Explanation IV to Section 11 of the code
The rule of constructive res judicata engrafted in Explanation IV to Section 11 of the code is an artificial and special form of res judicata and provides that if plea could have been taken by a party in a proceeding between him and 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. That clearly is opposed to considerations of public policy on which the doctrine of res judicata is based and would mean harassment and hardships to the opponent. Besides, if such a course is allowed to be adopted, the doctrine of finality of judgments pronounced by courts would also be materially affected (Devi Lal v. S.T.O., AIR 1965 SC 1150) Thus, it helps in raising the bar of res judicata by suitably construing. The general principles of subduing a cantankerous litigant. So, this rule is called constructive res judicata, which is an aspect or amplification of the general principles of res judicata.
Workman, C.P. Trust v. Board of Trustees
In the case of Workman, C.P. Trust v. Board of Trustees (AIR 1978 SC 1283) the Supreme Court explained the principle of constructive res judicata and held that when any matter which might and ought to have been made a ground of defense 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.
Illustrations
(i) A sues B for possession of passport on the basis of ownership. The suit is dismissed. A cannot thereafter claim possession of property as mortgagee as that ground ought to have been taken in the previous suit as a ground of attack.
(ii) A files a suit against B for declaration that he is entitled to certain lands as heir of C, the suit is dismissed. The subsequent suit, claiming the same property on the ground of adverse possession, is barred by constructive res judicata.
State of U.P. v. Nawab Hussain
In State of U.P. v. Nawab Hussain, AIR 1977 SC 1680, the Supreme Court held that the suit was barred by constructive res judicata as the plea was within the knowledge of the plaintiff and could well have been taken in the earlier writ petition.
Horo v. Johan Ara, AIR 1973 SC 1406
In Horo v. Johan Ara, AIR 1973 SC 1406, the Supreme Court held that the suit was barred by constructive res judicata as the pleas were taken but not pressed at the time of hearing.
Forward Construction Company v. Prabhat Mandal
In Forward Construction Company v. Prabhat Mandal, AIR 1986 SC 391
the Supreme Court observed that the principle underlying Explanation IV is that where the parties have had an opportunity of controverting a matter that should be taken to be the same thing as if the matter had been actually controverted and decided.
Devi Lal v. S.TO
In the leading case of Devi Lal v. S.TO., AIR 1965 SC 1150, A challenged the validity of an order of assessment under Article 226, the petition was dismissed on merit and an appeal was also dismissed by the Supreme Court. A again filed the writ petition in the same High court against the same order of assessment by taking additional grounds which was dismissed by High Court. On appeal, the Supreme Court held that the petition was barred by the principle of constructive res judicata.
Kewal Singh v. Lajwanti
In Kewal Singh v. Lajwanti, 1980 I SCC 290 it was held that the doctrine of constructive res judicata is not applicable in the absence adjudication between parties. It was also held in the case of Devi Lal v. S.T.O., that the constructive res judicata is applicable to writ petition.
