Code of Civil Procedure, 1908 – Or.VII, R.11 – Rejection of plaint – Appellant purchased a disputed property from one HB, who had in turn purchased it from JA – Later, appellant came to know that defendant no.1, claiming to be a co-owner filed a suit for partition against JA and others and also secured an ex parte decree in his favour – Compelled by these circumstances, the appellant instituted the present suit for declaration of title and permanent injunction – Defendant filed an I.A. u/Or.VII, R.11 of CPC contending that the suit is barred by res judicata as the earlier ex parte decree has attained finality – District Munsif cum Judicial Magistrate allowed defendant no.1’s objection – A Civil Revision Petition filed against the said order was dismissed by the High Court – Correctness: Held: The objection of res judicata cannot be taken to bar the suit u/Or.VII, R.11, CPC – 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 – 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 – This Court clarifies that no opinion is expressed on the question as to whether the ex parte decree in O.S. No.298/96 dated 29.07.1997 would or would not operate as res judicata barring the present suit, this Court holds that enquiry into this question could not have been decided u/Or.VII, R.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. [Paras 9, 10, 12]
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Ankit Gyan. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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