Constructive Resjudicata under Explanation IV to Section 11 of CPC

In Forward Construction Co. & Ors. v. Prabhat Mandal, Andheri & Ors., AIR 1986 SC 391 the Supreme Court explained the scope of constructive res judicata as envisaged in Explanation IV to Section 11 of CPC and observed that the High Court was not right in holding that the earlier judgmentJudgment The statement given by the Judge on the grounds of a decree or order - CPC 2(9). It contains a concise statement of the case, points for determination, the decision thereon, and the reasons for such decision - Order 20 Rule 4(2).  Section 354 of CrPC requires that every judgment shall contain points for determination, the decision thereon and the reasons for the decision. Indian Supreme Court Decisions > Law declared by Supreme Court to be binding on all courts (Art 141 Indian Constitution) Civil and judicial authorities to act in aid of the Supreme Court (Art 144) Supreme Court Network On Judiciary – Portal > Denning: “Judges do not speak, as do actors, to please. They do not speak, as do advocates, to persuade. They do not speak, as do historians, to recount the past. They speak to give Judgment. And in their judgments, you will find passages, which are worthy to rank with the greatest literature….” Law Points on Judgment Writing > The judge must write to provide an easy-to-understand analysis of the issues of law and fact which arise for decision. Judgments are primarily meant for those whose cases are decided by judges (State Bank of India and Another Vs Ajay Kumar Sood SC 2022) would not operate as res judicata as one of the grounds taken in the present petition was conspicuous by its absence in the earlier petition.

The Court held as under:
“Explanation IV to S.11, CPC provides that 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. An 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 it decided as incidental
to or essentially connected with the subject matter of the litigation and every matter coming within the legitimate purview of the original action both in respect of the matters of claimA Claim A claim is “factually unsustainable” where it could be said with confidence before trial that the factual basis for the claim is entirely without substance, which can be the case if it were clear beyond question that the facts pleaded are contradicted by all the documents or other material on which it is based. or defence. The principle underlying Explanation IV is that where the parties have had an opportunity of controverting a matter that should be taken to be the same
thing as if the matter had been actually controverted and decided. It is true that where a matter has been constructively in issue it cannot be said to have been actually heard and decided. It could only be deemed to have been heard and decided. The first reason, therefore, has absolutely no force.”

Dr. Subramanian Swamy v. State of Tamil Nadu & Ors. (2014) 1 SCALE 79).
If the issue has been already decided on merit between the same parties in an earlier litigation, it cannot be decided again. Explanation (4) thereof, also provides or constructive res judicata which has to be read like the provisions of Order II Rule 2. It
also applies to the proceedings in the Suit.