act and the Penal Code
They were also investigated by Inspector Suraj Singh and the respondent was dismissed from service by an order of the Deputy Inspector General of Police dated December 201954
He filed an appeal but it was dismissed on April 17 1956
He then filed a writ petition in the Allahabad High Court for quashing the disci plinary proceedings on the ground that he was not afforded a reasonable opportunity to meet the allegations against him and the action taken against him was mala fide
It was dismissed on October 30 1959  The respondent then filed a suit in the court of Civil Judge Etah on January 7 1960 in which he challenged the order of his dismissal on the ground inter alia that he had been appointed by the Inspector General of Police and that the Deputy Inspector General of Police was not competent to
dismiss him by virtue of the provisions of article 311 1 of the Constitu tion
The State of Uttar Pradesh traversed the claim in the suit on several grounds including  the plea that the suit was barred by res judicata as all the matters in issue in this case had been raised or ought to have been raised both 430 in the writ petition and special appeal
 The trial court dismissed the suit on July 21 1960 mainly on the ground that the Deputy Inspector General of Police would be deemed to be the plaintiffs appointing authority
It however held that the suit was not barred by the principle of res judica ta
The District Judge upheld the trial court s judgment and dismissed the appeal on February 15 1963
The respond ent preferred a second appeal which has been allowed by the impugned judgment of the High Court dated March 27 1968 and the suit has been decreed
The appellant State of Uttar Pradesh has therefore come up in appeal to this Court by special leave
The High Court has taken the view that the suit was not barred by the principle of constructive res judicata and that the respondent could not be dismissed by an order of the Deputy Inspector General of Police as he had been appointed by the Inspector General of Police
As we have reached the conclusion that the High Court committed an error of law in deciding the objection regarding the bar of res judicata it will  not be necessary for us to examine the other point
The principle of estoppel per rem judicatam is a rule of evidence
As has been stated in Marginson vs Blackburn Borough council1 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 i 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 ii the inter est of the indidual that he should be protected from multi plication of litigation
It therefore serves not only a public but also a private purpose by obstructing the reopen ing 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 other wise the spirit of contentiousness may give rise to con flicting 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 recognise that a cause of action which results in a judgment must lose its identity and vitality
and merge in the judg ment when pronounced
It cannot therefore survive the judgment or give rise to another cause of action on the same facts
This is what is known as the general principle of res iudicata
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 LJ has answered it as follows in Greenhalgh vs Mallard2  I think that on the authorities to which I will refer it would be accurate to say that res judicata for this purpose is 1 at p 437
2 at p 257
431 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 re spect 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 recognised for long and it will be enough to refer  to this Courts decision in Gulabchand Chhotalal Parikh vs State of Bombay1 for the genesis of the doctrine and its develop ment over the years culminating in the present section 11 of the Code of Civil Procedure 1908
The section with its six explanations covers almost the whole field and has admirably served the purpose of the doctrine
But it relates to suits and former suits and has in terms no direct application to a petition for the issue of a high preroga tive 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 in this connection may be made to Ex Parte Thompson2
There AJ Stephens moved for a rule calling upon the authorities concerned to show cause why a mandamus should not issue
He obtained a rule nisi but it was discharged as it did not appear that there had been a demand and a refusal
He applied again saying that there had been a demand and a refusal since then
Lord Denman CJ observed that is Stephens was making an application which had already been refused on fresh materials he could not have the Same application repeated from time to time as they had often refused rules on that ground
The same view has been taken in England in respect of renewed petition for certiorari quo warranto and prohibition and as we shall show that is also the position in this country
We find that the High Court in this case took note of the decisions this Court in L Janakimma lyer and others vs
P M Nilakanta lyer and others3 Devilal Modi vs Sales Tax Officer Ratlam and others4 and Gulabchand Chhotalal Parikh vs State of Bombay supra and reached the following conclusion  On a consideration of the law as laid down by the Supreme Court in the above three eases I am inclined to
agree with the alter native argument of Sri KC Saxena learn 1  2 6 QB 720
3 1962 Supp 1 SCR 206
4  432 ed counsel for the plaintiff appellant that the law as declared by the Supreme Court in regard to the plea of res judicata barring a subsequent suit on the ground of dismissal of a prior writ petition under Article 226 of the Constitution is that only that issue between the parties will be res judicata which was raised in the earlier writ petition and was decided
by the High Court after contest
Since no plea questioning the validity of the dismissal order based on the incompetence
of the Deputy Inspector General of Police was raised in the earlier writ petition filed by the plaintiff in the High Court under Article 226 of the Constitution and the parties were never at issue on it and the High Court never considered or  decided it
I think it is competent for the plaintiff to raise such a plea in the subsequent suit and bar of res judicata will not apply
 We have gone through these cases
Janakirama lyer s was a case where the suit which was brought by defendants 1 to 6 was withdrawn during the pendency of the appeal in the High Court and was dismissed
In the mean time a suit was filed in a representative capacity under Order 1 rule 8 CPC One of the defences there was the plea of res judicata
The suit was decreed
Appeals were filed against the decree but the High Court dismissed them on the ground that there was no bar of res judicata When the matter came to this Court it was fairly conceded that in terms section 11 of the Code of Civil Procedure could not apply because the suit was filed by the creditors defendants 1 to 6 in their repre sentative character and was conducted as a representative suit and it could not be said that defendants 1 to 6 who were plaintiffs in the earlier suit and the creditors who had brought the subsequent suit were the same parties or parties who claimed through each other
It was accordingly held that where section 11 was thus inapplicable  it would not be permissible to rely upon the general doctrine of res judicata as the only ground on which res judicata could be urged in a suit could be the provisions of section 11 and no other
That was therefore quite a different case  and the High Court failed to appreciate that it had no bearing on the present controversy
The High Court then proceeded to consider this Court s decisions in Devilal Modi s case supra and Gulabchand s case supra
Gulabchand s was the later of these two cases
The High Court has interpreted it to mean as follows  It was held that the decision of the High Court on a writ petition under Article 226 on the merits on a matter after contest will operate as res judicata in a subse quent regular suit between the same parties with respect to the same matter
As appears from the report the above was majority view of the Court and the question whether the principles of constructive res judicata can be invoked by a party to the subsequent suit on the ground that a matter which might or ought to have been raised in the earlier proceedings was left open
The learned Judges took care to 433 observe that they made it clear that it was not necessary and they had not considered that the principles of constructive res judicata could be invoked by a party to the subse quent suit on the ground that a matter which might Or ought to have been raised in the earlier proceeding was not so raised therein
 As we shall show that was quite an erroneous view of the decision of this Court on the question of constructive res judicata
It will help in appreciating the view of this Court correctly if we make a brief reference to the
earli er  decisions in Amalgamated Coalfields Ltd and others vs Janapada Sabha Chhindwara1 and Amalgamated Coalfields Ltd and another vs Janapada Sabha Chhindwara2 which was also a case between the same parties
In the first of these cases a writ petition was filed to challenge the coal tax on some grounds
An  effort was made to canvass an addi tional ground but that was not allowed by this Court and the writ petitton was dismissed
Another writ petition was filed to challenge the levy of the tax for the subsequent periods on grounds distinct and separate from those which were rejected by this Court
The High Court held that the writ petition was barred by res judicata because of the earlier decision of this Court
The matter came up in appeal to this Court in the second case
The question which directly arose for decision was whether the principle of constructive res judicata was applicable to petitions under articles 32 and 226 of the Constitution and it was an swered as follows It is significant that the attack against the validity of the notices in the present proceedings is based on grounds different and distinct from the grounds raised on the earlier occasion
It is not as if the same ground which was urged on the earlier occasion is placed before the Court in another form
The grounds now urged are entirely distinct and so the decision of the High Court can be upheld only if the principle of constructive res judicata can be said to apply to writ petitions filed under article 32 or article 226
In our opinion constructive res judica ta which is a special and artificial form of res judicata enacted by section 11 of the Civil Procedure Code should not generally be applied to writ petitions field under article 32 or article 226
We would be reluctant to apply this principle to the present appeals all the more because we are dealing with cases where the impungned tax liability is for different years
 It may thus appear that this Court rejected the application of the principle of constructive res judicata on the ground that it was a special and artificial form of res judica ta and should not generally be applied to writ petitions but the matter did not rest there
It again arose for consideration in Devilal Modi s case supra
Gajendragadkar J who had spoken for the court in the second case of Amalgamated Coalfields Ltd spoke for the Court in that case also
The 1  2 1963
Supp 1
SCR 172 434 petitioner in that case was assessed to sales tax and filed a writ petition to challenge the assessment
The petition was dismissed by the High Court and he came in appeal to this Court
He sought to make some  additional contentions in this Court but was not permitted to do so He
there fore filed another writ petition in the High Court raising those  additional contentions and challenged the order of assessment for the same year
The High Court dismissed the petition on merits and the case came up again to this Court in appeal
The question which specifically arose for consid eration was whether the principle of constructive res judicata was applicable to writ petitions of that kind
While observing that the rule of constructive res judicata was in a sense a somewhat technical or artificial rule prescribed by the Code of Civil Procedure this Court declared the law in the following terms This rule postulates that if a plea could have been taken by a party in a proc ceding between him and his opponent he would not b0 permitted to take that plea against the same party in a subsequent proceeding which is based on the same cause of action but basi cally even this view is founded on the same considerations of public policy because if the doctrine of constructive res judicata is not applied to writ proceedings it would be open
to the party to take one proceeding after another an urge new grounds every time and that plainly is inconsistent with consid erations of public policy to which we have just referred
 While taking that view Gajendragadkar CJ tried to ex plain earlier decision in Amalgamated Coalfields Ltd vs Janapada Sabha Chhindwara1 and categorically held that the principle of constructive res judicata was applicable to writ petitions also
As has been stated that case was brought to the notice of the High Court but its signifi cance appears to have been lost because of the decisions in Janakirama Iyer and others vs
PM Nilakanta lyer supra and Gulabchand s ease supra
We have made a reference to the decision in Janakirama Iyer s case which has no bearing on the  present controversy and we may refer to the deci sion in Gulabchand s case as well
That was a case where the question which specifically arose for consideration was whether a decision of the High Court on merits
on a certain matter after contest in a writ petition under article 226 of the Constitution operates as res judicata in a regular suit with respect to the same matter between the same par ties
After a consideration of the earlier decisions in England and in this country Raghubar Dayal J who spoke for the majority of this Court observed as follows These decisions of the Privy Council well lay down that the provisions of section 11 CPC are not exhaustive with respect to an earlier decision in a proceeding operating as res judicata in a subsequent suit with respect to the same matter inter parties and do not preclude the
application to regular suits of the general principles of res judicata based on public policy  and applied from ancient
times
 1 1963 Supp 1 SCR 172 435 He made a reference to the decision in Daryao and others vs The State of UP and others1 on the question of res judi cata and the decisions in Amalgamated Coalfields Ltd and others vs Janapada Sabha Chhindwara2 and Devilal Modi s case supra and summarised the decision of the Court as follows  As a result of the above discussion we are of opinion that the provisions of section 11 CPC are not exhaustive with respect to 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 contro versy decided after full contest or after affording 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 not necessary that the Court deciding the matter formerly be competent to decide the subsequent suit or that the former proceeding and the subsequent suit have the same subject matter
The nature of the former proceeding is immaterial
 He however went on to make the following further observa tion We may make it clear that it was not necessary and we have not considered wheth er the principles of constructive res judicata can be invoked by a party to the subsequent suit on the ground that a matter which might or ought to have been raised in the earlier proceeding was not so raised therein
 It was this other observation which led the High Court to take the view that the question 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
That in turn led the High Court to the conclusion that the principle of construc tive res judicata could not be made applicable to a writ petition and that was why it took the view that it was competent for the plaintiff in this case to
raise an additional plea in the suit even though it was available to him in the writ petition which was filed by him earlier but was not taken
As is obvious the High Court went wrong in taking that view because the law in regard to the applicability of the principle of constructive res judicata having been clearly laid down in the decision in Devilal Modi s case supra it was not necessary to reiterate it in Gulabchand s case supra as it did not arise for consid eration there
The clarificatory observation of this Court in Gulabchand s case supra was thus misunderstood by the High Court in observing that the matter had been left open  by this Court
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 by virtue of clause 1 of article 311 of the Constitution he 1  2 1963 Supp
1 SCR172 436 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 that was an important plea which was within the knowledge of the re spondent and could well have been taken in the writ peti tion but he contented 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 there fore 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 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 respond ent s suit is dismissed
In the circumstances of the case we direct that the parties shall pay and bear their own costs
PBR Appeal allowed
436SCI77 2500 12 10 77 GIPF


Summary:
In a writ petition filed under article 226 of the Constitu tion impugning his dismissal from service the respondent contended that since he had not been given a reasonable opportunity of meeting the allegations against him his dismissal was void
writ petition was dismissed
Thereupon the respondent flied a suit in a civil court challenging his dismissal on the ground among others that since he had been appointed by the Inspector General of Po lice his dismissal by the Deputy Inspector General of Police was wrong
The State took the plea that the suit was barred by res judicata
Dismissing the suit the trial court held that it was not barred by res judicata
The first appellate court dismissed the respondent s appeal
Purporting to follow a line of decisions of this Court the High Court held 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 consid ered and decided this issue in the writ petition
On the question of invoking the principle of constructive res judicata by a party to the subsequent suit on the ground that the matter might or ought to have been raised in the earlier proceedings the High Court held that this question was left open by the Supreme Court in Gulabchand Chhotalal Parikh vs State of Bombay   and allowed the respondent s appeal
Allowing the States appeal to this Court
HELD The High Court was wrong in its view because the law in regard to the applicability of the principle of constructive res judicata having been clearly laid down in Devi Lal Modi vs Sales Tax Officer Ratlam and Others  it was not necessary to reiterate it in Gulabchand s case as it did not arise for consideration in that case
The clarificatory observation in Gulabchand s case was misunderstood by the High Court in observing that the matter had been left open by this Court
The doctrine of res judicata is based on two theo ries i the finality and conclusiveness of judicial deci sions for the final termination of disputes in the general interest of the community as a matter of public policy and ii the interest of the individual that he should be pro tected from multiplication of litigation
430 D 2
a In certain cases the same set of facts may give rise to two or more causes of action
In such cases res judicata is not confined to the issues which the Court is actually asked to decide but 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 rule has sometimes been referred to as constructive res judicata which is an aspect or amplification of the general principle
431 A b Section 11 of the Code of Civil Procedure with its six explanations covers almost the whole field but the section has in terms no application to a petition for the issue of a high prerogative writ
431 D c Although in the Amalgamated Coalfields Ltd and others vs Janapada Sabha  this Court held that constructive res judicata being a special and artifi cial form of res judicata should not generally be applied to writ petitions in Devilat Modi s this Court held that if the doctrine of constructive 429 res judicata was not applied to writ proceedings it would be open to a party to take one proceeding after another and urge new grounds every time which was plainly inconsistent with considerations of public policy
The principle of constructive res judicata was therefore held applicable to writ petitions as well
433 G  434 D 3
The High Court missed the significance of these deci sions and relied upon L Jankirama lyer and Others vs
PM Nilakanta lyer and Others 1962 Supp 1 SCR 206 which had no bearing on the controversy
In Gulabchand s case this Court observed that it did not consider it necessary to examine whether the principle of constructive res judicata could be invoked by a party to the subsequent suit oft the ground that a matter which might or ought to have been raised in the earlier proceeding but was not so raised therein could be raised again relying on which the High COurt concluded that the question was left open by this Court
This in turn led the High Court to hold that the principle of resjudicata could not be made applicable to a writ petition
435 E F In the instant case the respondent did not raise the plea that he could not be dismissed by the Deputy Inspector General of Police
This was an important plea which was within his knowledge and could well have been taken in the writ petition
Instead he raised the plea that he was not afforded a reasonable opportunity of meeting the case in the departmental inquiry
It was therefore not permissible for him to take in the subsequent suit the plea 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
436 A B