Compilation Vol 3 Corrected (1-943).pmd - Goa Public Service ...

Karnataka PSC
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 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 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.”
(2) MURTUJA KHAN v. MUNICIPAL CORPORATION – (1975) 16 GLR 896 (para 22)
“There is still one more ground on which the challenge to the Constitutional validity of the
relevant provisions of the Act at the instance of the Petitioner is barred in this Writ Petition.
The Petitioner seeks the writ of mandamus which is not a writ of course or a writ of right,
but is, as a rule, the matter for the discretion of the court. Upon a prerogative writ of that
nature there may arise many matters of discretion which may induce the court to withhold
the grant of it – matters connected with delay or possibly with the conduct of the parties
(See BOMBAY MUNICIPALITY v. ADVANCE BUILDERS, AIR 1972 SC 793 at
page 800). Now, as stated earlier, the Petitioner had earlier filed Special Civil Application
No.425/1966 in this Court. It is not in dispute that the validity of the Act as a whole was,
inter alia, challenged in the said Writ Application. On the issue of the Rule, the Respondents
appeared and filed Affidavits and contested the Petition on merits. The Petition was
ultimately withdrawn and the Court which allowed the withdrawal made a speaking order.
The order was in the following terms:-
‘Mr. K.J.Vakharia, learned Advocate appearing on behalf of the Petitioner,
states that the only point raised in this petition relates to the validity of the
provisions of the Bombay Town Planning Act, 1954 and since that point is
already covered by two decisions of the Supreme Court, nothing survives in
the petition. He, therefore, withdraws the Petition and the Petition accordingly
stands withdrawn. There will be no order as to costs of the petition.’
The consequence of the withdrawal of the said writ petition in the eye of law was that it stood
dismissed on merits albeit on a concession made by or on behalf of the Petitioner to the effect that the
question of the Constitutional validity of the Act was no longer open in view of the decisions of the
Supreme Court. In other words, the effect of the dismissal by withdrawal was that the challenge of the
Petitioner to the actions of the Respondents under the Act on the ground that the said Act itself was
ultra vires stood concluded by an adverse decision of this Court based on his own concession. It is
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