State of Uttar Pradesh v Nawab Hussain

• The respondent, a police officer, filed a writ petition under Article 226 challenging his dismissal on the ground that he had not been given a reasonable opportunity of meeting the allegations. The petition was dismissed. He then sued in a civil court, contending among other things that, having been appointed by the Inspector-General of Police, he could not be dismissed by the Deputy Inspector-General. The trial court and the first appellate court dismissed the suit; the High Court allowed his second appeal, holding that only issues actually raised and decided in the writ petition were res judicata.

1. Whether a plea that might and ought to have been raised in an earlier writ petition, but was not, is barred in a subsequent suit by constructive res judicata.

• The State's appeal was allowed. Res judicata rests on the finality of judicial decisions and on protecting individuals from repeated litigation. It is not confined to issues the court was actually asked to decide; it covers issues so clearly part of the subject matter, and so clearly capable of being raised, that a new proceeding on them would be an abuse of process. This is constructive res judicata, as already laid down in Devi Lal Modi v Sales Tax Officer (1965). The plea of the Deputy Inspector-General's incompetence could and should have been raised in the writ petition, so the suit was barred.

Constructive res judicata is an aspect of the general principle of res judicata. Where the same facts give rise to the challenge, a party must raise all the grounds available to him; grounds he could and should have raised are treated as decided.