SAR OJA . ..,, v.

CHINNUSAMY (DEAD) BY LRS. AND ANR.

AUGUST 24, 2007

IT ARUN CHATTERJEE AND P.K BALASUBRAMANY AN, JJ.)

Code of Civil Procedure, 1908:

c s. l I-Res judicata-Property dispute-Respondent No.3 filed suit against her husband, 'K', for declaration of title-No appearance caused by'K'-While suit still pending, 'K' sold property to Appel/ant-:-Appel/ant dir/ not implead herself in suit filed by Respondent No.3-lnstead filed suit against Respondent No.3 for declaration of title in respect of same property- Former suit decreed ex-parte in favour of Respondent No.3 during pendency D of subsequent suit filed by Appel/ant-'K' did not take step to set aside the ex-parte decree which attained finality-Effect of-Held: By virtue of the exparte decree passed in the former suit, subsequent suit filed by Appellant is hit by Res judicata, as all six conditions indicated in s.11 for constituting res judicata are duly satisfied

E In 1989, Respondent No.3 filed a suit against her husband, 'K', for declaration of title in respect of a property, claiming title in terms of an oral partition made in 1985. No appearance was caused by 'K', although service of notice was effected on him. While the suit was still pending, 'K' sold the property to Appellant in 1990. Appellant did not take any step to implead herself

F in tfie suit filed by Respondent No.3 against 'K'. Instead, in 1990 itself, ...

Appellant filed a suit against Respondent No.3, for declaration of title in respect of the very same property claiming absolute ownership and possession.

In 1992, the former suit was decreed e:x-parte in favour of Respondent No.3 during pendency of the subsequent suit filed by Appellant. 'K' did not take any step to set aside the ex-parte decree. The e:x-parte decree passed in the G former suit attained finality. In 1993, the subsequent suit filed by Appellant was also decreed. Respondent No.3 filed appeal against the decree in the subsequent suit which was allowed by the First Appellate Court. High Court confirmed the judgment of the First Appellate Court holding that the e:x-parte . decree passed in favour of Respondent No.3 in the former suit operated as res '

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SAROJA v. CHINNUSAMY (DEAD) BY LRS. 305

judicata in the subsequent suit filed by Appellant. Hence the present appeal. A

Dismissing the appeal, the Court

HELD: I. The general principles of res judicata have been incorporated in Section 11, CPC. After a careful reading of the provisions under Section 11, CPC, it is discernible that in order to constitute res judicata, the following B conditions must be satisfied:

(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.

(iv) The matter directly and substantially in issue in the subsequent

l 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. (Para 4J [307-F; 308-8, C, D, El

2.1. The ex parte decree passed in the former suit would operate as res judicata in the subsequently filed suit of the appellant as all the six conditions indicated in Section 11, CPC for constituting resjudicata were duly satisfied. (Para 8( (310-D, E)

2.2. So far as the conditions namely (i), (ii) and (iii) are concerned, no dispute can be raised or was raised by the parties as the said conditions have been fully satisfied in the facts of this case. (Para 81 (310-E)

2.3. With regard to condition no. (iv), admittedly, summons was duly served upon 'K', the husband of Respondent No.3, and inspite of such service G of summons, 'K' thought it fit not to appear or to contest the suit filed against him. Once an ex parte decree is passed against 'K', 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 H

A 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, Condition No. (iv) was. satisfied and accordingly it cannot be held that the principle of res judicata would not apply. Admittedly, the appellant in her plaint had not made any case of fraud or collusion either B against 'K' or against the respondents. When the subsequent suit was filed,

the ex partedecree 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 appellantto 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 C the pendency of the subsequent suit. This, however, was not done by her.

Therefore, 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 'K' in the manner indicated above or, since, even the ex parte decree was also not challenged on the ground that 'K' and respondent No. 3 colluded amongst themselves and out of such collusion, 'K' during the pendency of the D 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 'K' and the appellant in respect of the suit property was a fraudulent one. I.Para 9) [310-G; 311-A, B, C, D, E)

E 2.4. Appellant was litigating on the basis of the title acquired by her from 'K' against whom the ex parte decree was passed in the former suit.

Appellant, although was not a party to the former suit, claimed through 'K' in the suit subsequently filed by her. In order to sustain the plea of res judicata, it is not necessary that all the parties to the two litigations must be common.

Allthat is necessary is that the issue should be between the same parties or F between parties under whom they or any of them claim. Therefore, Condition

(v) is lso satisfied. (Para 101 (312-G; 313-AI

2.5. Condition No. (vi) is also fully satisfied. [Para Ill [313-BI

Arukkani Ammal v. Guruswamy The Law Weekly Vol.100 (1987) 707 G and Bramhanand Rai v. Dy. Director of Consolidation, Ghazipur AIR [19871

All 100, approved.

A.S. Mani (deceased) by L.Rs. Thirunavukkarasu & Ors. v. Mis. Udipi Hari Niwas represented by Partners and Ors., (1996) l Madras Law Journal 171, distinguished.

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SAROJA v. CHINNUSAMY (DEAD)BYLRS. [TAR UN CHA TTERJEE, J.] 307

/shwardas v. The State of Madhya Pradesh & Ors. AIR (1979) SC SSl A and Aanaimuthu Thevar (Dead) by Lrs v. Alagammal & Ors., JT (2005) 6 SC 333, relied on.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3907 of2007.

From the final Judgment and Order dated 4.3.2005 of the High Court of B Judicature at Madras in Second Appeal No. 840 of 1994.

R. Nedumaran and K.S. Mahadevan for the Appeallant.

V. Prabhakar, V. Subramani and Revathy Raghavan forthe Respondents. c The Judgement of the Court was delivered by

T ARUN 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 D 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 tum 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 D whether the High Court was justified in holding that the ex parte decree passed in favour ofSaroja 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 I I of the Code of Civil Procedure [ for short "CPC"], which reads as follows:

"I I. Res judicata. - No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially it:i 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 H

A 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 B must be satisfied -

(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 C the subsequent suit;

(iii) The matter directly and substantially in issue must be the same either actually or constructively in both the suits. .

(iv) The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the Court in the fonner 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 litigted under the same E title.

We shall come_ back to these conditions later.

5. Let us now nai; rate the facts leading to the filing of this appeal. Suit No.233of1989 [for short the former suit] was filed on 19th April, 1989 by F Saroja, respondent No. 3 herein and her minor children namely Suganthamani and Ramesh against her husband :Kuppusatny ar.d his tenant_ in t_he 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 G 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. 3195 had fallen to the share of respondent No. 3 and her minor son by an oral partition in 1985. While the fonner suit was pending, Kuppusamy, the defendant ......- in that suit and husband of the respondent No. 3 herein, sold the suit H property to Saroja, the' appellant herein by a registered sale deed dated 13th

SAROJA v. CHINNUSAMY (DEAD) BY LRS. [T ARUN CHA TTERJEE, J.] 309

June, 1990 for a consideration of Rs. 1,00,000/-. On 9th July, 1990, the Appellant A filed a suit being O.S. No. 493/1990 [for short 'the subsequent suit') in the District MunsifCourt, Mettur for declaration of title and pennanent 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 B 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 C her minor children. On I oth 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 D 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 E 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 F February, 1992 in which the right, title and interest in respect of the su:~ 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 ber minor children against Kuppusamy, although the appellant had purchased the suit property from G Kuppusamy. It 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 H

A with the question ofres judicata as raised in this appeal. In our view, the ex

parte decree passed in the fonner 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 frl>m Kuppusamy who had lost his title, even if there B 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 fonner suit could not operate as res judicata because in order to constitute res judicata within the meaning of Section I I of the CPC, lhe conditions as noted herein earlier have to be satisfied, which on the admitted C 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 haverbeen 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 D 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 E learned.counsel for the appellant. In our view, the ex partedecree passed in

Suit No.233 .of 1989 would operate as res judicata in the subsequently filed suit of the appellant as all the conditions iniiicated 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.· F

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 fonner suit". Learned counsel for , the :appellant sought 'to argue that since the fonner suit was decided ex pcirte, it could not be said that it was finally heard and decided G by the court and therefore, Condition (iv) wasinot satisfied and theprinciple

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 H and inspite of such service of summons, 'Kuppusamy thought it 'fit not to

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SAROJAv.CHINNUSAMY(DEAD)BYLRS.[TARUNCHATIERJEE, J.] 311

appear or to contest the suit filed against him. Once an ex parte decree is A 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 B 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 C 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. D 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 E 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 F case of Arukkani Ammal v. Guruswamy [The Law Weekly Vol. I 00 ( 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 G 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 H

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 C v. Dy. Director o/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. v.

Mis. Udipi Hari Niwas represented by Partners & Ors., (1996) l Madras Law Journal 171 invited us to hold that the principle of res judicata would not D 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 E 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.

F IO. Now let us deai with Condition No. (v) which says, "the 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 G 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 te former suit, claimed through Kuppusamy in the suit subsequently filed by her. In the case of lshwardqs

v. The State of Madhya Pradesh & Ors., AIR ( 1979) SC 551, this Court held H that in order to sustain the plea of res judicata, it is not necessary that all

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SAROJAv.CHINNUSAMY(DEAD)BYLRS.[TARUNCHATTERJEE, J.] 313

the parties to the two litigations must be common. All that is necessary is that A 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 B 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 C (Dead) by Lrs v. 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 D 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 E 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 F 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.

B.B.B.

Appeal dismissed. G