Res Judicata Requires Full Trial If Fraud And Collusion Are Alleged | Supreme Court Says Objection Cannot Be Decided At Threshold Under Order VII Rule 11
Kiran Raj
The Supreme Court of India Division Bench of Justice Pamidighantam Sri Narasimha and Justice Joymalya Bagchi set aside the High Court’s dismissal of a civil revision petition and restored a declaratory suit previously rejected on the ground of res judicata. The Bench directed the Trial Court to proceed with the suit, holding that the question of res judicata cannot be summarily decided at the threshold under Order VII Rule 11 of the Civil Procedure Code.
The apex court allowed the appeal and reinstated the plaintiff’s suit for declaration and permanent injunction that had been dismissed by the District Munsif cum Judicial Magistrate, Portonovo. It also directed expeditious disposal of the suit given the protracted timeline of litigation that originated in 2009. The Court clarified that while it expressed no opinion on the merits of the res judicata plea, the plaint could not be rejected solely on this basis at the preliminary stage. All grounds raised by the defendants were kept open for adjudication during trial.
The appellant, plaintiff in the original suit, purchased the disputed property in 1998 from one Mr. Hussain Babu, who had acquired the same from Ms. Jayam Ammal in 1991. The plaintiff claimed to have been in peaceful possession of the property when he was informed that an advocate-commissioner was scheduled to inspect the land. Upon inquiry, it was revealed that the first defendant, claiming co-ownership, had earlier instituted a suit for partition against Ms. Jayam Ammal and others. This earlier suit, filed in 1996, culminated in an ex parte decree passed on 29 July 1997 by the Sub-Court, Cuddalore.
The plaintiff contended that he was not informed about the pendency of this earlier suit at the time of purchasing the property. According to the plaint, Ms. Jayam Ammal passed away soon after the institution of the previous suit, and her daughter Selvi, the second defendant therein, did not contest the proceedings, allowing them to go ex parte. Hussain Babu, the third defendant in the earlier suit and the plaintiff’s vendor, was overseas at the time and allegedly relied on the second defendant to protect the purchasers’ interests.
The plaintiff further alleged that the decree in the earlier suit was collusively obtained and was not binding on him. He instituted a fresh suit in 2009 seeking a declaration that the ex parte decree was not binding and prayed for a permanent injunction. During pendency of this suit, the first defendant filed an interlocutory application under Order VII Rule 11 CPC, contending that the suit was barred by res judicata, as the earlier ex parte decree had attained finality.
The Trial Court allowed the defendant’s application and rejected the plaint. It reasoned that since the plaintiff derived title from Hussain Babu, who was a party to the earlier suit, the plaintiff was effectively bound by that decision. Furthermore, the Trial Court held that the plaintiff’s allegations of fraud and lack of jurisdiction in the earlier suit were not credible, particularly in light of the plaintiff’s alleged inaction.
Aggrieved by this decision, the plaintiff filed a civil revision petition before the High Court of Madras. The High Court, by judgment dated 20 March 2019, dismissed the revision petition. It upheld the Trial Court’s conclusion that the plaint was liable to be rejected under Order VII Rule 11 CPC on the basis of res judicata.
The plaintiff then approached the Supreme Court by way of a Special Leave Petition. Leave was granted, and the appeal was registered.
The Supreme Court observed that there was no dispute about the appellant not being a party to the earlier suit. The Court noted: “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.”
The Court acknowledged that the appellant specifically challenged the ex parte decree on the grounds of fraud, collusion, and jurisdictional defects. These contentions were part of the substantive prayer for declaration in the suit.
Referring to the decision in Srihari Hanumandas Totala v. Hemant Vithal Kamat & Ors., the Court held: “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.”
The Court clarified that: “The defence made by the defendant in the suit must not be considered while deciding the merits of the application.”
Further elaborating on the limits of Order VII Rule 11 CPC, the Bench stated: “Res judicata cannot be decided merely on assertions made in the application seeking rejection of plaint.”
The Court noted that the issue of res judicata involves examining the pleadings, issues, and decision in the earlier suit. Such an inquiry exceeds the limited scope permissible under Order VII Rule 11.
In this context, the Court relied upon Keshav Sood v. Kirti Pradeep Sood, stating: “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 consideration of the pleadings in the earlier suit, the judgment of the Trial Court and the judgment of the Appellate Courts.”
The Court found that the Trial Court did not adequately consider or analyse the plaint's allegations: “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.”
The Court also recorded its disagreement with the Trial Court’s reasoning, particularly with regard to the plaintiff’s failure to raise objections to the earlier decree: “We are not in agreement with the approach and reasoning adopted by the Trial Court.”
With respect to the High Court’s judgement, the Supreme Court noted: “The appellant’s revision under Article 227 was similarly dismissed by the High Court holding that the decision of the Trial Court does not warrant interference.”
Clarifying the scope of its decision, the Bench concluded: “We have not expressed any opinion 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.”
The Court set aside the judgments of both the Trial Court and the High Court. It restored the suit to its original position for trial and directed that it be disposed of without undue delay.
“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.”
The Court further directed: “In view of the fact that the suit is of the year 2009, there shall be a direction for expeditious disposal of the suit.”
The Bench made it explicitly clear that no findings were being made on the substantive question of res judicata: “While we clarify that we have not expressed any opinion on the merits of the case and all the grounds raised by the defendants, including those relating to res judicata are kept open for final determination.”
“With these observations, this appeal stands allowed. The parties shall bear their own costs.”
Advocates Representing the Parties:
For Petitioner(s): Dr. G. Sivabalamurugan, AOR; Mr. Selvaraj Mahendran, Adv.; Mr. C. Adhikesavan, Adv.; Mr. Harikrishnan P.V., Adv.; Mr. C. Kavin Ananth, Adv.
For Respondent(s): Mr. V. Prabhakar, Sr. Adv.; Mr. S. Rajappa, AOR; Mr. R. Gowrishankar, Adv.; Ms. G. Dhivyasri, Adv.; Ms. Jyoti Parashar, Adv.; Mr. Nanchil J. Deekshith, Adv
Case Title: Pandurangan v. T. Jayarama Chettiar & Anr.
Neutral Citation: 2025 INSC 825
Case Number: Civil Appeal No. 7743 of 2025
Bench: Justice Pamidighantam Sri Narasimha, Justice Joymalya Bagchi
