Madras High Court
R. Govindasamy (Died) And Ors. vs Kasthuri Ammal And Ors. on 18 March, 1998
Equivalent citations: (1998)2MLJ291, AIR 1998 MADRAS 218, (1998) 2 MAD LJ 291, (1998) 3 ICC 428, (1999) 2 CIVLJ 370
JUDGMENT S.M. Abdul Wahab, J.
1. Plaintiff is the appelant in the above second appeal. The suit was for declaration and permanent injunction.
2. The suit property which originally belonged to Mottaiya Gounder was settled in favour of his wife Thanjammal on 8.8.1972. After the settlement, Thanjammal was in possession and enjoyment of the suit properties. She filed a suit for declaration and injunction against the respondents 1, 2 and 4 and obtained a decree on 4.11.1976. On 30.5.1979, the plaintiff purchased the property from Thanjammal. Since the defendants interferred with the possession of the plaintiff, he has filed the suit.
3. The first defendant filed a written statement, which was adopted by the defendants 2 and 3. According to them, there was no settlement by Mottaiya Gounder. Thanjammal never enjoyed the suit properties. The third item measuring 3.67 acres was purchased by Ramaswamy Gounder on 22.12.1924 with his own funds. After Ramasamy's death, his son Munusamv and his wife enjoyed it. Mottaiya Gounder (sic) no connection with the suit property. The defendants have prescribed title by adverse possession. It was also contended that Mottaiya Gounder and Ramasamy Gounder were brothers and they form a joint family and the properties belonged to them. Therefore, the settlement by Mottaiya Gounder in favour of Thanjammal was not valid.
4. The trial court dismissed the suit and the lower appellate court has concurred with it. Hence, the plaintiff has filed this second appeal.
5. The only contention urged by the learned Counsel Mr. A.K. Kurnarasamy, appearing on behalf of the appellants is that the ex parte decree in O.S.No. 1213 of 1974 on the file of the District Munsif, Tindivanam, as evidenced by Ex.A.1 operates as res judicata against defendants 1, 2 and 4. The said suit was filed by Thanjammal, the vendor of the plaintiff for declaration and injunction against the defendants 1, 2 and 4 with reference to the suit properties and obtained an ex parte decree, As it was not set aside, it has become final.
6. On the other hand, the learned Counsel for the respondents Mr. D. Rajagopal contended that this question was raised in the earlier S.A.No. 1848 of 1981 before this Court and this Court found the reasoning of the first appellate court that the judgment operate as res judicata against the third defendant could not be sustained.
7. The learned Counsel for the appellants contended that even though the third respondent is not bound by the earlier judgment, the other respondents would be bound by the said judgment as they were parties. The learned Counsel for the appellants cited the following decisions in support of his contention.
1. Newton v. Official Trustee . 2. Chenniappa Mudaliar v. C.I.T., Madras (1964) 2 M.L.J. 157 (F.B.). 3. H.R. & C.E., Commr. v. V. Krishnaswami . 4. Vishnu Sugar Mills Ltd v. I.S.P. Trading Co. .
8. Newton v. Official Trustee . In the said case, ex parte decree was passed after filing the written statements and taking part in the proceedings for a considerable time, the appellants defaulted in appearance during the last stages. After distinguishing the Privy Council case New Brunswick Railway Co. v. British and French Trust Corporation 1939 A.C. 1, the Calcutta High Court Bench took the view that even if a decree is an ex parte, it will operate as res judicata in respect of all grounds of defence against the actual claim in the suit as also all matters inconsistent with such claim which might and ought to have been raised.
9. The next case cited by the counsel for the appellants is Chenniappa Mudaliar v. C.I.T. Madras (1964) 2 M.L.J. 157 (F.B.). it was held by the Full Bench that there is a real distinction between the case of dismissal of a legal proceeding for default of appearance and one given on merits. In the former case, it is termination of the proceeding for non-prosecution. Such termination decides nothing as regards the matters in controversy; it merely gets rid of the pending proceeding. Unless there be a statutory bar, the dismissal of a case for default, cannot prevent the party from commencing the same proceedings afresh but the institution of such fresh proceedings might become impossible on account of rules of limitation as to the filing of appeals or by reason of any specific provision in that regard under the Rules themselves. It will thus be apparent that the dismissal of a case for default can, in no sense, amount to an adjudication on its merits. This is quite unlike a case of an ex parte decision where there is an adjudication on the merits. A judgment given for default of appearance by the appellant cannot (unlike the case of an ex parte one) operate as res judicata.
10. Yet another decision cited by the learned Counsel for the appellants is reported in H.R. & C.E. Commr. v. V. Krishnaswami . A Bench of this Court in paragraph 12 has referred to the Full Bench judgment of this Court reported in Chenniappa Mudaliar v. C.I. T, Madras (1964) 2 M.L.J. 157 (F.B.) and has held as follows:
We may also refer to another decision of the Supreme court in Shivashankar v. Baikunith Nath Singh , wherein it has been held that before a plea can be held to be barred by res judicata that plea must have been heard and determined by the court. In Chenniappa Mudatiar v. C.I.T., Madras , a Full Bench of this Court has held, while dealing with a matter which arose under the Income-tax Act, that the dismissal of a case for default can in no sense amount to an adjudication on its merits, quite unlike a case of ex parte decision.
11. In the earlier paragraph 11, the learned Judges of the Bench referred to the Supreme Court case Bhavanaravanaswamivari Temple v. Bhavanaravanacharvulu (1971) 1 M.L.J. 49 (S.C.) and held that as to how far a decision which is rendered in other proceedings will bind the parties depends upon other considerations, one of which will be whether that decision determines substantial rights of parties and the other is whether the parties were given adequate opportunities to establish the rights pleaded by them. The Bench was considering the case of dismissal for default, only on account of that they have taken a view that there is no res judicata in that particular case.
12. In Vishnu Sugar Mills Ltd v. I.S.P. Trading Co. also a Bench of the Calcutta High Court has categorically held that an ex parte decree do constitute res judicata. They have expressed the said principle in the following terms:
The basic principle underlying Section 11 is that once the parties have undergone adjudication of an issue in a suit, that would be final as between the parties irrespective of whether that suit was filed earlier at point of time or later and no court can try that issue any further in another suit even if that suit had been instituted at an earlier point of time. It is the finality of the decision which creates the bar and such finality is not dependent upon the fact as to whether the suit in which the issue had been decided had been filed before or after the suit in which the same issue has arisen: Isup Ali v. Gour Chandra (1923) 37 Cal.L.J. 184 : A.I.R. 1923 Cal. 496. Similarly the learned Judge was equally in the error if he thought that the decree in Money Suit No. 126 of 1972 would not constitute res judicata only because it was an ex parte decree where no issues were framed. It is settled principle now that even ex parte decrees do constitutes res judicata if the issue involved is one which constitute the basis or foundation of the decree.
13. From the aforesaid decisions, it is clear that the ex parte decree in suit O.S.No. 1213 of 1974 namely Ex.A-1 will operate as res judicata. The plaintiff's vendor has already obtained a declaration of her title and injunction against the respondents 1, 2 and 4. The present suit is for the same relief and the issues involved in the present suit are also identical. Therefore, the present suit is definitely hit by the principle of res judicata.
14. Section 11 of Civil Procedure Code operates against both the parties to a suit and not against the defendants alone. The principle of res judicata is an inhibition against the court. It is very specific on this aspect. It is reproduced below:
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 the court.
Therefore, according to his own showing, the plaintiff cannot maintain the present suit against the defendants 1, 2 and 4. The courts below were wrong in deciding the suit against the defendants 1, 2 and 4. In conclusion, there is no necessity for the plaintiff to file the present suit and pray of the same relief which his predecessor in title have obtained from a competent court. The decree in O.S.No. 1213 of 1974 is dated 4.11.1976, the present suit has been filed on 25.6.1979. According to the plaintiff, the decree in O.S.No. 1213 of 1974 dated 4.11.1976 in favour of Thanjammal is binding on the defendants 1, 2 and 4. The present suit has been filed within three years from the date of the earlier decree. The object of Section 11 of Civil Procedure Code is only to prevent the multiplicity of proceedings. Therefore, the remedy available to the plaintiff was to enforce the decree dated 4.11.1976, but unfortunately has chosen to file the present suit,
15. Therefore, I have' to hold that the courts below were wrong in trying the suit against the defendants 1, 2 and 4. But however, the courts below have con-currently found that the plaintiff has not proved his title. After discussing the evidence in detail in paragraph No. 6, the trial court categorically found that the plaintiff has not proved the title of his vendor and as such he has not proved his title to the suit property. Similarly, after considering the documentary evidence and the oral evidence, the lower appellate court has also found that Thanjammal has no right to convey the property to the plaintiff. The finding is based on the evidence adduced in this case, since they are concurrent, I am not in a position to take a different view.
16. Therefore, as regards the third defendant, the plaintiff cannot claim any title in respect of the suit properties. When we come to the possession also the courts below have concurrently found that the plaintiff is not in possession. The trial court has stated that it was proved that P.W.2 namely, Thanjammal, the vendor of the plaintiff was not in the village. The attestor of Ex.A-2 has admitted in the cross-examination that Thanjammal did not give possession of the suit property to the plaintiff. According to P.W.2, she came directly from Nedungampoondi to Sathiyamangalam for registration of the sale deed Ex.A-2 and after registration, she left to Nedungampoondi. P.W.4 was also not in a position to say whether Mottaiya Rounder, the husband of Thanjammal really enjoyed the suit property or not. When we consider Exs.B-3 to B-20, it may be easily concluded that Thanjammal was not in possession and she could not have handed over possession to the plaintiff. The trial court as well as the lower appellate court have concurrently found that the possession of the property are with the defendants only.
17. In the aforesaid circumstances, the appellant cannot be given a decree for declaration of title and injunction as against the respondents 1, 2 and 4, since he has already got the aforesaid reliefs in the earlier suit O.S.No. 1213 of 1974 under Ex.A-1. As regards the third defendant also, in view of the findings referred to above, no relief can be granted. Therefore, the second appeal is dismissed. The dismissal, however, cannot be considered as confirming the judgment and decree of the courts below as regards the respondents 1, 2 and 4, but because of the decree obtained in the earlier suit. No costs.