http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 9  

PETITIONER: STATE OF UTTAR PRADESH

       Vs.

RESPONDENT: NAWAB HUSSAIN

DATE OF JUDGMENT04/04/1977

BENCH: SHINGAL, P.N. BENCH: SHINGAL, P.N. CHANDRACHUD, Y.V. GOSWAMI, P.K.

CITATION:  1977 AIR 1680            1977 SCR  (3) 428  1977 SCC  (2) 806  CITATOR INFO :  R          1978 SC1283  (11)

ACT:              Constructive res Judicata--Matter which might or  ought         to have been raised in an earlier proceeding not  raised--If         principle of constructive res judicata applicable.

HEADNOTE:             In a writ petition filed under Art. 226 of the Constitu-         tion  impugning  his dismissal from service, the  respondent         contended  that  since he had not been  given  a  reasonable         opportunity  of  meeting the allegations  against  him,  his         dismissal  was  void.   The. writ  petition  was  dismissed.         Thereupon,  the  respondent flied a suit in  a  civil  court         challenging his dismissal on the ground, among others,  that         since he had been appointed by the Inspector-General of  Po-         lice,  his  dismissal  by the Deputy  Inspector  General  of         Police was wrong.  The State took the plea that the suit was         barred  by  res-judicata.  Dismissing the  suit,  the  trial         court  held  that it was not barred by  res-judicata.    The         first  appellate  court dismissed the  respondent’s  appeal.         Purporting to follow a line of decisions of this Court,  the         High  Court  held that only that issue between  the  parties         would  be res-judicata which was raised in the earlier  writ         petition and was decided by the High Court after contest and         since  in  this  case the respondent did not  raise  in  the         earlier  writ petition the plea of competence of the  Deputy         Inspector General of Police to dismiss him. the parties were         never at issue on it and that the High  Court never  consid-         ered  and decided this issue in the writ petition.   On  the         question  of  invoking the principle  of  constructive  res-         judicata  by  a party to the subsequent suit on  the  ground         that  the matter might or ought to have been raised  in  the         earlier proceedings, the High Court held that this  question         was  left open by the Supreme Court in Gulabchand  Chhotalal         Parikh v. State of Bombay [1965] 2 SCR 547, and allowed  the         respondent’s appeal.         Allowing the States appeal to this Court.             HELD:  The High Court was wrong in its view because  the         law  in  regard  to the applicability of  the  principle  of         constructive res-judicata having   been clearly laid down in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 9  

       Devi  Lal  Modi v. Sales Tax Officer   Ratlam   and   Others         [1965] 1 S.C.R. 686 it was not necessary to reiterate it  in         Gulabchand’s  case as it did not arise for consideration  in         that  case.  The clarificatory observation  in  Gulabchand’s         case  was misunderstood by the High Court in observing  that         the matter had been left open by this Court. .[435 G]             1.  The doctrine of res-judicata is based on  two  theo-         ries: (i) the finality and conclusiveness of judicial  deci-         sions  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  pro-         tected from multiplication of litigation.  [430 D]             2. (a) In certain cases, the same set of facts may  give         rise  to two or more causes of action.  In such  cases  res-         judicata  is not confined to the issues which the  Court  is         actually  asked to decide but 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  is  an         aspect or amplification of the general principle.  [431 A]             (b) Section 11 of the Code of Civil Procedure, with  its         six   explanations, covers almost the whole field,  but  the         section has, in terms, no application to a petition for  the         issue of a high prerogative writ.  [431 D]             (c)  Although  in the Amalgamated  Coalfields  Ltd.  and         others v. Janapada Sabha, [1962] 1 S.C.R. 1 this Court  held         that  constructive res-judicata being a special and  artifi-         cial form of res-judicata should not generally be applied to         writ  petitions, in Devilat Modi’s this Court held  that  if         the doctrine of constructive         429         res-judicata  was not applied to writ proceedings, it  would         be open to a party to take one proceeding after another  and         urge new grounds every time, which was plainly  inconsistent         with  considerations  of public policy.   The  principle  of         constructive res-judicata was, therefore, held applicable to         writ petitions as well.                                     [433 G & 434 D]            3. The High Court missed the significance of these  deci-         sions  and relied upon L. Jankirama lyer and ’Others  v.P.M.         Nilakanta  lyer and Others [1962] Supp. 1 S.C.R.  206  which         had  no bearing on the controversy.  In  Gulabchand’s  case,         this Court observed that it did not consider it necessary to         examine  whether the principle of constructive  res-judicata         could  be invoked by a party to the subsequent suit oft  the         ground  that  a  matter which might or ought  to  have  been         raised  in  the  earlier proceeding but was  not  so  raised         therein  could  be raised again relying on  which  the  High         COurt  concluded  that the question was left  open  by  this         Court.   This  in turn led the High Court to hold  that  the         principle  of resjudicata could not be made applicable to  a         writ petition.  [435 E-F]             In  the instant case, the respondent did not  raise  the         plea that he could not be dismissed by the Deputy  Inspector         General  of  Police.  This was an important plea  which  was         within  his knowledge and could well have been taken in  the         writ  petition. Instead he raised the plea that he  was  not         afforded a reasonable opportunity of meeting the case in the         departmental inquiry.  It was therefore not permissible  for         him to take in the subsequent suit the plea 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 and the High Court erred in taking

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 9  

       a contrary view.  [436 A-B]

JUDGMENT:         CIVIL APPELLATE JURISDICTION:CiVil Appeal No. 2339 of 1968.             (Appeal  by Special Leave fro.m the Judgment  and  Order         dated  the 27-3-1968 of the Allahabad High Court  in  Second         Appeal No. 2352 of 1963).              G.N. Dikshit, and O.P. Rana, for the appellant.              E.C. Agrawala, for the respondent.            The Judgment of the Court was delivered by             SHINGHAAL, J.  Respondent Nawab Hussain was a  confirmed         SUbInspector  of  Police  in Uttar  Pradesh.   An  anonymous         complaint  was  made  against him and  was  investigated  by         Inspector Suraj Singh who submitted his report to the Super-         intendent  of Police on February 25, 1954.  Two  cases  were         registered  against him under the Prevention  of  Corruption         Act  and  the Penal Code.  They were  also  investigated  by         Inspector Suraj Singh, 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 disci-         plinary 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         General  of  Police  was not competent to.  dismiss  him  by         virtue of the provisions of article 311 (1) of the Constitu-         tion.   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         430         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 plaintiffs appointing authority.  It however  held         that the suit was not barred by the principle of res judica-         ta.   The District Judge upheld the trial  court’s  judgment         and dismissed the appeal on February 15, 1963.  The respond-         ent 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. The appellant State of Uttar         Pradesh  has  therefore come up in appeal to this  Court  by         special leave.             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. As  we  have         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.  As  has  been stated in  Marginson  v.  Blackburn         Borough  council,(1) it may be said to be "the broader  rule         of  evidence which prohibits the reassertion  of a cause  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 9  

       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  inter-         est of the indidual that he should be protected from  multi-         plication  of  litigation.  It therefore serves not  only  a         public but also a private purpose by obstructing the reopen-         ing 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  other-         wise  the spirit of contentiousness  may give rise  to  con-         flicting 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  judg-         ment  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 iudicata.             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. 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(2) .--                              "I  think  that on the  authorities  to                       which I will refer it would be accurate to say                       that res judicata for this purpose is                       (1) [1939] 2 K.B. 426 at p. 437.                       (2) [1947] 2 All. E.R. 255 at p, 257.                       431                       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  re-                       spect 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.             These simple but efficacious rules of evidence have been         recognised for long, and it will be enough to refer’ to this         Courts  decision in Gulabchand Chhotalal Parikh v. State  of         Bombay(1)  for the genesis of the doctrine and its  develop-         ment over the years culminating in the present section 11 of         the  Code of Civil Procedure, 1908.  The section,  with  its         six  explanations,  covers almost the whole field,  and  has         admirably served the purpose of the doctrine. But it relates         to  suits  and former suits, and has, in  terms,  no  direct         application  to a petition for the issue of a high  preroga-         tive  writ.   The  general principles of  res  judicata  and         ,constructive  res judicata have however been acted upon  in         cases   of  renewed applications for a writ.   Reference  in         this connection may be made to Ex Parte Thompson(2).   There         A.J. Stephens moved for a rule calling upon the  authorities

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 9  

       concerned to show cause why a mandamus should not issue.  He         obtained  a rule nisi, but it was discharged as it  did  not         appear  that  there  had been a demand and  a  refusal.   He         applied  again  saying that there had been a  demand  and  a         refusal  since  then.  Lord Denman C.J.,  observed  that  is         Stephens was making an application which  had already  ’been         refused,   on fresh materials, he could not have  "the  Same         application  repeated from time to time" as they had  "often         refused rules" on that ground.  The same view has been taken         in  England in respect of renewed petition  for  certiorari,         quo warranto and prohibition, and, as we shall show, that is         also the position in this country.             We  find that the High Court in this case ’took note  of         the  decisions  this Court in L. Janakimma lyer  and  others         v.P.   M.   Nilakanta lyer and others(3),  Devilal  Modi  v.         Sales  Tax  Officer,  Ratlam  and others(4)  and  Gulabchand         Chhotalal   Parikh  v. State  of Bombay (supra) and  reached         the following conclusion :--                              "On a consideration  of the law as laid                       down by the Supreme Court in ,the above  three                       eases I am inclined to. agree with the  alter-                       native argument of Sri K.C. Saxena, learn-                       (1) [1965] 2 S.C.R. 547.                       (2) 6 Q.B. 720.                       (3) [1962] Supp. 1 S.C.R. 206.                       (4) [1965] 1 S.C.R. 686.                       432                       ed  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."         We  have gone through these cases.  Janakirama lyer’s was  a         case  where the suit which was brought by defendants 1 to  6         was withdrawn during the pendency of the appeal in the  High         Court  and was dismissed. In the mean time a suit was  filed         ’in  a representative capacity under Order 1 rule  8  C.P.C.         One of the defences there was the plea of res judicata.  The         suit  was decreed.  Appeals were filed against  the  decree,         but  the High Court dismissed them on the ground that  there         was  no  bar of res judicata  When the matter came  to  this         Court it was "fairly  conceded" that" in terms section 11 of         the Code of Civil Procedure could not apply because the suit         was filed by the creditors defendants 1 to 6 in their repre-         sentative  character and was conducted as  a  representative         suit,  and it could not be said that defendants 1 to  6  who         were  plaintiffs in the earlier suit and the  creditors  who         had  brought the subsequent suit were the same  parties   or         parties  who claimed through each other.  It was accordingly         held that where section 11 was thus inapplicable,’ it  would

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 9  

       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 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.             The  High Court then proceeded to consider this  Court’s         decisions  in Devilal Modi’s case (supra)  and  Gulabchand’s         case (supra). Gulabchand’s was the later of these two cases.         The High Court has interpreted it to mean as follows :--                             "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   subse-                       quent  regular suit between the  same  parties                       with  respect to the same matter.  As  appears                       from  the report the above  was 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                       433                       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  subse-                       quent  suit on the ground that a matter  which                       might  Or  ought to have been  raised  in  the                       earlier proceeding was not so raised therein."         As  we shall show, that was quite an erroneous view  of  the         decision  of  this Court ,on the  question  of  constructive         res-judicata.  It will help in appreciating the view of this         Court correctly if we make a brief reference to the.  earli-         er’  decisions in Amalgamated Coalfields Ltd. and others  v.         Janapada  Sabha,  Chhindwara(1) and  Amalgamated  Coalfields         Ltd. and another v. Janapada Sabha, Chhindwara,(2) which was         also a case between the same parties.  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  addi-         tional  ground, but that was not allowed by this  Court  and         the writ petitton 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   an-         swered  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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 9  

                     to writ petitions filed under Art. 32 or  Art.                       226.  In our opinion, constructive res judica-                       ta  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.  We would be reluctant to  apply                       this principle to the present appeals all  the                       more  because we are dealing with cases  where                       the  impungned tax liability is for  different                       years."         It may thus appear that this Court rejected the  application         of  the principle of constructive res judicata on the ground         that  it  was  a "special and artificial form of res judica-         ta"   and   should  not  generally  be   applied   to   writ         petitions,  .but  the matter did not rest there.   It  again         arose  for  consideration in Devilal  Modi’s  case  (supra).         Gajendragadkar,  J.  who  had spoken for the  court  in  the         second   case  of Amalgamated Coalfields Ltd. spoke for  the         Court in that case also. The         (1) [1962] 1 S.C.R. 1.    (2) [1963]. Supp. 1. S.C.R. 172.         434         petitioner in that case was assessed to sales tax and  filed         a writ petition to challenge the assessment.  The  petition-         was  dismissed  by the High Court and he came in  appeal  to         this Court.  He sought to make some’ additional  contentions         in  this Court, but was not permitted to do so.. He.  there-         fore  filed another writ petition in the High Court  raising         ,those’  additional contentions and challenged the order  of         assessment for the same year.  The High Court dismissed  the         petition on merits, and the case came up again to this Court         in appeal. The question which specifically arose for consid-         eration  was  whether the principle   of   constructive  res         judicata  was  applicable to writ petitions  of  that  kind.         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 party in a  proc-                       ceding between him and his opponent, he  would                       not b0 permitted to take that plea against the                       same party in a subsequent proceeding which is                       based  on the same cause of action; but  basi-                       cally,  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  consid-                       erations  of  public policy to which  we  have                       just referred."         While  taking that view, Gajendragadkar C.J., tried  to  ex-         plain  earlier  decision in Amalgamated Coalfields  Ltd.  v.         Janapada  Sabha, Chhindwara(1) and categorically  held  that         the principle of constructive res judicata was applicable to         writ  petitions  also.  As has been stated,  that  case  was         brought  to the notice of the High Court, but  its  signifi-         cance  appears to have been lost  because of the  decisions,         in Janakirama Iyer and others v.P.M. Nilakanta lyer  (supra)         and Gulabchand’s ease (supra).  We have made a reference  to         the decision in Janakirama Iyer’s case which has no  bearing         on  the’ present controversy, and we may refer to the  deci-         sion  in Gulabchand’s case as well.  That was a  case  where

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 9  

       the question which specifically arose for consideration  was         whether a decision of the High Court on merits. on a certain         matter  after contest, in a writ petition under article  226         of  the Constitution, operates as res judicata in a  regular         suit with respect to the same matter between the  same  par-         ties.   After a consideration of the earlier   decisions  in         England and in  this  country, Raghubar Dayal J., who  spoke         for the majority of this Court, observed as follows,-                             These  decisions of the  Privy   Council                       well  lay  down that the provisions of  s.  11                       C.P.C.  are not exhaustive with respect to  an                       earlier decision in a proceeding operating  as                       res judicata in a subsequent suit with respect                       ,to the  same matter inter parties, and do not                       preclude the. application to regular suits  of                       the general principles of res judicata   based                       on  public policy’ and applied .from  ancient.                       times."         (1) [1963] Supp. 1 S.C.R. 172.         435         He made a reference to the decision in Daryao and others  v.         The State of U.P. and others(1) on the question of res judi-         cata  and the decisions in Amalgamated Coalfields  Ltd.  and         others  v. Janapada Sabha, Chhindwara(2) and Devilal  Modi’s         case  (supra)  and summarised the decision of the  Court  as         follows :--                             "As a result of the above discussion, we                       are  of opinion that the provisions of  s.  11                       C.P.C.  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  contro-                       versy,  decided after  full contest  or  after                       affording  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                       competent  to  decide the subsequent  suit  or                       that the former proceeding and the  subsequent                       suit have the same subject matter.  The nature                       of the former proceeding is immaterial."         He  however went on to make the following  further  observa-         tion,-                             "We  may make it clear that it  was  not                       necessary,  and we have not considered, wheth-                       er 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                       proceeding was  not so, raised therein."         It  was this other observation which led the High  Court  to         take  the  view that the question whether the  principle  of         constructive  res judicata 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.  That in turn led  the         High Court to the conclusion that the principle of construc-         tive  res  judicata could not be made applicable to  a  writ         petition,  and  that was why it took the view  that  it  was         competent  for  the  plaintiff in  this case  to.  raise  an         additional plea in the suit even though it was available  to         him in the writ petition which was filed by him earlier  but

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 9  

       was  not taken.  As is  obvious, the  High Court went  wrong         in  taking  that view  because the law in  regard   to   the         applicability of the principle of constructive res  judicata         having  been  clearly laid down in the decision  in  Devilal         Modi’s  case (supra), .it was not necessary to reiterate  it         in Gulabchand’s case (supra) as it did not arise for consid-         eration there.  The clarificatory observation of this  Court         in  Gulabchand’s case (supra) was thus misunderstood by  the         High  Court  in  observing that the matter  had  been  "left         open"’ by this Court.             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         (1) [1962] 1 S.C.R. 574.   (2) [1963] Supp. 1 S.C.R.172         436         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  re-         spondent  and could well have been taken in the  writ  peti-         tion,  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 departmental inquiry  and  that         the  action taken against him was mala fide.  It was  there-         fore 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         constructive res judicata and the High Court erred in taking         a contrary view.             The appeal is allowed, the impugned judgment of the High         ’Court  dated March 27, 1968, is set aside and the  respond-         ent’s suit is dismissed.  In the circumstances of the  case,         we  direct  that the parties shall pay and  bear  their  own         costs.         P.B.R.                                      Appeal allowed.         436SCI/77--2500--12-10-77 GIPF.         437