Saturday 25 September 2021

When subsequent suit will not be barred by constructive res judicata?

 Plea of res judicata is a restraint on the right of a plaintiff to have an adjudication of his claim. The plea must be clearly established, more particularly where the bar sought is on the basis of constructive res judicata. The plaintiff who is sought to be prevented by the bar of constructive res judicata should have notice about the plea and have an opportunity to put forth his contentions against the same. In this case, there was no plea of constructive res judicata, nor had the appellant-plaintiff an opportunity to meet the case based on such plea.{Para 20}

26. In the instant case, the High Court has not stated what was the ground of attack that the appellant-plaintiff ought to have raised in the first suit but had failed to raise, which she raised in the second suit, to attract the principle of constructive res judicata. The second suit is not barred by constructive res judicata.”

(emphasis supplied)

20. The finding of the trial judge on the applicability of the principles of res judicata was set aside on the ground that the plea was not clearly established and the plaintiff was not given the opportunity to contest the plea. Thus, in Alka Gupta (supra), this court set aside the decision of the High Court on the above ground.




Civil Appeal No. 10946 of 2014

The Jamia Masjid Vs  Sri K V Rudrappa

Author: Dr Dhananjaya Y Chandrachud, J

Dated:September 23, 2021

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