State of U.P. v. Nawab Hussain (AIR 1977 SC 1680)

State of U.P. v. Nawab Hussain (AIR 1977 SC 1680

Section 11, Explanation IV- Constructive Res-judicata


In this case, the petitioner was dismissed from service. He filed a writ petition on the ground of denial of opportunity of being heard and that the action taken against him was mala fide.

After that dismissal of petition he filed another petition alleging that he was appointed by the Inspector General of Police and he was dismissed by the Deputy I.G. He alleged that the latter was not empowered to dismiss him and therefore his order of dismissal was by a person who did not have the power to do so. He further contended that, he was not afforded a reasonable opportunity to meet the case against him in the departmental inquiry and that the action taken against was mala fide.


Whether a decision of the High Court on merits on a certain matter after contest, in a writ petition under Art. 226 of the Constitution, operates as res judicata in a regular suit with respect to the same matter between the same parties.


The provisions of Sec. 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 controversy, decided after 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 not necessary 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 which 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.

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