TMI Blog2007 (8) TMI 784X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 abov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 insp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecision 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]. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tle . 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 positi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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