The rule of direct res Judicata is limited to a matter actually in issue alleged by one party and either denied or admitted by the other party expressly or impliedly.
But the rule of constructive res judicata engrafted in Explanation IV to Section 11 of the Code is an ‘artificial form of res judicata’ and 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.
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That clearly is opposed to consideration of public policy on which the doctrine of res judicata is based and would mean harassment and hardship to the opponent.
Besides, if such a course is allowed to be adopted, the doctrine of finality of judgements pronounced by Courts would also be materially affected. Thus, it helps in raising the bar of res judicata by suitably constructing the general principles of subduing a cantankerous litigant.
In the case of Workmen, C.P. Trust vs. Board of Trustees, the Supreme Court explained the principle of constructive res judicata in the following words:
If by any judgement or order any matter in issue has been directly and explicitly decided the decision operates as res judicata and bars the trial of an identical issue in a subsequent proceeding between the same parties.
The principle of res judicata also comes into play when the judgment and order a decision of a particular issue is implicit in it, that is, it must be deemed to have been necessarily decided by implication; then also the principle of res judicata on that issue is directly applicable, 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 eye of 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.
ADVERTISEMENTS:
In a judgement of Supreme Court in the case of State of U.P. vs. Nawab Hussain- a P.S.I. was dismissed from service by the D.I.G. He challenged the said decision by filing a writ petition in the High Court on the ground and that he was not afforded a reasonable opportunity, but the petition was dismissed. He then filed a suit and raised an additional plea that he was appointed by I.G.P. and D.I.G. was not competent to pass an order against him.
The State contended that the suit was barred by constructive res judicate. All the Courts including the High Court held against the State and the matter was taken to Supreme Court.
Allowing the appeal and after considering all the leading cases on the point, the Court held that the plea was clearly barred by the principle of constructive res judicate as such plea was within the knowledge of the P.S.I, and it could have been taken in the writ petition but was not taken at that time.