State of U.P. v. Nawab Hussain [1977 SC]

Judgment Summarized by Delhi Law Academy – Jaipur

Facts of the case

  • Nawab Hussain was a confirmed Sub-Inspector of Police in UP.
  • He was dismissed from service by the Deputy Inspector-General of Police in 1954.
  • He filed an appeal, but it was dismissed in 1956.
  • He then filed a writ petition in Allahabad High Court for quashing the disciplinary 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 in 1959.
  • He then tiled a suit in the Court of Civil Judge in 1960, in which he challenged the order of his dismissal on the ground that he had been appointed by the Inspector-General of Police and that the DIG was not competent to dismiss him by virtue of the provisions of Article 311(1).
  • State of Uttar Pradesh traversed the claim on 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 in the writ petition and special appeal”.
  • The trial court dismissed the suit in 1960 but the High Court decreed it in 1968.


The rule of Res Judicata

The principle of estoppel per rem judicatam is a rule of evidence. In Marginson v. Blackburn Borough Council, it was said to be “the broader rule of evidence which prohibits the reassertion of a cause of action”.

This doctrine is based on two theories:

  • 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
  • interest of the individual that he should be protected from multiplication of litigation.

It therefore serves not only a public but also a private purpose by obstructing the reopening 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.

It is the cause of action which gives rise to an action. A cause of action which results in a judgment must lose its identity and vitality and merge in the judgment 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 judicata.

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.

The rule of Constructive Res Judicata [Greenhalgh v. Mallard]:

Res judicata for this purpose is 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 respect of them.

This 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 culminated in the present Section 11 of the Code of Civil Procedure, 1908. But it relates to suits and former suits, and has, in terms, no direct application to a petition for the issue of a high prerogative writ. The general principles of res judicata and constructive res judicata have however been acted upon in cases of renewed applications for a writ.


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 could not be dismissed by the Deputy Inspecor-General of Police as he had been appointed by the Inspecor-General of Police. It is also not in controversy that that was an important plea which was within the knowledge of the respondent and could well have been taken in the writ petition, but he contended 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 therefore 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 of constructive res judicata.

The appeal is allowed, and the impugned judgment of the High Court is set aside.