Similarly, where a defendant did not raise all the objections which he might and ought to have raised in the former litigation in controverting the plaintiffs claim, he will be barred from raising them in a subsequent suit between the same parties. Where a matter has been actually in issue in a former suit between the same parties, litigating under the same title, in a court competent to try such subsequent suit, it must have been heard and decided for the purpose of constituting res judicata but where a matter has been constructively in issue it could not from the very nature of things be heard and decided. Nevertheless it will be deemed to have been heard and decided against the party omitting to allege it, provided the conditions of res judicata are complied with. The plaintiff is precluded from raising in the subsequent suit the grounds of attack he might and ought to have raised in the former suit. An illustration will elucidate the point. A, a Hindu, dies leaving a widow. The widow makes a gift to her brother B of certain property belonging to A.
After the death of the widow, C alleging that he and A were members of a joint Hindu family sues B for a declaration of his title to the property by right of survivorship. The suit fails on the finding that A and C were separate. C cannot subsequently sue B to recover the same property on the ground that he was the nearest reversionary heir of A because C might and ought to have set up in the former suit both the capacities under which he claimed to be entitled to the property. The same thing applies to the defendant.
He cannot raise such grounds of defence in the subsequent suit which might and ought to have been raised in the former suit. A files a suit against B to recover money on a promissory note. B contends that the promissory note was obtained from him by undue influence. The suit is decreed in spite of his objection. The defendant subsequently wants to challenge the promissory note by a fresh suit on the ground of fraud and coercion.
This he cannot do as it was his duty to have resisted the former suit on the ground of fraud and coercion as well. The general rule is that if a matter could have been set up as ground of attack or defence in the alternative in the former suit, and if its introduction into that suit was necessary for a complete and final decision of the right claimed by the plaintiff therein, it will be deemed to be a matter which ought to have been made a ground of attack or defence in that suit, unless the matters in that and the subsequent suit are so dissimilar that there union might lead to confusion. 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 claim 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. Therefore, the judgment of the High Court in the earlier writ petition would operate as res judicata even where one of the grounds taken in the subsequent writ petition before the High Court was absent in the earlier petition.
[Forward Construction Co. & Ors. v. Prabhat Mandal (Regd.) Andheri & Ors., (1986) 1 S.