Central University of South Bihar

School of Law and Governance

Code of Civil Procedure, 1908

Case Analysis On

STATE OF U.P. Vs. NAWAB HUSSAIN

SUBMITTED TO:
DR. DEO NARAYAN SINGH
FACULTY, CIVIL PROCEDURE CODE
ASSISTANT PROFESSOR
SCHOOL OF LAW AND GOVERNANCE
CENTRAL UNIVERSITY OF SOUTH BIHAR

SUBMITTED BY:
ADITYA SINHA
B.A LL.B. (Hons.), Vth SEMESTER
ENROLLMENT NO. – CUSB2113125011
SCHOOL OF LAW AND GOVERNANCE
CENTRAL UNIVERSITY OF SOUTH BIHAR
CASE DETAILS

Appellants: State of U.P.

Respondent: Nawab Hussain

Citation: AIR 1977 SC 1680

Coram: Y.V. Chandrachud, C.J., P.K. Goswami and P.N. Shinghal, J.

Decided On: 04.04.1977

FACTS

 Respondent Nawab Hussain was a confirmed Sub-Inspector of Police in Uttar Pradesh.

 An anonymous complaint was made against him and was investigated, his report was
submitted to the Superintendent of Police on February 25, 1954.
 Two cases were registered against him under the Prevention of Corruption Act 1 and the
Penal Code2.
 They were also investigated, and the respondent was dismissed from service by an order
of the Deputy Inspector General of Police dated December 20, 1954.
 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 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 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

1
The Prevention of Corruption Act, 1988, Act No. 49 of 1988, available at
https://lddashboard.legislative.gov.in/sites/default/files/A1988-49_3.pdf
2
The Indian Penal Code, 1860, Act No. 45 of 1860, available at
https://lddashboard.legislative.gov.in/sites/default/files/A1860-45.pdf

2
 General of Police was not competent to dismiss him by virtue of the provisions of
Article 311(1)3 of the Constitution.
 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 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 plaintiff's appointing
authority.
 It however held that the suit was not barred by the principle of res judicata 4.
 The District Judge upheld the trial Court's judgment and dismissed the appeal on
February 15, 1963.
 The respondent 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.

ISSUES

1. Whether the principle of constructive res judicata was applicable to petitions under
articles 325 and 2266 of the Constitution?
2. Whether the principle of constructive res judicata 7 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?

3
Constitution of India, Art 311(1), available at
https://lddashboard.legislative.gov.in/sites/default/files/COI...pdf
4
Code of Civil Procedure, 1908 § 11, Act No. 5 of 1908, available at
https://lddashboard.legislative.gov.in/sites/default/files/A1908-05_0.pdf
5
Constitution of India, Art 32, available at https://lddashboard.legislative.gov.in/sites/default/files/COI...pdf
6
Constitution of India, Art 226, available at https://lddashboard.legislative.gov.in/sites/default/files/COI...pdf
7
Ibid[4]

3
AUTHORITIES

Statutes/Acts

 Indian Penal Code, 1860 8 : The Indian Penal Code is the official criminal code of the
Republic of India. It is a complete code intended to cover all aspects of criminal law. It
came into force in 1862 in all British Presidencies, although it did not apply to the
Princely states, which had their own courts and legal systems.

 Code of Civil Procedure, 19089 : The Code of Civil Procedure is a procedural law and
deals with the administration of civil proceedings in India. Once the proceedings are
initiated under it, rights and remedies of the parties will be governed by the Code. As it
is a settled proposition of law, if the law prescribes a procedure for anything to be done
then it is to be done in the manner prescribed only.

 Prevention of Corruption Act, 1988 10 : The Prevention of Corruption Act, 1988 (PCA,
1988) is an Act of the Parliament of India enacted to combat corruption in government
agencies and public sector businesses in India. The PCA 1988 has gone through many
amendments in order to better implement it. This article will highlight the features of
the Prevention of Corruption Act and also shed light on the amendments implemented.

 Constitution of India11 : The Constitution of India is the supreme law in India . A

Constitution is a set of rules and regulations guiding the administration of a country.
The constitution of India is the framework for political principles, procedures and
powers of the government.

8
Ibid[2]
9
Code of Civil Procedure, 1908, Act No. 5 of 1908, available at
https://lddashboard.legislative.gov.in/sites/default/files/A1908-05_0.pdf
10
Ibid[1]
11
Constitution of India, available at https://lddashboard.legislative.gov.in/sites/default/files/COI...pdf

4
From the Code of Civil Procedure

 Section 1112 : Section 11 of the Code of Civil Procedure (CPC) in India pertains to the
principle of res judicata, a fundamental legal doctrine that prevents the same issue or
dispute between parties from being re-litigated once it has been conclusively decided
by a competent court. This section emphasizes that a judgment, decree, or order passed
by a court of competent jurisdiction not only binds the parties involved but also operates
as res judicata in subsequent proceedings. It consists of eight explanations:

Explanation I: This explanation clarifies that any matter that could and should have
been raised as a defence or attack in a previous lawsuit cannot be raised as a fresh issue
in a subsequent lawsuit.
Explanation II: It establishes that any point that was directly and substantially in issue
in a former suit between the same parties and was decided as part of that suit is
conclusively binding in a later lawsuit.
Explanation III: This explanation states that any issue that was necessary for the
judgment or decree in a prior suit shall be treated as conclusive evidence in a subsequent
suit involving the same matter and the same parties.
Explanation IV: It emphasizes that the principle of res judicata applies not only to
plaintiffs but also to defendants, preventing both parties from reopening issues already
adjudicated upon.
Explanation V: Res judicata applies not just to the entire claim but also to any distinct
part of a claim for relief that has been decided in a previous suit.
Explanation VI: A decision of a court on a question of fact or law, if it was necessary
for the judgment in the prior suit, is considered conclusive in a subsequent suit.
Explanation VII: If a court has refused to exercise jurisdiction in a case, it cannot act as
a bar to subsequent litigation of the same issue in a court that has the authority to decide
it.
Explanation VIII: Res judicata also extends to matters that have been decided in
execution proceedings, and any decision in such proceedings can be invoked as a bar
to a subsequent suit.

12
Code of Civil Procedure, 1908 § 11, Act No. 5 of 1908, available at
https://lddashboard.legislative.gov.in/sites/default/files/A1908-05_0.pdf

5
From the Constitution of India

 Article 3213 : Article 32 of the Constitution (Right to Constitutional Remedies): It is

a fundamental right, which states that individuals have the right to approach
the Supreme Court (SC) seeking enforcement of other fundamental rights recognised
by the Constitution.
• The SC has power to issue directions or orders or writs for the enforcement of
any of the fundamental rights. The writs issued may include habeas corpus,
mandamus, prohibition, certiorari and quo-warranto.
• The right to move the SC shall not be suspended except as otherwise provided
for by the Constitution. Thus, the Constitution provides that the President can
suspend the right to move any court for the enforcement of the fundamental
rights during a national emergency (Article 359).
• In case of the enforcement of Fundamental Rights, the jurisdiction of the SC is
original but not exclusive. It is concurrent with the jurisdiction of the high court
underiArticlei226.

▪ Original, because an aggrieved citizen can directly go to the SC, not

necessarily by way of appeal.
▪ Concurrent means when the Fundamental Rights of a citizen are
violated, the aggrieved party has the option of moving either the high
court or the Supreme Court directly.
• Since the right guaranteed by Article 32 (ie, the right to move the SC where a
fundamental right is infringed) is in itself a fundamental right, the availability
of alternate remedy is no bar to relief under Article 32.
• However, the SC has ruled that where relief through the high court is available
under Article 226, the aggrieved party should first move the high court.
• In the Chandra Kumar case (1997), the SC ruled that the writ jurisdiction of
both the high court and the Supreme Court constitute a part of the basic
structure of the Constitution.

13
Ibid[5]

6
  Article 22614 : Article 226 of the Constitution empowers a high court to issue writs
including habeas corpus, mandamus, certiorari, prohibition and quo warranto for the
enforcement of the fundamental rights of the citizens and for any other purpose.The
phrase 'for any other purpose' refers to the enforcement of an ordinary legal right. This
implies that the writ jurisdiction of the high court is wider than that of the SC.This is
because the SC can issue writs only for the enforcement of fundamental rights and not
for any other purpose, that is, it does not extend to a case where the breach of an
ordinary legal right is alleged.The high court can issue writs to any person, authority
and government not only within its territorial jurisdiction but also outside its territorial
jurisdiction if the cause of action arises within its territorial jurisdiction.

 Article 311(1)15 : Article 311 (1) says that no government employee either of an all
India service or a state government shall be dismissed or removed by an authority
subordinate to the own that appointed him/her

14
Ibid[6]
15
Ibid[3]

7
PRECEDENTS

 Marginson v. Blackburn Borough Council16

The principle of estoppel per res judicata is a rule of evidence. As has been stated in
Marginson v. Blackburn Borough Council 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 community as a matter of public policy and
(ii) the 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, for
otherwise the spirit of contentiousness may give rise to conflicting 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 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.

 Greenhalgh v. Mallard17

The question that 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 L.J., has answered it as follows in Greenhalgh
v. Mallard :

16
[(1939) 2 KB 426]
17
[(1947) 2 All ER 255]

8
 I think that on the authorities to which I will refer it would be accurate to say
that 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 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.

 Devilal Modi v. Sales Tax Officer. Ratlam 18

On a consideration of the law as laid down by the Supreme Court in the above three
cases I am inclined to agree with the alternative argument of Sri K.C. Saxena, learned
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.

 Gulabchand Chhotalal Parikh v. State of Gujarat 19

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 subsequent regular
suit between the same parties with respect to the same matter. As appears from the

18
[(1965) 1 SCR 686]
19
[(1965) 2 SCR 547]

9
 report the above was the 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 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 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.

 Amalgamated Coalfields Ltd. v. Janapada Sabha, Chhindwara 20

This was a case between the same parties as Amalgamated Coalfields Ltd. v. Janapada
Sabha, Chhindwara21. 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 additional ground, but
that was not allowed by this Court and the writ petition 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
answered 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
judicata which is a special and artificial form of res judicata enacted by Section
11 of the C.P.C. should not generally be applied to writ petitions filed under

20
[AIR 1964 SC 1013]
21
[1962] 1 SCR 1

10
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
impugned tax liability is for different years.

11
JUDGEMENT

Supreme Court allowed the appeal and the impugned judgement of High Court was set aside
and respondent’s suit was dismissed. Supreme court observed that:

The rule engrafted in the explanation IV 22 to section 1123 of the code postulates that if a pea
could have been taken by a party in a proceeding between him and his opponent, he would not
be allowed to take that plea against the same party in a future proceeding which is based on the
same cause of action. It was particularly held that the doctrine of constructive res judicata was
applicable to writ petitions also. The Rule as declared by the Supreme Court in respect to the
plea of res judicata forbidding a subsequent suit on the ground of dismissal of a prior writ
petition under Article 226 of the Constitution is that, only that issue urged between the parties
will be res judicata which was raised in the earlier writ petition and was decided by the High
Court after contest. However, the important plea which was in the knowledge of the respondent
and could be taken in the writ petition, but he contended himself by urging other pleas that he
was not afforded with reasonable opportunity and the action taken against him was mala-fide.
It was not permissible for him to challenge his dismissal and in the subsequent suit, questioning
the validity of the dismissal order given by the authority subordinate to that by which he was
appointed, was clearly barred by the rule of constructive res judicata.

In the words of the Hon’ble Supreme Court24,

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 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 respondent and could well have been
taken in the writ petition, 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 depart mental 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

22 Code of Civil Procedure, 1908 § 11, Explanation IV, Act No. 5 of 1908, available at
https://lddashboard.legislative.gov.in/sites/default/files/A1908-05_0.pdf
23 Ibid[12]

24
State of U.P. Vs. Nawab Hussain, AIR 1977 SC 1680, para 8

12
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.

13
CONCLUSION

In conclusion, the case of "State of U.P. vs. Nawab Hussain" provides us with a profound
understanding of the pivotal legal doctrines of Res Judicata and Constructive Res Judicata,
which play a crucial role in ensuring the fair and efficient administration of justice within our
legal system.

Res Judicata, a well-established principle in jurisprudence, seeks to uphold the finality of

judicial decisions. It prevents the same matter from being re-litigated between the same parties,
once a competent court has rendered a final judgment on the merits of the dispute. This doctrine
serves several essential purposes, including the prevention of multiplicity of proceedings, the
preservation of judicial resources, and the assurance of consistency and certainty in legal
outcomes. It upholds the principle that once a matter has been conclusively adjudicated, it
should not be revisited, thereby promoting stability in legal relationships. Constructive Res
Judicata, an extension of the Res Judicata doctrine, broadens its scope by encompassing not
only matters actually decided but also those that could and should have been raised in the
previous litigation. It ensures that parties do not abuse the legal process by fragmenting their
claims and defences across multiple lawsuits, thereby safeguarding the integrity of the judicial
system.

In the judgment delivered by the honourable judges in the case of "State of U.P. vs. Nawab
Hussain," the significance of both Res Judicata and Constructive Res Judicata was highlighted.
The judges reaffirmed that these doctrines are indispensable tools for maintaining the finality
of judicial decisions and for preventing the undue burden on the court system caused by
repetitive litigation. Furthermore, the judgment emphasized the importance of parties bringing
all relevant issues before the court during the initial litigation to avoid later claims of
constructive res judicata. By doing so, the courts can efficiently resolve disputes and ensure
that justice is served without unnecessary delays or procedural complications.

In essence, the case of "State of U.P. vs. Nawab Hussain" underscores the vital role played by
Res Judicata and Constructive Res Judicata in the legal landscape. These doctrines are not mere
technicalities but rather cornerstones of our justice system, promoting fairness, efficiency, and
the preservation of judicial integrity. As we move forward in the realm of jurisprudence, it is
imperative that we continue to respect and apply these doctrines judiciously to maintain the
sanctity of judicial decisions and uphold the rule of law.

14
REFERENCES

Websites –

• https://www.manupatrafast.in/
• https://www.scconline.com/
• https://legislative.gov.in/

Books -

• Eighth Edition, M.P. Jain, Indian Constitutional Law

• 13th Edition, V.N. Shukla's, Constitution of India
• Ninth Edition, C.K Takwani, Civil Procedure

Cases/Judgements –

• State of U.P. Vs. Nawab Hussain, AIR 1977 SC 1680

• Marginson v. Blackburn Borough Council, [(1939) 2 KB 426]
• Greenhalgh v. Mallard [(1947) 2 All ER 255]
• Devilal Modi v. Sales Tax Officer. Ratlam [(1965) 1 SCR 686]
• Gulabchand Chhotalal Parikh v. State of Gujarat [(1965) 2 SCR 547]
• Amalgamated Coalfields Ltd. v. Janapada Sabha, Chhindwara [AIR 1964 SC 1013]

Acts and Other Documents –

• Constitution of India
• Prevention of Corruption Act, 1988
• Indian Penal Code, 1860
• Code of Civil Procedure, 1908

15