IMPORTANT POINT
Res judicata cannot be a matter of speculation or inference.

JUDGMENT :

PAMIDIGHANTAM SRI NARASIMHA, J.

1. Delay Condoned.

2. Leave granted.

3. This appeal by the plaintiff arises out of the judgment of the High Court of Madras¹ [Judgment and order dated 20.03.2019 in CRP (PD) No. 1454/2014] dismissing the Civil Revision Petition against the order passed by the District Munsif cum Judicial Magistrate, Portonovo² [Dated 27.01.2014 in I.A. No. 12 of 2010 in O.S. No. 60 of 2009] allowing Defendant No. 1’s objection to the plaint under Order VII Rule 11 of the CIVIL PROCEDURE CODE ³ [Hereinafter “CPC”] on the ground of res judicata. For the reasons to follow, we have allowed the appeal and held that the objection of res judicata cannot be taken to bar the suit under Order VII, Rule 11, CPC.

4. The facts relevant for the adjudication of the present appeal are that the appellant had purchased the disputed property from one Mr. Hussain Babu in 1998, who had in turn purchased it from Ms. Jayam Ammal in 1991. Appellant contends that while being in peaceful possession of the property, when an advocate- commissioner sought to inspect his property he made necessary enquiries and came to know that defendant No. 1, claiming to be a co-owner filed a suit⁴ [O.S. No. 298 of 1996] for partition against Ms. Jayam Ammal and others and also secured an ex-parte decree⁵ [Dated 29.07.1997 in O.S. No. 298/1996 passed by the Sub-Court, Cuddalore] in his favour. It is in execution of that ex-parte decree that the advocate-commissioner was appointed by the Court. Compelled by these circumstances, the appellant instituted the present suit⁶ [O.S. No. 60 of 2009] for declaration of title and permanent injunction. It is the specific contention of the appellant that the ex-parte decree had been fraudulently and collusively obtained, and it is also not binding on him.

5. The defendant opposed the suit by filing a written statement. Pending disposal of the suit, the defendant filed an Interlocutory Application⁷ [I.A. No. 12 of 2010 in O.S. No. 60 of 2009] under Order VII, Rule 11 of CPC contending that the plaintiffs suit is barred by res judicata as the earlier ex-parte decree has attained finality. The appellant countered it by contending that he was not a party to the earlier suit and therefore the principle of res judicata would not apply.

6. There is no doubt about the fact that the appellant is not a party to the suit decided on 29.07.1997. At the same time, there is also no doubt about the fact that the appellant claims title from Hussain Babu who was the third defendant in the earlier suit. However, the circumstances in which the ex-parte decree came to be passed, the alleged collusion between the parties in that ex-parte and also the reason for the ex-parte suit attaining finality are all specifically raised and contested in the present suit by the appellant. It is for this reason that the appellant also sought a decree for declaration.

7. In order to appreciate the claim and contest of the appellant, the relevant portions of the plaint are reproduced herein for ready reference:

“7. When plaintiff has been in peaceful possession and enjoyment of the suit property his vendors brother Rasool informed him that an advocate-commissioner is going to inspect the property. Plaintiff was naturally shocked. When further probed he informed the plaintiff that one Jayarama Chettiar had filed a suit against one Jayam Ammal wife of Rangasami Chettiar and others for partition in O.S. No. 298 of 1996 on the file of the subordinate judge, Cuddalore and Jayam Ammal died immediately after suit and her daughter Selvi did not contest the suit and allowed it to go ex-parte. Hussain Babu who is a party defendant to the suit was away in Abu Dhabi and he honestly believed that Selvi wi