Code of civil procedure

State of Uttar Pradesh vs Nawab Hussain AIR 1977

Submitted to lovely professional university

In the proper fulfillment of requirements for the award of the degree of Bachelors of commerce

Course Code: LAW404

CLASS: BCOM L.L.B.

SECTION: L1603

Roll no.:01
SUBMITTED TO:
SUBMITTED BY:
MANIK BANSAL
(11617020)

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Court :Supreme Court of India

State of uttar pardesh vs nawab hussain

Bench:
Y.V Chandrachud ,C.J.P.K Goswamu and P.N.Singhal

APPELLANT/DEFENDANT: State of uttar pradesh

RESPONDENT/PLAINTIFF: Nawab Hussain

DATE OF JUDGMENT: 04.04.1977

AREA OF LAW:

Code of Civil Procedure -Section 11; Constitution of India - Article 226, Article 311, Article
311(1), Article 32

CASES REFERRED:

Devilal Modi v. STO, L. Jankirama Iyer v. P.N. Nilakanta Iyer,

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Acknowledgement

Working on the case of State of Uttar Pradesh vs nawab Hussain was a very knowledgeable
experience. The documentation has actually helped me in enrichment my knowledge on the case
and the subject. The case along with relevant sections and case laws was discussed at deep lengths
in the class which helped me in making this project.
I feel highly privileged to work under the guidance of Mam and sincerely acknowledge her efforts
in directly and indirectly contributing of this piece of work.

Thank you Mam!

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 Index

S.no Particulars Pg.no

1. Introduction 5
2. Facts 6
3. Procedural history 6
4. Question of law 7
5. Section brief 7
6. Arguments 7-9
7. Court’s decision 9-10
8. Conclusion 10-11
9. Recommendations 11
10. Bibliography 12

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Facts of the case

 Nawab Hussain was a confirmed Sub-inspector of Police in U.P

 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
writ petition and special appeal”
 The trial court dismissed the suit in 1960 but the High court decreed it in 1968

Procedural history

 DECISION OF TRIAL COURT :-

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 plaintiffs appointing authority. It however held that
the suit was not barred by the principle of resjudicata. First appeal was made by respondent to the
District Judge.

 DECISION OF DISTRICT JUDGE :-

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.

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  DECISION OF HIGH COURT :-

The High Court has taken the view that the suit was not barred by the principle of constructive res
judicata and that the respondent could not be dismissed by an order of the Deputy Inspector
General of Police .as he had been appointed by the Inspector General of Police. Trial Court, District
judge & High Court held that the suit was not barred by Constructive Res-Judicata.

Breif of section

Section 11 of code of civil procedure :

No Court shall try any suit or issue in which the matter directly and substantially in issue has been
directly and substantially in issue in a former suit between the same parties, or between parties
under whom they or any of them claim, litigating under the same title, in a Court competent to try
such subsequent suit or the suit in which such issue has been subsequently raised, and has been
heard and finally decided by such Court.

Explanation VI- Where persons litigate bona fide in respect of public right or of a private right
claimed in common for themselves and others, all persons interested in such right shall, for the
purposes of this section, be deemed to claim under the persons so litigating.

Issue:
Whether writ petition will be barred constructive resjudicata?

Arguments by the respondent :-

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 General of Police was not competent to.
dismiss him by virtue of the provisions of article 311 (1) of the Constitution.

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Arguments by the state
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."

SPECIAL LEAVE PETITION – SUPRERME COURT :-

The appellant State of Uttar Pradesh has there fore come up in appeal to this Court by special
leave.. As They reached the conclusion that the High Court committed an error of law in deciding
the objection regarding the bar of res judicata, it will , not be necessary for us to examine the other
point. The principle of estoppel per rem judicatam is a rule of evidence.

Observation -Supreme court

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 the community as a matter of public policy, and
(ii) the interest of the individual that he should be protected from multiplication of litigation.1
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.
That was clearly barred by the principle constructive res judicata and the High Court erred in
taking a contrary view.

CASE REFERED
L. Janakimma Iyer and others v. P. M. Nilakanta Iyer and others
It was held that where section 11 was thus inapplicable, ' it would not be
permissible to rely upon the general doctrine of res judicata, as the only ground
on which res judicata could be urged in a suit could be the provisions of section

1
Marginson v. Blackburn Borough council, ([1939] 2 K.B. 426

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11 and no other. That was therefore quite a different case' and the High Court
failed to appreciate that it had no bearing on the present controversy.

Devilal Modi v. Sales Tax Officer, Ratlam and others

While observing that the rule of constructive res judicata was "in a sense a
somewhat technical or artificial rule prescribed by the Code of Civil Procedure",
this Court declared the law in the following terms, --"This rule postulates that if
a plea could have been taken by a p arty in a proceeding between him and his
opponent, he would not be permitted to take that plea against the same party in
a subsequent proceeding which is based on the same cause of action; but
basically, even this view is founded on the same considerations of public policy,
because if the doctrine of constructive res judicata is not applied to writ
proceedings, it would be open. to the party to take one proceeding after another
an urge new grounds every time; and that plainly is inconsistent with
considerations of public policy to which we have just referred."

Gulabchand Chhotalal Parikh v. State of Bombay

The decision given by the High Court in the writ petition would not preclude the court, before
which the suit was filed, from deciding the same question an merits in the suit. This view,
while it does not make s. 11 of the Code an unnecessary provision, does not lead to any
practical difficulties, for, the decision of the High Court on a question of law will be
binding as an authority on Subordinate Courts and its decision on a question of fact will rarely
be differed from by the said courts.

Amalgamated Coalfields Ltd. and others v. Janapada Sabha, Chhindwara

The decision of the High Court can be upheld only if the principle of constructive res judicata
can be said to apply to writ petit ions filed under Art. 32 or Art. 226. In our opinion, constructive
res judicata which is a special and artificial form of res judicata enacted by section 11 of the
Civil Procedure Code should not generally be applied to writ petitions field under Art. 32 or Art.
226. So it was categorically held that the principle of constructive res judicata was applicable to
writ petitions.

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JUDGMENT :-

The appeal is allowed, the impugned judgment of the High 'Court dated March
27, 1968, is set aside and the respondent's suit is dismissed. In the circumstances
of the case, we direct that the parties shall pay and bear their own costs.

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