http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

CASE NO.: Appeal (civil)  3907 of 2007

PETITIONER: Saroja

RESPONDENT: Chinnusamy (Dead) by L.Rs and Anr

DATE OF JUDGMENT: 24/08/2007

BENCH: TARUN CHATTERJEE & P.K.BALASUBRAMANYAN

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO 3907 OF 2007 (Arising out of SLP (C) No. 18570 of 2005)

TARUN CHATTERJEE, J.

1.      Leave granted. 2.      This appeal by grant of special leave is preferred by the  appellant against the judgment and decree of the High Court of  Judicature at Madras in Second Appeal No. 840 of 1994 whereby  the High Court had dismissed the second appeal and affirmed the  judgment of the first appellate court which in its turn had set  aside the judgment and decree of the trial court decreeing the suit  of the appellant.  3.       The core question which needs to be decided in this appeal  is whether the High Court was justified in holding that the ex  parte decree passed in favour of Saroja and her minor children  Suganthamani and Ramesh (Saroja being Respondent No.3 in  this appeal) would operate as res judicata in the subsequently  filed suit at the instance of the appellant against the respondents,  and out of which the present appeal arises.  4.      Before dealing with the facts of the present case and before  examining the merits of the question raised before us, as noted  hereinabove, let us first consider the general principles of res  judicata which have been incorporated in Section 11 of the Code  of Civil Procedure [ for short "CPC"], which reads as follows: "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."  

We have carefully examined the provisions under Section  11 of the CPC. After a careful reading of the provisions under  Section 11 of the CPC, it is discernible that in order to constitute  res judicata, the following conditions must be satisfied \026 (i)     There must be two suits - one former suit and  the other subsequent suit; (ii)    The Court which decided the former suit must  be competent to try the subsequent suit; (iii)   The matter directly and substantially in issue  must be the same either actually or constructively in  both the suits.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

(iv)    The matter directly and substantially in issue in  the subsequent suit must have been heard and finally  decided by the Court in the former suit; (v)     The parties to the suits or the parties under  whom they or any of them claim must be the same in  both the suits; (vi)    The parties in both the suits must have litigated  under the same title. We shall come back to these conditions later. 5.      Let us now narrate the facts leading to the filing of this  appeal. Suit No.233 of 1989 [for short the former suit] was filed  on          19th April, 1989 by Saroja, respondent No. 3 herein and  her minor children namely Suganthamani and Ramesh against her  husband Kuppusamy and his tenant in the District Munsif Court,  Mettur for declaration of title and permanent injunction in respect  of the property measuring 0.78.0 hectare situated in S.No. 56/5A,  Marakottai Karavalli village, District Salem, in the State of Tamil  Nadu (hereinafter referred to as the ’suit property’).  The case  that was made out by respondent No. 3 and her minor children in  the aforesaid suit was that the suit property having a 5 H.P. motor  pump set and a tiled house bearing D.No. 3/95 had fallen to the  share of respondent No. 3 and her minor son by an oral partition  in 1985. While the former suit was pending, Kuppusamy, the  defendant in that suit and husband of the respondent No. 3 herein,  sold the suit property to Saroja, the appellant herein by a  registered sale deed dated 13th June, 1990 for a consideration of  Rs. 1,00,000/-.  On       9th July, 1990, the Appellant filed a suit  being O.S. No. 493/1990 [for short ’the subsequent suit’] in the  District Munsif Court, Mettur for declaration of title and  permanent injunction alleging inter alia that she was the absolute  owner in possession of the suit property which was purchased by  her from Kuppusamy by a registered deed of sale dated 13th June,  1990 and that she had been in continuous possession of the suit  property from the date of her purchase and the Patta, Chitta and  Adangal also stood in her name. Respondent No. 3 filed her  written statement denying the material allegations made in the  plaint and alleging that the suit property had fallen to her share  along with her minor son by an oral partition which, however,  was denied by the appellant. On 24th February, 1992, an ex parte  decree was passed in the former suit in favour of respondent No.  3 and her minor children. On 10th November, 1993, the  subsequent suit filed by the appellant was also decreed. An  appeal preferred against this decision by respondent No. 3 was  allowed by the First Appellate Court thereby dismissing the suit  of the appellant. The High Court in second appeal confirmed the  judgment of the First Appellate Court and thereby dismissed the  second appeal. It is against this decision of the High Court that  this appeal on grant of special leave has been filed.    6.      In the suit filed against Kuppusamy by respondent No.3  and others, no appearance was caused by Kuppusamy, although  service of notice was effected on him. When the suit filed by  respondent No.3 was pending and the suit filed by the appellant  was also pending before the District Munsif, Mettur, an  application was made at the instance of respondent No. 3 to  dispose of both the suits analogously which was opposed by the  appellant. The prayer for analogous hearing of the suits was  rejected by the Court. When both the suits were proceeding  separately, an ex parte decree, as noted herein above, was passed  in the former suit filed against Kuppusamy on 24th February,  1992 in which the right, title and interest in respect of the suit  property was declared in favour of respondent No. 3 and her  minor children. It may be stated herein that no step was taken by  the appellant to implead herself in the suit filed by respondent  No. 3 and her minor children against Kuppusamy, although the  appellant had purchased the suit property from Kuppusamy. It

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

may be further stated that no step was taken by Kuppusamy, the  vendor of the appellant or by the appellant to set aside the ex  parte decree. That is to say, the ex parte decree passed in the  former suit had attained finality. 7.      Keeping the aforesaid facts in our mind, let us now proceed  to deal with the question of res judicata as raised in this appeal. In  our view, the ex parte decree passed in the former suit during the  pendency of the subsequent suit of the appellant operates as            res judicata in the subsequent suit. It may be reiterated that the  appellant had alleged to have acquired title to the suit property by  purchase from Kuppusamy who had lost his title, even if there be  any, by the ex parte decree passed in the former suit.  8.      The learned counsel for the appellant argued that the ex  parte decree passed in the former suit could not operate as res  judicata because in order to constitute res judicata within the  meaning of Section 11 of the CPC, the conditions as noted herein  earlier have to be satisfied, which on the admitted facts of this  case, were not satisfied. The learned counsel for the appellant,  however, submitted that on the admitted facts of this case as  noted herein earlier, at least Conditions (iv), (v) and (vi) as  quoted herein earlier could not be said to have been satisfied.  This submission of the learned counsel for the appellant was  hotly contested by the learned counsel for the respondents. He  argued that all the conditions to constitute            res judicata, as  quoted herein earlier, have been satisfied and therefore the ex  parte decree passed in the former suit would operate as res  judicata in the subsequent suit filed by the appellant. Having  examined the contentions raised by the learned counsel for the  parties and having considered the admitted facts of the present  case and other materials on record, we are unable to agree with  the submission of the learned counsel for the appellant. In our  view, the ex parte decree passed in Suit No.233 of 1989 would  operate as     res judicata in the subsequently filed suit of the  appellant as all the conditions indicated herein earlier were duly  satisfied in the present case. So far as the conditions namely (i),  (ii) and (iii) are concerned, no dispute can be raised or was raised  by the parties before us as the said conditions have been fully  satisfied in the facts of this case. 9.      Let us, therefore, deal with Condition No. (iv) first which  says, "the matter directly and substantially in issue in the  subsequent suit must have been heard and finally decided by the  Court in the former suit". Learned counsel for the appellant  sought to argue that since the former suit was decided ex parte, it  could not be said that it was finally heard and decided by the  court and therefore, Condition (iv) was not satisfied and the  principle of res judicata could not be applied and accordingly the  ex parte decree in the former suit would not operate as res  judicata in the subsequent suit. We are unable to agree with this  contention of the learned counsel for the appellant. In this case,  admittedly, summons was duly served upon Kuppusamy and  inspite of such service of summons, Kuppusamy thought it fit not  to appear or to contest the suit filed against him. Once an         ex  parte decree is passed against Kuppusamy, in our view, the same  should be taken as a final decision after hearing. It is well settled  that an ex parte decree is binding as a decree passed after contest  on the person against whom such an ex parte decree has been  passed. It is equally well settled that an ex parte decree would be  so treated unless the party challenging the ex parte decree  satisfies the court that such an ex parte decree has been obtained  by fraud. Such being the position, we are unable to hold that  Condition No. (iv) was not satisfied and accordingly it cannot be  held that the principle of       res judicata would not apply in the  present case. In the present case, admittedly, the appellant in her  plaint had not made any case of fraud or collusion either against  Kuppusamy or against the respondents herein. It is true that when

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

the subsequent suit was filed, the ex parte decree in the former  suit had not been passed and, admittedly it was passed during the  pendency of the subsequent suit. But then it was open to the  appellant to file an amendment of the plaint in the subsequent suit  by introducing a case of fraud or collusion and by challenging the  ex parte decree on the ground of fraud also although the ex parte  decree was passed during the pendency of the subsequent suit.  This, however, was not done by her. Therefore, in our view, since  the appellant could not make out a case of fraud or collusion  challenging the transaction by which she had purchased the suit  property from Kuppusamy in the manner indicated above or,  since, even the ex parte decree was also not challenged on the  ground that Kuppusamy and respondent No. 3 colluded amongst  themselves and out of such collusion, Kuppusamy during the  pendency of the former suit sold out the suit property to the  appellant, it is not open to the court to hold that the said ex parte  decree would not operate as res judicata on the ground that the  transaction between Kuppusamy and the appellant in respect of  the suit property was a fraudulent one. In this connection,  reference can be made to a decision of Madras High Court in the  case of Arukkani Ammal Vs.  Guruswamy  [The Law Weekly  Vol.100 (1987) 707] which was also relied on by the first  appellate court. The Madras High Court in that decision observed  as follows :- "It is also difficult to appreciate the view taken by the  District Munsif that ex parte decree cannot be  considered to be ’full decree on merits’. A decree  which is passed ex parte is as good and effective as a  decree passed after contest. Before the ex parte  decree is passed, the court has to hold that the  averments in the plaint and the claim in the suit have  been proved. It is, therefore, difficult to endorse the  observation made by the Principal District Munsif  that such a decree cannot be considered to be a  decree passed on merits. It is undoubtedly a decree  which is passed without contest; but it is only after  the merits of the claim of the plaintiff have been  proved to the satisfaction of the trial court, that an  occasion to pass an ex parte decree can arise."                                   (Emphasis supplied). We are in full agreement with this view of the Madras High  Court holding that a decree which is passed ex parte is as good  and effective as a decree passed after contest. A similar view has  also been expressed by a Division Bench of the Allahabad High  Court in the case of Bramhanand Rai Vs. Dy. Director of  Consolidation, Ghazipur [ AIR 1987 All 100]. However, the  learned counsel for the appellant relying on a decision of the  Madras High Court, namely, A.S.Mani (deceased) by L.Rs.  Thirunavukkarasu & Ors. Vs. M/s.Udipi Hari Niwas  represented by Partners & Ors.  [1996 (1) Madras Law Journal  171] invited us to hold that the principle of    res judicata would  not apply as the former suit was decided ex parte. This decision,  in our view, is distinguishable on facts. In that decision, the  observation that the ex parte decree shall not operate as res  judicata was made on the basis that the earlier petition which was  filed for eviction against the tenants was dismissed only on  technical grounds, and after keeping this fact in mind only, the  Madras High Court held that the ex parte decree would not  operate as res judicata inasmuch as the petition was not heard and  finally decided as contemplated in Section 11 of the CPC.  Therefore, in our view, since condition No. (iv), as noted herein  before, was satisfied, we hold that the principles of res judicata  would be applicable in the present case as held by the First  Appellate Court and also affirmed by the High Court.  10.     Now let us deal with Condition No. (v) which says, "the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5  

parties to the suits or the parties under whom they or any of them  claim must be the same in both the suits". It is true that the  appellant was not a party to the suit filed by respondent No. 3 and  others against Kuppusamy from whom the appellant had  purchased the property by a registered deed of sale. In the present  case, the appellant was litigating on the basis of the title acquired  by her from Kuppusamy against whom the ex parte decree was  passed in the former suit. Therefore, it would not be difficult for  us to hold that the appellant, who although was not a party to the  former suit, claimed through Kuppusamy in the suit subsequently  filed by her. In the case of Ishwardas Vs. The State of Madhya  Pradesh & Ors. [AIR 1979 SC 551], this Court held that in order  to sustain the plea of            res judicata, it is not necessary that  all the parties to the two litigations must be common. All that is  necessary is that the issue should be between the same parties or  between parties under whom they or any of them claim".  (Emphasis supplied). Therefore, Condition (v) is also satisfied. 11.     Lastly, we deal with Condition No. (vi) which says, "the  parties in both the suits must have litigated under the same title".  We have to enquire whether the parties in the subsequent suit  were litigating under the same title for the purpose of determining  whether the ex parte decree passed in the former suit would  operate as res judicata in the subsequent suit filed by the  appellant. In our view, this condition is also fully satisfied. In this  connection, we may rely on a decision of this Court in the case of  Aanaimuthu Thevar (Dead) by LrsVs. Alagammal & Ors.  [ JT  2005 (6) SC 333]. In that case the former suit was jointly filed by  one Muthuswami as owner and mortgagor with the mortgagee in  respect of the suit property. The subsequent suit was filed by the  appellant in that appeal who had purchased the suit property from  Muthuswami. It was held by this Court that the appellant in that  appeal was litigating under the same title which Muthuswami had  in the suit property. In the background of such facts, this Court  held that since the issue of title of the suit property was directly  and substantially involved in the former suit, the suit filed by the  appellant in that appeal shall operate as           res judicata, or at  least, the suit was hit by the principle of constructive res judicata.  This being the position and in view of our discussions made  hereinabove, we hold that by virtue of the ex parte decree passed  in the former suit, the subsequent suit filed by the appellant is hit  by res judicata.  12.     No other point was raised by the counsel for the parties.   The applicability of the doctrine of lis pendens was also not  agitated by the counsel for the appellant before the High Court.   Accordingly we need not go into the question regarding the  applicability of the doctrine of lis pendens in the present case.  13.     For the reasons aforesaid, we do not find any merit in this  appeal. The appeal is thus dismissed. There will be no order as to  costs.