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2007(6) Supreme 90
Supreme Court of india
(From Madras High Court)
Tarun Chatterjee & P.K. Balasubramanyan, JJ.
Saroja — Petitioner
versus
Chinnusamy (Dead) by L.Rs and Anr. — Respondents
Appeal (civil) 3907 of 2007
(Arising out of SLP (C) No. 18570 of 2005)
Decided on : 24-08-2007
(b)Code of Civil Procedure, 1908 – Section 11 – 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. (Para 7)
(c)Code of Civil Procedure, 1908 – Section 11 – There being no dispute or in absence of any dispute raised regarding existence of two suits, the concerned court being competent to decide the subsequent suit and the matter in both the suits being directly and substantially the same, the first three conditions for applicability of res judicata are satisfied. (Para 8)
(d)Code of Civil Procedure, 1908 – Section 11 – An ex parte decree being binding as a decree passed after contest on the person against whom such an ex parte decree has been passed unless the decree has been obtained by fraud – That being not the case, condition (iv) is also satisfied. (Para 9)
The Law Weekly Vol.100 (1987) 707; AIR 1987 All 100 – Approved.
1996 (1) Madras Law Journal 171 – Distinguished.
(e)Code of Civil Procedure, 1908 – Section 11 – 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 – Appellant, who although was not a party to the former suit, claimed through Kuppusamy in the suit subsequently filed by her, thus satisfying condition (v). (Para 10)
AIR 1979 SC 551 – Relied upon.
(f)Code of Civil Procedure, 1908 – Section 11 – The last condition for applicability of res judicata is “the parties in both the suits must have litigated under the same title” – Since the issue of title of the suit property was directly and substantially involved in the former suit, this condition is also fully satisfied – Therefore, the former suit filed by the appellant shall operate as res judicata, or at least, the subsequent suit would be hit by the principle of constructive res judicata –. (Para 11)
(g)Code of Civil Procedure, 1908 – Section 11 – All the six conditions for applicability of res judicata having been satisfied, the doctrine held fully applicable to the instant case. (Para 11)
Facts of the case :
Suit No.233 of 1989 [the former suit] was filed on 19th April, 1989 by Saroja, respondent No. 3 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 (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, 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 [‘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.
Findings of the Court :
All the six conditions for applicability of res judicata having been satisfied, the subsequent suit is hit by the doctrine of res judicata.
Result : Appeal dismissed.
JUDGMENT
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—
(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 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 o
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