Legal Question in Civil Litigation in India

1) Rule of constructive res judicata is engrafted under Explanation IV of Section 11 of the Code. It is artificial form of res judicata and provides that if a plea could have been taken by a party in a proceeding between him and his opponent, he should not be permitted to take that plea against the same party in a subsequent proceeding with reference to the same subject-matter.

That clearly is opposed to considerations of public policy on which the doctrine of res judicata is based and would mean harassment and hardship to the opponent.Besides, if such a course is allowed to be adopted, the doctrine of finality of judgments pronounced by the courts would also be materially affected.

2) Thus, it helps in raising the bar of res judicata by suitably construing the general principle of subduing a cantankerous litigant. That is why this rule is called constructive res judicata, which, in reality, is an aspect or amplification of the general principle of res judicata.