Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
2025 INSC 825
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 7743 OF 2025
ARISING OUT OF SLP (C) No. 18230 OF 2025
DIARY No. 11882 OF 2021
PANDURANGAN ...APPELLANT(S)
VERSUS
T. JAYARAMA CHETTIAR & ANR. …RESPONDENT(S)
J U D G M E N T
PAMIDIGHANTAM SRI NARASIMHA, J.
1. Delay Condoned.
2. Leave granted.
3. This appeal by the plaintiff arises out of the judgment of the
1
High Court of Madras dismissing the Civil Revision Petition
against the order passed by the District Munsif cum Judicial
2
Magistrate, Portonovo allowing Defendant No. 1’s objection to the
3
plaint under Order VII Rule 11 of the Civil Procedure Code on the
ground of res judicata. For the reasons to follow, we have allowed
Signature Not Verified
Digitally signed by
KAPIL TANDON
Date: 2025.07.14
15:52:33 IST
Reason:
1
Judgment and order dated 20.03.2019 in CRP(PD) No. 1454/2014.
2
Dated 27.01.2014 in I.A. No. 12 of 2010 in O.S. No. 60 of 2009.
3
Hereinafter “CPC”
1
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
4
a co-owner filed a suit for partition against Ms. Jayam Ammal and
5
others and also secured an ex parte decree 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,
6
the appellant instituted the present suit 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
4
O.S. No. 298 of 1996
5
Dated 29.07.1997 in O.S. No. 298/1996 passed by the Sub-Court, Cuddalore.
6
O.S. No. 60 of 2009
2
7
Application 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
7
I.A. No. 12 of 2010 in O.S. No. 60 of 2009
3
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 will contest the suit and protest the interest of
the purchaser. Plaintiff was kept in the dark about the pendency
of the suit. At the time of purchase,he was not put on notice. If it
has been done, he would not have ventured into the sale.
Plaintiff's vendors father did not mention about the pendency of
the suit at the time of sale. Plaintiff honestly believed that the
property is free of any encumbrance and believed so he
purchased the property.
8. Now plaintiff finds that the suit ended in an ex parte decree.
The property was sold by Jayam Ammal on 13.10.1991 to
Hussain Babu. At that time no suit was pending. Suit was laid
much later in 1993 and Jayam Ammal died immediately after
suit. Second defendant her daughter allowed an ex parte decree
to be passed. Hussain Babu the purchaser from Jayam Ammal
believed when second defendant promised that she will take
care of the defence. Plaintiff has not been in the picture. As stated
above everything was suppressed, plaintiff submits that the ex
parte decree is collusive and after the ex parte decree a show of
resistance was made by second defendant. It is quite apparent
that the decree passed ex parte is a collusive one and so
provisions of section 52 of the Transfer of property Act cannot be
attracted.
9. Plaintiff came to know of all this when his vendor's
representative told him a week ago that an advocate-
commissioner is going to inspect the property. So, plaintiffs are
filing the suit for declaration that the preliminary decree passed
in O.S.No.298 of 1996 on the file of the subordinate judge,
Cuddalore is not binding on the plaintiff.
10. Plaintiff now finds that the 1st defendant has played a
fraud on court in filing the suit in the sub court Cuddalore to suit
his convenience when the Subordinate Judge's Court Cuddalore
has no territorial jurisdiction to entertain the plaint. There are six
items in the said suit. The plaint in O.S. No.298 of 1996 reasons
that item 4 was allotted to his father in the partition, items 2,3,
and 5 were purchased by his father in the name of Jayam Ammal
item 6 is a saw will. Items 2 to 6 are situated in Parangipettai
village. So, the suit should have been instituted in the sub court
Chidambaram. But to suit his convenience a property desiring
one cent item situate in Naduveerapattu is included to invoke the
4
jurisdiction of the sub court Cuddalore. This property does not
belong to Ist defendant's father. This is a clear case of fraud. So
the decree passed in O.S. No.298/96 by a court has no territorial
jurisdiction is wholly invalid and 1st defendant has not derived
any right to the property under a decree which is void.
11. The suit property as stated above belonged to Jayam Ammal
st
by purchase and the 1 defendant has no claim over the same.
12. The preliminary decree in O.S. No. 298/96 on the file of the
subordinate judge, cuddalore is not binding on the plaintiff as it
is a collusive decree.”
8
8. In Srihari Hanumandas Totala v. Hemant Vithal Kamat & Ors ,
this court held that the adjudication of the plea of res judicata is
beyond the scope of Order VII, Rule 11 CPC, the court held:
“25. On a perusal of the above authorities, the guiding principles
for deciding an application under Order 7 Rule 11(d) can be
summarised as follows:
25.1. To reject a plaint on the ground that the suit is barred by
any law, only the averments in the plaint will have to be referred
to.
25.2. The defence made by the defendant in the suit must not be
considered while deciding the merits of the application.
25.3. To determine whether a suit is barred by res judicata, it is
necessary that (i) the "previous suit" is decided, (ii) the issues in
the subsequent suit were directly and substantially in issue in
the former suit; iii) the former suit was between the same parties
or parties through whom they claim, litigating under the same
title; and (iv) that these issues were adjudicated and finally
decided by a court competent to try the subsequent suit.
25.4. Since an adjudication of the plea of res judicata requires
consideration of the pleadings, issues, and decision in the
"previous suit", such a plea will be beyond the scope of Order 7
Rule 11(d), where only the statements in the plaint will have to
be perused."
(emphasis supplied)
8
(2021) 9 SCC 99
5
9. Issue relating to whether the ex parte decree is obtained by
collusion, or whether the defendant No. 1, as alleged, has played
fraud by filing a suit in a court having no jurisdiction or whether
the appellant is a bonafide purchaser or not need to be examined
in detail. This Court has held that such circumstances require an
in-depth examination of the previous decree, and its impact on the
second suit. Res judicata cannot be decided merely on assertions
made in the application seeking rejection of plaint. As held by this
9
Court in V. Rajeshwari v. T.C. Saravanabava , identifying
similarity in causes of action should be a matter for trial where
documents from the first suit are studied and analysed. Res
judicata cannot be a matter of speculation or inference. In Keshav
10
Sood v. Kirti Pradeep Sood , this Court took a strong view against
the plea of res judicata being raised in applications seeking
rejection of plaint and held as follows:
“5. As far as scope of Rule 11 of Order VII of CPC is concerned,
the law is well settled. The Court can look into only the averments
made in the plaint and at the highest, documents produced along
with the plaint. The defence of a defendant and documents relied
upon by him cannot be looked into while deciding such
application.
6. Hence, in our view, the issue of res judicata could not have
been decided on an application under Rule 11 of Order VII of
CPC. The reason is that the adjudication on the issue involves
9
(2004) 1 SCC 551.
10
Civil Appeal No. 5841 of 2023.
6
consideration of the pleadings in the earlier suit, the judgment of
the Trial Court and the judgment of the Appellate Courts.
Therefore, we make it clear that neither the learned Single Judge
nor the Division Bench at this stage could have decided the plea
of res judicata raised by the appellant on merits.”
10. From the order passed by the Trial Court it is apparent that
there is neither consideration nor analysis of the case set up by the
appellant in plaint. Further, the Trial Court questioned the legality
of plaintiff’s action on the ground that, “he did not raise any
objection regarding the decree passed in O.S. No. 298/96. Therefore,
this Court comes to the conclusion that the plea of fraud raised by
st
the 1 respondent is not acceptable one.” With this view of the
matter, the Trial Court rejected the objection of the appellant to the
applicability of Order VII, Rule 11 CPC by holding;
“12. The respondents counsel submitted that such a type of
question cannot be decided as preliminary issue. In support of
his contention. They have filed our Hon'ble court judgment
2009(4) LW 432, and 2007 A.L.W 580, 2000(3) MLJ
342,2002(1)LW 398. But those are dealing with regarding court
fees. But as far as the case on hand is concerned. It is not
regarding court fees. Therefore the above said citations is not
apply to this suit.
For the above said reasons and explanations. The petition is
allowed. No cost.”
11. We are not in agreement with the approach and reasoning
adopted by the Trial Court. The appellant’s revision under Article
7
227 was similarly dismissed by the High Court holding that the
decision of the Trial Court does not warrant interference.
12. While we clarify that we have not expressed any opinion on
the question as to whether the decree in O.S. No. 298/96
ex parte
dated 29.07.1997 would or would not operate as res judicata
barring the present suit, we hold that enquiry into this question
could not have been decided under Order VII, Rule 11 CPC,
particularly in the context of the specific averments made by the
appellant in the plaint about the ex parte decree, the circumstances
surrounding the said transaction and the prayer in the suit for
declaration and the consequential relief.
13. For the reasons as indicated hereinabove, we allow the
appeal, set aside the order passed by the High Court in CRP (PD)
No. 1454 of 2014 dated 20.03.2019 and restore the suit O.S. No.
60 of 2009 before the District Munsif cum Judicial Magistrate
Portonovo to its original number. In view of the fact that the suit is
of the year 2009, there shall be a direction for expeditious disposal
of the suit.
14. While concluding, we clarify that we have not expressed any
opinion on the merits of the case and all the grounds raised by the
8
defendants, including those relating to res judicata are kept open
for final determination.
15. With these observations, this appeal stands allowed. The
parties shall bear their own costs.
………………………………....J.
[PAMIDIGHANTAM SRI NARASIMHA]
………………………………....J.
[JOYMALYA BAGCHI]
NEW DELHI;
JULY 14, 2025
9
IN THE SUPREME COURT OF INDIA
2025 INSC 825
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 7743 OF 2025
ARISING OUT OF SLP (C) No. 18230 OF 2025
DIARY No. 11882 OF 2021
PANDURANGAN ...APPELLANT(S)
VERSUS
T. JAYARAMA CHETTIAR & ANR. …RESPONDENT(S)
J U D G M E N T
PAMIDIGHANTAM SRI NARASIMHA, J.
1. Delay Condoned.
2. Leave granted.
3. This appeal by the plaintiff arises out of the judgment of the
1
High Court of Madras dismissing the Civil Revision Petition
against the order passed by the District Munsif cum Judicial
2
Magistrate, Portonovo allowing Defendant No. 1’s objection to the
3
plaint under Order VII Rule 11 of the Civil Procedure Code on the
ground of res judicata. For the reasons to follow, we have allowed
Signature Not Verified
Digitally signed by
KAPIL TANDON
Date: 2025.07.14
15:52:33 IST
Reason:
1
Judgment and order dated 20.03.2019 in CRP(PD) No. 1454/2014.
2
Dated 27.01.2014 in I.A. No. 12 of 2010 in O.S. No. 60 of 2009.
3
Hereinafter “CPC”
1
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
4
a co-owner filed a suit for partition against Ms. Jayam Ammal and
5
others and also secured an ex parte decree 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,
6
the appellant instituted the present suit 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
4
O.S. No. 298 of 1996
5
Dated 29.07.1997 in O.S. No. 298/1996 passed by the Sub-Court, Cuddalore.
6
O.S. No. 60 of 2009
2
7
Application 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
7
I.A. No. 12 of 2010 in O.S. No. 60 of 2009
3
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 will contest the suit and protest the interest of
the purchaser. Plaintiff was kept in the dark about the pendency
of the suit. At the time of purchase,he was not put on notice. If it
has been done, he would not have ventured into the sale.
Plaintiff's vendors father did not mention about the pendency of
the suit at the time of sale. Plaintiff honestly believed that the
property is free of any encumbrance and believed so he
purchased the property.
8. Now plaintiff finds that the suit ended in an ex parte decree.
The property was sold by Jayam Ammal on 13.10.1991 to
Hussain Babu. At that time no suit was pending. Suit was laid
much later in 1993 and Jayam Ammal died immediately after
suit. Second defendant her daughter allowed an ex parte decree
to be passed. Hussain Babu the purchaser from Jayam Ammal
believed when second defendant promised that she will take
care of the defence. Plaintiff has not been in the picture. As stated
above everything was suppressed, plaintiff submits that the ex
parte decree is collusive and after the ex parte decree a show of
resistance was made by second defendant. It is quite apparent
that the decree passed ex parte is a collusive one and so
provisions of section 52 of the Transfer of property Act cannot be
attracted.
9. Plaintiff came to know of all this when his vendor's
representative told him a week ago that an advocate-
commissioner is going to inspect the property. So, plaintiffs are
filing the suit for declaration that the preliminary decree passed
in O.S.No.298 of 1996 on the file of the subordinate judge,
Cuddalore is not binding on the plaintiff.
10. Plaintiff now finds that the 1st defendant has played a
fraud on court in filing the suit in the sub court Cuddalore to suit
his convenience when the Subordinate Judge's Court Cuddalore
has no territorial jurisdiction to entertain the plaint. There are six
items in the said suit. The plaint in O.S. No.298 of 1996 reasons
that item 4 was allotted to his father in the partition, items 2,3,
and 5 were purchased by his father in the name of Jayam Ammal
item 6 is a saw will. Items 2 to 6 are situated in Parangipettai
village. So, the suit should have been instituted in the sub court
Chidambaram. But to suit his convenience a property desiring
one cent item situate in Naduveerapattu is included to invoke the
4
jurisdiction of the sub court Cuddalore. This property does not
belong to Ist defendant's father. This is a clear case of fraud. So
the decree passed in O.S. No.298/96 by a court has no territorial
jurisdiction is wholly invalid and 1st defendant has not derived
any right to the property under a decree which is void.
11. The suit property as stated above belonged to Jayam Ammal
st
by purchase and the 1 defendant has no claim over the same.
12. The preliminary decree in O.S. No. 298/96 on the file of the
subordinate judge, cuddalore is not binding on the plaintiff as it
is a collusive decree.”
8
8. In Srihari Hanumandas Totala v. Hemant Vithal Kamat & Ors ,
this court held that the adjudication of the plea of res judicata is
beyond the scope of Order VII, Rule 11 CPC, the court held:
“25. On a perusal of the above authorities, the guiding principles
for deciding an application under Order 7 Rule 11(d) can be
summarised as follows:
25.1. To reject a plaint on the ground that the suit is barred by
any law, only the averments in the plaint will have to be referred
to.
25.2. The defence made by the defendant in the suit must not be
considered while deciding the merits of the application.
25.3. To determine whether a suit is barred by res judicata, it is
necessary that (i) the "previous suit" is decided, (ii) the issues in
the subsequent suit were directly and substantially in issue in
the former suit; iii) the former suit was between the same parties
or parties through whom they claim, litigating under the same
title; and (iv) that these issues were adjudicated and finally
decided by a court competent to try the subsequent suit.
25.4. Since an adjudication of the plea of res judicata requires
consideration of the pleadings, issues, and decision in the
"previous suit", such a plea will be beyond the scope of Order 7
Rule 11(d), where only the statements in the plaint will have to
be perused."
(emphasis supplied)
8
(2021) 9 SCC 99
5
9. Issue relating to whether the ex parte decree is obtained by
collusion, or whether the defendant No. 1, as alleged, has played
fraud by filing a suit in a court having no jurisdiction or whether
the appellant is a bonafide purchaser or not need to be examined
in detail. This Court has held that such circumstances require an
in-depth examination of the previous decree, and its impact on the
second suit. Res judicata cannot be decided merely on assertions
made in the application seeking rejection of plaint. As held by this
9
Court in V. Rajeshwari v. T.C. Saravanabava , identifying
similarity in causes of action should be a matter for trial where
documents from the first suit are studied and analysed. Res
judicata cannot be a matter of speculation or inference. In Keshav
10
Sood v. Kirti Pradeep Sood , this Court took a strong view against
the plea of res judicata being raised in applications seeking
rejection of plaint and held as follows:
“5. As far as scope of Rule 11 of Order VII of CPC is concerned,
the law is well settled. The Court can look into only the averments
made in the plaint and at the highest, documents produced along
with the plaint. The defence of a defendant and documents relied
upon by him cannot be looked into while deciding such
application.
6. Hence, in our view, the issue of res judicata could not have
been decided on an application under Rule 11 of Order VII of
CPC. The reason is that the adjudication on the issue involves
9
(2004) 1 SCC 551.
10
Civil Appeal No. 5841 of 2023.
6
consideration of the pleadings in the earlier suit, the judgment of
the Trial Court and the judgment of the Appellate Courts.
Therefore, we make it clear that neither the learned Single Judge
nor the Division Bench at this stage could have decided the plea
of res judicata raised by the appellant on merits.”
10. From the order passed by the Trial Court it is apparent that
there is neither consideration nor analysis of the case set up by the
appellant in plaint. Further, the Trial Court questioned the legality
of plaintiff’s action on the ground that, “he did not raise any
objection regarding the decree passed in O.S. No. 298/96. Therefore,
this Court comes to the conclusion that the plea of fraud raised by
st
the 1 respondent is not acceptable one.” With this view of the
matter, the Trial Court rejected the objection of the appellant to the
applicability of Order VII, Rule 11 CPC by holding;
“12. The respondents counsel submitted that such a type of
question cannot be decided as preliminary issue. In support of
his contention. They have filed our Hon'ble court judgment
2009(4) LW 432, and 2007 A.L.W 580, 2000(3) MLJ
342,2002(1)LW 398. But those are dealing with regarding court
fees. But as far as the case on hand is concerned. It is not
regarding court fees. Therefore the above said citations is not
apply to this suit.
For the above said reasons and explanations. The petition is
allowed. No cost.”
11. We are not in agreement with the approach and reasoning
adopted by the Trial Court. The appellant’s revision under Article
7
227 was similarly dismissed by the High Court holding that the
decision of the Trial Court does not warrant interference.
12. While we clarify that we have not expressed any opinion on
the question as to whether the decree in O.S. No. 298/96
ex parte
dated 29.07.1997 would or would not operate as res judicata
barring the present suit, we hold that enquiry into this question
could not have been decided under Order VII, Rule 11 CPC,
particularly in the context of the specific averments made by the
appellant in the plaint about the ex parte decree, the circumstances
surrounding the said transaction and the prayer in the suit for
declaration and the consequential relief.
13. For the reasons as indicated hereinabove, we allow the
appeal, set aside the order passed by the High Court in CRP (PD)
No. 1454 of 2014 dated 20.03.2019 and restore the suit O.S. No.
60 of 2009 before the District Munsif cum Judicial Magistrate
Portonovo to its original number. In view of the fact that the suit is
of the year 2009, there shall be a direction for expeditious disposal
of the suit.
14. While concluding, we clarify that we have not expressed any
opinion on the merits of the case and all the grounds raised by the
8
defendants, including those relating to res judicata are kept open
for final determination.
15. With these observations, this appeal stands allowed. The
parties shall bear their own costs.
………………………………....J.
[PAMIDIGHANTAM SRI NARASIMHA]
………………………………....J.
[JOYMALYA BAGCHI]
NEW DELHI;
JULY 14, 2025
9