Makardhwaj Ram v. Jagdish Rai, Valuable Decision of the Supreme Court on Constructive Res Judicata

Saji Koduvath, Advocate, Kottayam

In Makardhwaj Ram v. Jagdish Rai, 2026 INSC 636, Supreme Court of India (Sanjay Karol, N. Kotiswar Singh, JJ.) rendered a valuable decision on Constructive Res judicata.

Crux of the Decision

  • 1. Though Constructive Res Judicata is a legal fiction, its application depends on the facts of each case.
  • 2. The principle of Constructive Res Judicata will not be applied in cases where the plaintiff had no occasion to plead the grounds and seek relief thereon, in the earlier litigation.

Facts in a Nutshell

  • The properties belonged to Mahabir Rai.
  • He transferred a portion, to his son, the present plaintiff, and others
  • In 1962, Mahabir Rai, his wife and others executed a GPA  to Rambhajan
  • In 1969 Rambhajan, first sold 21.43 acres using the GPA.
  • 33.76 acres also sold in a second sale in 1969.
  • The said GPA was cancelled by the grantors after the sales in 1969 itself.
  • Mahabir Rai, filed a suit for cancellation of saleof 21.43 acres.
  • Said suit was dismissed.
  • The reason was that the present plaintiff could not establish that he was the successor of his father.
  • The second transfer of 33.76 acres was challenged by wife of Mahabir Rai, as legal guardian of her minor children.
  • It was also dismissed.
  • Rambhajan GPA holder applied for mutation.
  • It was allowed in (revenue) appeal.
  • This mutation pushed the plaintiff, Makardhwaj, to file present civil suit.
  • The suit 2 has been filed for declaration of title and possession, against Rambhajan.  
  • By the judgment of 1993, the suit was partly decreed.
  • Appealed to the Additional District Judge
  • It was dismissed in 1996.
  • He took the matter to the High Court
  • By the impugned judgment, dismissed the suit.
  • The ground was – suit barred by constructive res judicata.

Grounds in Appeal

  • The earlier suits were filed to recover certain lands lost in two sales.
  • The present suit is filed in respect of the land that remained after the alienations.
  • The reliefs were declaration of title and possession.
  • The subject matter of the present suit is separate and distinct from the earlier suits.
  • The question of res judicata is a mixed question of law and fact.
  • The defendants did take the plea, but they did not file the plaint, WS etc.

Res Judicata under Section 11 CPC

Section 11 of the Code of Civil Procedure 1908 deals with res judicata.

It reads as under:

  • “11. Res judicata.—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 IV.—Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.”

Decisions Relied on

1. NagabhushanAmmal v. C. ChandikeswaraLingam, (2016) 4 SCC 434

  • For res judicata to apply, it has to be shown that not only the cause of action was the same, but also that the plaintiff had the occasion to seek the same relief in the earlier proceedings.

2. Morris LJ in Kameswar Pershad v. Rajkumari Ruttun Koer 1892 SCC OnLine PC 16

It is held in this decision as under:

  • …That it “might” have been, made a ground of attack is clear. That it “ought” to have been, appears to their Lordships to depend upon the particular fact of each case. Where matters are so dissimilar that their union might lead to confusion, the construction of the word “ought” would become important…

3. Daryao v. State of U.P., 1961 SCC OnLine SC 21, it was held as under:

  • “9. But, is the rule of res judicata merely a technical rule or is it based on high public policy? If the rule of res judicata itself embodies a principle of public policy which in turn is an essential part of the rule of law then the objection that the rule cannot be invoked where fundamental rights are in question may lose much of its validity. Now, the rule of res judicata as indicated in Section 11 of the Code of Civil Procedure has no doubt some technical aspects, for instance the rule of constructive res judicata may be said to be technical; but the basis on which the said rule rests is founded on considerations of public policy. It is in the interest of the public at large that a finality should attach to the binding decisions pronounced by Courts of competent jurisdiction, and it is also in the public interest that individuals should not be vexed twice over with the same kind of litigation. If these two principles form the foundation of the general rule of res judicata they cannot be treated as irrelevant or inadmissible even in dealing with fundamental rights in petitions filed under Article 32.” 

4. State of Karnataka v. All India Manufacturers Organisation, (2006) 4 SCC 683, B.N. Srikrishna J., held as under:

  • “38. The spirit behind Explanation IV is brought out in the pithy words of Wigram, V.C. in Henderson v. Henderson [(1843-60) All ER Rep 378 : (1843) 3 Hare 100 : 67 ER 313] as follows: (All ER pp. 381 I-382 A)
    • “The plea of res judicata applies, except in special case (sic), not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to everypoint which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time.” [Ibid., at pp. 381-82]
  • In Greenhalgh v. Mallard [(1947) 2 All ER 255 (CA)] (hereinafter “Greenhalgh [(1947) 2 All ER 255 (CA)] ”), Somervell, L.J. observed thus:
    • “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 subjectmatter 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.” [Ibid., at p. 257 H (emphasis supplied)]
  • The judgment in Greenhalgh [(1947) 2 All ER 255 (CA)] was approvingly referred to by this Court in State of U.P. v. Nawab Hussain [(1977) 2 SCC 806 at p. 809, para 4 : 1977 SCC (L&S) 362] . Combining all these principles, a Constitution Bench of this Court in Direct Recruit Class II Engg. Officers’ Assn. v. State of Maharashtra [(1990) 2 SCC 715 : 1990 SCC (L&S) 339 : (1990) 13 ATC 348] expounded on the principle laid down in Forward Construction Co. [(1986) 1 SCC 100] by holding that:
    • “[A]n adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had (sic) decided as incidental to or essentially connected with (sic) subject-matter of the litigation and every matter coming into the legitimate purview of the original action both in respect of the matters of claim and defence. Thus, the principle of constructive res judicata underlying Explanation IV of Section 11 of the Code of Civil Procedure was applied to writ case. We, accordingly hold that the writ case is fit to be dismissed on the ground of res judicata.” [Ibid., at p. 741, para 35, per L.M. Sharma, J.]”

5. Samir Kumar Majumder v. Union of India, (2024) 16 SCC 738, K.V. Viswanathan J., considered the law on constructive res judicata while dealing with an employment dispute as follows:

  • “Law on constructive res judicata
  • 33. Almost two centuries ago, in Henderson v. Henderson [Henderson v. Henderson, (1843) 3 Hare 100 : 67 ER 313] , the Vice-Chancellor Sir James Wigram felicitously puts the principle thus: (ER p. 319)
  • “In trying this question I believe I state the rule of the Court correctly when I say that, where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.”

Law Laid Down by the Apex Court on Constructive Res Judicata

After considering the above judgments, the following aspect of constructive res judicata is highlighted by the Apex Court –

  • “8.1 Constructive res judicata mandates that all grounds that might and ought to have been employed in the proceedings should be employed to avoid multiplicity of proceedings.
  • 8.2 It is a deeming fiction of law, but its application is not uniform and instead is dependent on the facts and circumstances of a particular case with ‘due regard to ambit of the earlier proceedings’ and ‘the nexus which the matter bears to the nature of the controversy’.
  • 8.3 This principle is founded on public policy. It is a generally acceptable rule that one person should not be “vexed twice over” for the same kind of litigation. As such, it also applies to the proceedings under Article 226/32 of the Constitution of India.
  • 8.4 In respect of ‘ought’ referred above, the said word implies the threshold to be above mere possibility.
  • 8.5 The parties while conducting litigation are expected to apply ‘reasonable diligence’, ‘legitimate purview’. It is from this lens that it shall be adjudicated whether all issues that were properly arising to the litigation; which ought to have been raised; were raised or not?
  • 8.6 The principle applies with equal force in cases where the ground that might and ought to have been raised was not done, on account of negligence, inadvertence or accident. In other words, might and ought to apply cumulatively with full force, without exception. The party therefore commits these errors at their own peril.

Question to be considered in the matter of Constructive Res Judicata

The Apex court laid down the point of law as under:

  • “The question is whether the earlier proceedings provided opportunity enough for the plaintiff by being substantially similar, to raise the point of his ownership of the suit properties by virtue of the 1960 sale deed when the main ground urged otherwise was cancellation of sale deed.”

That is, the question is whether:

  • the earlier proceedings afforded the plaintiff sufficient opportunity to claim ownership of the suit properties under the 1960 sale deed;
  • the matters in issue in both proceedings were substantially similar; and
  • the plaintiff (in the earlier suit), instead of asserting such title, mainly sought cancellation of the sale deed.

The above questions were answered in favour of the plaintiff by the Apex Court. It can be summarised as under:

  • By virtue of the 1960 sale deed, the appellant-plaintiff was the owner of a large extent of land.
  • The case of the plaintiff was that Rambhajan had wrongfully sold portions through two separate sales. (The subject matter of the present suit is separate and distinct from the earlier suits.)
  • In those proceedings, the plaintiff had no occasion to seek a declaration of title over the larger property, as his ownership under the 1960 sale deed was not in dispute.
  • The focus of the earlier proceedings was only on the validity of the impugned sale transactions.
  • The need to assert title over the entire property arose only when Rambhajan applied for mutation of his name in the revenue records in respect of land extending beyond the property covered by the sale transactions.
  • It was this claim over the larger extent of land that gave rise to a fresh apprehension regarding the plaintiff’s rights.
  • Consequently, the plaintiff instituted the present suit, asserting his title to the property, which, according to him, had remained unquestioned until then.

On the above, the Apex Court held that the impugned judgment of the High Court (based on the wrong application of Constructive Res Judicata) is liable to be set aside.

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