The main legal point established in the judgment is the application of res judicata and constructive res judicata in the context of subsequent suits for declaration of a decree as null and void on the ground of fraud.

( 1 ) HEARD Sri Madhav Jain, advocate, appearing for the plaintiff/appellants and Miss Sunita agarwal, advocate, appearing for the contesting defendant/ respondents.

( 2 ) THE present second appeal arises out of the judgment and decree dated 21. 1. 1998, passed by the 1st Additional District Judge, Agra, in Civil Appeal No. 330 of 1977 whereby the lower appellate court has set aside the judgment and decree dated 5. 11. 1977, passed in Original Suit no. 57 of 1975. The suit was filed claiming relief of declaration in respect of the decree dated 17. 1. 1974 in Suit No. 447 of 1969, Smt. Muniran v. Safaq and Ors. , as null and void and also to injunct. the defendants from evicting the plaintiffs in pursuant to the execution of decree dated 17. 1. 1974 in Suit No. 447 of 1969.

( 3 ) THE disputed property is situated at Mohalla Kachchiyan Gudri Mansoor Khan, which was mortgaged by Mst. Nathia w/o Karim Bux and Juggi s/o Karim Bux in favour of Wilayat hussain grandfather of the plaintiff Safat Ullah and this mortgage was entered into on 14. 7. 1880. Smt. Muniran sent a notice of demand and possession to Safaq on 17. 3. 1969 and finally the Suit no. 447 of 1969 was instituted for eviction and recovery of arrears of rent by Smt. Muniran against Safaq s/o Shahzad Khan, Sattar s/o Naseera, Chinga s/o Hafiz Karim Bux, they were arrayed as the defendant Nos. 1, 2 and 3. The summons of the Suit No. 447 of 1969 were served through process server, which was returned unserved and finally the service was effected by publication in the daily newspaper padler Times, the service was held to be sufficient and the suit was decreed ex parte on 17. 1. 1974. An application under Order IX, Rule 13, C. P. C. was filed by Safat Ullah raising the plea of fraud in effecting service that they were successful in getting the ex parte decree in Suit No. 447 of 1969, this application was rejected 30. 3. 1974. S. C. C. Revision No. 120 of 1974 was preferred by Safat Ullah challenging the validity of the order dated 30. 3. 1974, whereby an application under Order IX, Rule 13, C. P. C. was rejected and a revision was also dismissed on 16. 1. 1975. Finally, instant Suit No. 57 of 1975 was instituted for declaration and injunction and the written statement was filed. Vide judgment and decree dated 5. 11. 1977, the trial court decreed the suit on the basis of finding that fraud was played by the defendants of the Suit No. 57 of 1975 in effecting service. The trial court has also framed as many as 8 issues while decreeing the suit, the original decree in Suit No. 447 of 1969 was declared to be null and void as it was obtained on the ground of fraud. The defendants preferred a Civil Appeal No. 330 of 1977 against the aforesaid judgment and decree. The appeal was allowed, which has been challenged in this second appeal. The appeal was filed on 31. 3. 1998 and at the time of admission, no substantial question of law was framed. However, when the appeal came up for hearing, an endorsement was made by Sri Madhav Jain, advocate, appearing on behalf of the appellants that ground nos. 3, 7, 10, 17, 18, 19, 20 raise substantial question of law. The ground No. 3 relates to one of the substantial questions of law : "because the court below further failed to consider that the plea of fraud raised in the suit was neither matter in issue nor the same was heard and decided by the Court while deciding the restoration application and in the absence of the existence of condition precedent for invocation of the principle of res judicate, the appellants-plaintiffs cannot be non-suited from their remedy of suit invoked before the competent court". The ground Nos. 19 and 20 relate to the admission of additional evidence as well as certain other evidence, which were refused. The order admitting additional evidence or refusing certain additional evidence was never challenged in the higher forum as such the same cannot be raised as a ground in the second appeal, much less