D. K. SETH, J. ( 1 ) BY an order dated 27. 12. 1986, the Commissioner under Section 4 (2) of the U. P. Hindu public Religious Institutions (Prevention of Dissipation of Properties) Act, 1962, appointed the sub-Divisional Officer, Mirzapur as Investigating Officer in respect of the trust-Swami Sukdewa nand Ashram Trust. Against the said appointment, the respondent No. 5 had made an application for not holding enquiry which was dismissed by an order dated 14. 3. 1987. Against the said order, the respondent No. 5 herein had filed Misc. Appeal No. 43 of 1987 before the District judge, Mirzapur, who by an order dated 4. 5. 1987 allowed the appeal and held that the investigating Officer Sub-Divisional Officer, Dudhhi had no Jurisdiction to proceed with the enquiry into the affairs of the said trust. It is this order which has since been challenged by the petitioners. ( 2 ) MR. S. K. Singh, learned counsel for the petitioner, relies on the decision in the case of krishna. Nand Slngh v. Commissioner, - Varanasi Division, Varanasi and others, 1987 AWC 1207, and contends that the respondent No. 5 had challenged the said orders dated 27. 12. 1986 and order dated 14. 3. 1987 in Writ Petition No. 2559 of 1987 which has since been decided on 9. 4. 1987 and the same has been reported in the Journal as cited above. In addition, in the said wnt petition the notification dated 6. 12. 1983, by which one Sri D. S. Bagga was appointed commissioner, Varanasi Division, Varanasi as Commissioner under Section 4 of the said Act, was also challenged. ( 3 ) IN the appeal, a point was taken that said Sri Bagga admittedly professing Sikh religion was not a Hindu within the meaning of Section 4 (2) and that he was not empowered to appoint the sub-Divisional Officer as Investigating Officer in the absence of any notification empowering the Commissioner to delegate his power for appointing Investigating Officer. ( 4 ) WHILE deciding the said appeal on 4. 5. 1987, the appellate authority had come to a finding that the Commissioner, admittedly a Sikh, could not be appointed as Commissioner under the said act because he did not profess Hindu religion. ( 4 ) WHILE deciding the said appeal on 4. 5. 1987, the appellate authority had come to a finding that the Commissioner, admittedly a Sikh, could not be appointed as Commissioner under the said act because he did not profess Hindu religion. He also held that in the absence of anything to indicate that the Commissioner was empowered to delegate his power by appointing an investigating Officer under the said Act. He also had dealt with the question as to the maintainability of the appeal which was filed under Section 12 of the said Act since originally the appeal lay before the Commissioner, but on facts he had distinguished the same and held the appeal to be maintainable. For our present purpose, it is not necessary to go into the said question and i, therefore, refrain from making any observation with regard to the said question of maintainability of the appeal. ( 5 ) NO where from the order passed in the appeal, it appears that the appellant had disclosed about the decision dated 9. 4. 1987 passed in the case of Krishna IV and Singh (supra) before the appellate court though decision in the said case was given on 9. 4. 1987 and the appeal court decided the appeal on 4. 5. 1987. Even in the counter-affidavit filed before this Court by the said krishna Nand Singh, who is respondent No. 5, affirmed on 18th August. 1988, he has not disclosed anything about the said decision dated 9. 4. 1987. It is apparent that the question involved in the appeal, namely, the validity of the order dated 27. 12. 1986 and 14. 3. 1987 were very much challenged in the writ petition which has been decided on merits by the said order dated 9. 4. 1987, before the appeal was taken up for hearing. The said order was obtained at the initiation of respondent No. 5, herein, who had persued two parallel proceedings, one before this court in Lucknow Bench and the other before the appellate court. Once an issue has been decided. It was incumbent upon the appellant-respondent No. 5 herein who was appellant in the said appeal to disclose the fact that the issue has already been decided by a higher forum. Once an issue has been decided. It was incumbent upon the appellant-respondent No. 5 herein who was appellant in the said appeal to disclose the fact that the issue has already been decided by a higher forum. Once issue is decided in the said case between the same parties, it is no more open to challenge the same and obtain an order contrary to the decision passed by this Court. ( 6 ) THUS, it is apparent from the facts as disclosed above, that the respondent No. 5 had misled the appellate court. Even in the affidavit affirmed on 18th August, 1988 being counter-affidavit filed in this case, he has not disclosed about the order passed by a Division Bench of this Court in lucknow Bench involving the same issues as involved in the present writ petition. It cannot be said that the respondent No. 5 was not aware of the decision in his own case or that he was not aware of the two proceedings. Thus, there are reasons to believe that the statement made on oath in the counter-affidavit are incorrect and suffers from suppression of material facts and the same was aimed at misleading this Court for obtaining advantage of the order dated 4. 5. 1987 passed in the appeal No. 43 of 1987 despite having lost his case through his writ petition in the case of krishna Nand Singh (supra ). ( 7 ) THEREFORE, it appears that it is a fit case for taking steps as against said respondent No. 5 under section 340 of the Cr. P. C. Accordingly, the District Judge, Mirzapur shall take steps for initiation of the proceedings under Section 340, Cr. P. C. as against respondent No. 5 in view of the fact stated above, on the basis of the materials of the case which may also include the statement made in the counter-affidavit filed before this Court. ( 8 ) SINCE identical issues were involved in both the appeal and in the writ petition, therefore, the decision in the case of Krishna Nand Singh (supra) cited above shall operate as res judicata after 9. 4. 1987 in respect of the appeal by reason of the principle of Explanation IV to Section 11, c. P. C. and, therefore, the decision dated 4. 5. 4. 1987 in respect of the appeal by reason of the principle of Explanation IV to Section 11, c. P. C. and, therefore, the decision dated 4. 5. 1987 in the said appeal in the circumstances becomes non-est and as such, the same does not have any legal existence and accordingly same stands set aside. ( 9 ) MR. T. P. Singh, learned counsel for respondent No. 5, contends that in the appeal, the question raised was that the Commissioner was not empowered through proper delegation of power conferred on him under the said Act through proper notification by the State Government as contemplated under the Act. But that question has not been decided in the decision in Krishna nand Singh (supra) cited above, therefore, the said question still remains open to be decided in the present writ petition. He also draws my attention to an order dated 4th September, 1987 whereby learned standing counsel was given time to obtain instructions with regard to such delegation of power. Relying on the said order, Mr. T. P. Singh submits that this Court should decide this issue which has since not been decided in the case of Krishna Nand Singh (supra ). ( 10 ) A perusal of the decision in Krishna Wand Singh (supra), shows that the notification dated 6. 12. 1983 (contained in Annexure-1a to that writ petition) by which the Commissioner was appointed, was challenged in the said writ petition while in effect challenging the orders dated 27. 12. 1986 and 14. 3. 1987 which were subject-matter of challenge in the appeal itself. Challenge to the notification dated 6. 12. 1983 was ancillary and consequential for the purpose of challenging the order dated 27. 12. 1986 and order dated 14. 3. 1987. The very question of delegation of power taken in the appeal was also ancillary to the orders dated 27. 12. 1986 and 14. 3. 1987 challenged in the said appeal. In both the proceedings, the respondent No. 5 had sought to challenge the orders dated 27. 12. 1986 and 14. 3. 1987 on the ground that there was no delegation of power in order to assail appointment of the Investigating Officer by the commissioner. Therefore, the very issue was very much involved between the parties in the case of Krishna Nand Singh (supra), through challenging the notification dated 6. 12. 1983. 12. 1986 and 14. 3. 1987 on the ground that there was no delegation of power in order to assail appointment of the Investigating Officer by the commissioner. Therefore, the very issue was very much involved between the parties in the case of Krishna Nand Singh (supra), through challenging the notification dated 6. 12. 1983. The question that the Commissioner having been professing Sikh religion was not a Hindu within the meaning of the said Act, has since been decided in the said decision, it is binding on the parties and as such, the same cannot be gone into any further. The question of validity of the order dated 14. 3. 1987 being involved in the said case of Krishna Nand Singh (supra), the issue of delegation of power was also directly involved in the said case between the same parties. Though it does not appear that the said very issue was proposed or raised in the said case by respondent No. 5 who was petitioner therein. Thus, the issue which ought to have been raised but was not raised, shall be deemed to have been raised by virtue of principle of constructive res judicata. ( 11 ) CONSTRUCTIVE res Judicata is a special and artificial form of res Judicata enacted by Section 11 of C. P. C. as is held in the case of Amalgamated Coalfields u. Janapadasabha. AIR 1964 SC 1013 . The rule of constructive res judicata may be said to be technical but the basis on which the said rule rests is founded on considerations of public policy as laid down in the case of Daryao v. State of U. P. and others, AIR 1961 SC 1457 . The matter which might and ought to have been made a ground of attack or defence in the former suit but which was not done so by any of the parties, will also be deemed to have been a matter directly and substantially in issue in such suit and the rules of res judicata will equally apply to it. Such a matter is regarded as having been constructively in issue and since the parties had an opportunity of putting it forward, it is considered as having been actually controverted and decided. Such a matter is regarded as having been constructively in issue and since the parties had an opportunity of putting it forward, it is considered as having been actually controverted and decided. The Explanation IV to Section 11 of C. P. C. makes it obligatory upon the parties to put forward all titles, claims or defence that were available least they would be debarred from raising those question in subsequent suit. By reason of Explanation IV, no distinction is made between a claim or defence actually made or which might and ought to have been made. By fiction of law, the latter also is deemed to have been directly and substantially in issue in the former suit. The effect of Explanation IV is that a matter which might and ought to have been made a ground of attack or defence in a former suit is to be deemed to have been directly and substantially in issue in such suit. It must also be assumed at the same time that such matter is to be deemed to have been heard and finally decided in the suit. No express finding on a matter which might and ought to have been raised in the former suit is necessary or possible as no decision by Court can be expected on points not specifically raised before it. The reason being that it would be meaningless if it were necessary in a case which was covered by it that the matter should have been heard and finally decided in the previous suit. This principle has been enunciated in the case of Jamadar v. Serajuddin, 12 cwn 862 and Mahim v. Anilbandhu, 13 CWN 513. The word might presupposes that the party affected had knowledge of the ground of attack or defence at the time of previous suit. The principle of might and ought to have been raised must be held to be with reference to cause of action said to be available at the time when it is come up for final hearing. The word might presupposes that the party affected had knowledge of the ground of attack or defence at the time of previous suit. The principle of might and ought to have been raised must be held to be with reference to cause of action said to be available at the time when it is come up for final hearing. ( 12 ) IN the present case, the ground of attack was very much known to the petitioner and that was also empowered in the appeal which was filed before the writ petition was disposed of as such ground existed right from the day when the writ petition was filed and this was the main ground on which the matter was pushed through by the petitioner. ( 13 ) THIS principle is very much applicable in the writ proceedings as well, and, therefore, this issue is also barred by the principle of constructive res Judicaia. Accordingly, the said question cannot be gone into in the present writ petition though vehemently argued by Mr. T. P. Singh that this question was not decided in the earlier decision. In the result, the appellate courts order is being held to be non-est and stands quashed. A writ of certiorari do issue accordingly. ( 14 ) IN that view of the matter, this writ petition is disposed of in the light of the observations made above. No order as to costs. Registry is directed to communicate this order to the learned District Judge, Mirzapur within a period of two weeks, for the purpose of carrying out the direction contained in this order. .