16/07/2026
"Law on constructive res judicata ( Indian sc)
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."
From a considered perusal of the above judgments, the following aspect of constructive res judicata can be highlighted:
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.
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'.
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.
In respect of 'ought' referred above, the said word implies the threshold to be above mere possibility.
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?
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.
Applying these principles to the present facts, 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.
From the above narration of facts, it is clear that the present proceedings are indirectly the culmination of a long history of litigation. Although the previous proceedings are not directly relevant they may nonetheless be set out below in a tabular form for completeness: 2016Scc434
