constructive res judicata

Explanation IV to s.11 CPC treats any matter that might and ought to have been made a ground of defence or attack in the former suit as having been directly and substantially in issue in it. “Might” means the ground was available; “ought” means it was so connected with the matter in issue that the party was expected to raise it. The aim is to stop a party splitting his case and suing again on a ground he held back.

Distinguish Order II Rule 2, which is about reliefs and claims arising from one cause of action. Explanation IV is about grounds of attack or defence. The principle extends beyond suits to writ petitions and public interest litigation, though not to habeas corpus.

Example

Having challenged the sale deed only for fraud in the first suit, the plaintiff cannot sue again alleging lack of consideration; that ground is barred by constructive res judicata.

In Indian law

• Section 11, Explanation IV, Code of Civil Procedure, 1908
• Forward Construction Co. v. Prabhat Mandal (Regd.), Andheri, 1985 INSC 243: Explanation IV applied to public interest litigation

See also

res judicata · cause of action · nemo debet bis vexari pro una et eadem causa · interest reipublicae ut sit finis litium

Read more in the study notes

• Res judicata and bar to further suit (sections 11 and 12) (Civil Procedure Code and Limitation Act)