Exparte decree in former suit will operate as res judicata in subsequent suit

The judgment cited by the learned Counsel for the appellant is not applicable to the facts of the case. From the judgment in O.S.No.170 of 1998, it is seen that the present appellant is the plaintiff. The suit was dismissed for default. However, a counter claim filed by the second defendant/second respondent herein was allowed and hence, the appellant suffered a decree for recovery of possession. The decree for recovery of possession in the previous suit is only on the assumption that the second respondent herein is the lawful owner of the suit property.  *It is well settled now that even an ex-parte decree in the former suit could be taken as final and it would operate an res judicata in the subsequent suit. It is not disputed that the matters directly and substantially in issue in the present suit and in the previous suit are constructively the same.*

13. In such circumstances, it cannot be said that the decree passed in the counter claim preferred by the second defendant herein will not operate as res judicata as against the appellant and the appellant is estopped from disputing the title of the second defendant herein. 

*Madras High Court*

*Sivasubiramaniyampillai : vs Jothimani*

1St on 22 September, 2016

CORAM : *THE HONOURABLE MR. JUSTICE S.S.SUNDAR*

 Citation: *AIR 2017(NOC)429 Mad*