Might and ought means

In Asgar & Ors. Vs. Mohan Varma & Ors-05/02/2019 before Supreme Court:

The substantive part of Section 11 of the CPC together with Explanation IV provide thus:

“11. Res judicata.-No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.

Explanation IV- 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.” Under Section 11, a matter which has been directly and substantially in issue in a former suit between the same parties or between parties litigating under the same title cannot be raised before a court subsequently, where the issue has been heard and finally decided by a competent court.

Explanation IV enacts a deeming fiction. As a result of the fiction, a matter which “might and ought” to have been made a ground of defence or attack in a former suit shall be deemed to have been a matter directly and substantially in issue in such a suit. In other words, Explanation IV is attracted when twin conditions are satisfied: the matter should be of a nature which might and ought to have been made a ground of defence or attack in a former suit. Justice S Rangarajan (as the learned Judge then was) sitting as a Single Judge of the Delhi High Court in Delhi Cloth & General Mills Co. Ltd v Municipal Corporation of Delhi[9] noticed this feature :

“35…The words employed – might and ought – are cumulative; they are not in the alternative. It is a well-established rule that any plea which if taken would have been inconsistent with or destructive of the title in the earlier suit is not a matter which ought to be raised therein because even though it might also have been raised in the alternative. This aspect was explained by the Judicial Committee of the Privy Council in Kameswar Pershad v. Rajkumari Ruttan Koer (I.L.R. 20 Calcutta 79 at p. 85).

The possibility of merely raising it as a ground of attack or defence, at least in the alternative, is alone not sufficient; the test is one which is more compulsive, namely, that the said plea “ought” to have been taken as a ground of attack or defence. These features would of course depend upon the particular facts of each case.” The words “might and ought” are used in a conjunctive sense. They denote that a matter must be of such a nature as could have been raised as a ground of defence or attack and should have been raised in the earlier suit.

30. The “might and ought” requirement was construed by the Privy Council in a judgment of 1892 in Kameswar Pershad v Rajkumari Ruttun Koer[11 1892 SCC OnLine PC 16]. Lord Morris, speaking for the Privy Council, held thus: “That it “might” have been, made a ground of attack is clear. That it “ought” to have been, appears to their Lordships to depend upon the particular fact of each case. Where matters are so dissimilar that their union might lead to confusion, the construction of the word “ought” would become important; in this case the matters were the same.

It was only an alternative way of seeking to impose a liability upon Pun Bahadoor, and it appears to their Lordships that the matter “ought” to have been made a ground of attack in the former suit, and therefore that it should be “deemed to have been a matter directly and substantially in issue” in the former suit, and is res judicata.”

 The classical dictum on the subject finds formulation in the judgment of Wigram, V C in Henderson v Henderson13 :

“…I believe, I state the rule of the court correctly, when I say, that where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of a matter which might have been brought forward as part of the subject in contest, but which was not brought forward only because they have, from negligence, inadvertence, or even accident, omitted part of their case.

The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time…”