L. Narasimha Reddy, J.
1. The plaintiff in O.S. No. 1237 of 1987 in the Court of II Additional District Munsif, Khammam, filed this second appeal. The 1st respondent (defendant No. 2 in the suit) is the brother of the appellant, and the 2nd respondent (defendant No. 1 in the suit) is a third party.
2. The appellant filed the suit, initially against the 2nd respondent alone, for the relief of perpetual injunction. He pleaded that the suit schedule property, a house bearing No. 2-74 of Lachagudem Village of Khammam District, is owned and possessed by him, and that the 2nd respondent started interfering with his possession without any basis. The 2nd respondent filed a written-statement admitting the possession of the appellant, and stating that he has no objection for the suit being decreed.
3. Subsequently, the 1st respondent got himself impleaded. He stated that about 22 years prior to the filing of the suit, himself and his brother migrated to a village, by name, Manikyaram, from Lachagudem and acquired properties and houses there. According to him, he came back to his native village of Lachagudem not being able to continue at Manikyaram, and in the process, he left his house at Manikyaram to his brother, the appellant, in exchange for the house of the appellant at Lachagudem. It was his case that the appellant permanently settled at Manikyaram, but with oblique motive and evil intention, made claim against the suit schedule property, in collusion with the 2nd respondent. He made a reference to O.S. No. 215 of 1986, filed by him, against the appellant, and a decree obtained therein, for perpetual injunction, in respect of the same property.
4. The trial Court decreed O.S. No. 1237 of 1987, through judgment dated 31-1-1991. The 1st respondent filed A.S. No. 7 of 1991 in the Court of Additional District Judge, Khammam. The appeal was allowed on 4-11-1996, and the decree passed by the trial Court was set aside. Hence, this second appeal.
5. Sri V.S.R. Anjaneyulu, learned Counsel for the appellant submits that the lower Appellate Court reversed the judgment and decree of the trial Court, mainly on the ground that the judgment and decree in O.S. No. 215 of 2006 operate as res judicata in the present suit. He contends that though the decree was between the same parties and in relation to the same property, it was passed ex parte, and that the principle of res judicata does not apply in such cases. He further submits that neither any evidence was adduced, nor any finding was recorded in O.S. No. 215 of 1986, and at any rate, being a decree for perpetual injunction, it cannot constitute the basis for dismissal of a subsequent suit.
6. Sri M. Raja Malla Reddy, learned Counsel for the respondents, on the other hand, submits that an ex parte decree is equally binding on the parties thereto, and the prohibition contained in Section 11 C.P.C., applies to such decrees also. He further contends that the appellant cannot take advantage of his own default in an earlier suit.
7. The appellant filed the suit against the 2nd respondent alone, who sailed with him. The 1st respondent got impleaded in the suit and contested the matter by raising several grounds. He took the plea of res judicata. The trial Court framed two issues: one relating to the application of principles of res judicata, and the other about the entitlement of the appellant, for the decree of perpetual injunction.
8. On behalf of the appellant PWs. 1 and 2 were examined and Exs. A-1 to A-4 were marked. The 1st respondent deposed as DW-1, and he filed Exs.B-1 to B-8, which included the certified copies of judgment and decree in O.S. No. 215 of 1986. The trial Court answered the first issue against the respondents, on the ground that the decree in O.S. No. 215 of 1986 was ex parte in nature. It was also observed that the subject-matter of both the suits is not one and the same. On the basis of the entries made in the Gram Panchayat records and the tax receipts, marked as Exs.A-2 and A-3, the trial Court held that the appellant is in possession of the property.
9. The lower Appellate Court had undertaken extensive discussion on the question of res judicata and took the view that the present case attracts the said principle. The finding of possession was also disturbed.
10. The contentions advanced on behalf of the appellant are twofold, viz., that the judgment in O.S. No. 215 of 1986 does not operate as res judicata, and that the appellant is in possession of the suit schedule property, and thereby entitled for the relief of injunction.
11. The observation of the trial Court, on the principle of res judicata that it does not apply to cases where the decrees are passed ex parte; is untenable. The Court appears to have mistaken ex parte decrees, for those in the matters dismissed in limini. A decree, arising out of dismissal of a suit in limini without the application of mind of the Court, does-not operate as res judicata. An ex parte decree, however stands on a different footing. In such matters, the Court very much applies its mind and undertakes adjudication. The necessity for undertaking a detailed discussion is obviated, in cases where the parties, who are supposed to contest the matter; remain ex parte. A defendant in a suit cannot be extended the luxury to remain ex parte, and at a subsequent stage, to plead that ex parte decree does not bind him. An ex parte decree is as enforceable as a decree, passed on merits. Its enforceability or operation in law, does not suffer any dent, on the sole ground that the defendant did not favour the Court with his appearance. If such approach is adopted, the easiest course for a defendant to avoid any adjudication by a Court, or to face the results thereof would be, to remain ex parte.
12. It is not in dispute that the decree in O.S. No. 215 of 1986 is between the same parties, and in respect of the same properties. It has given rise to filing of LA. No. 1612 of 1987 for police aid. The lower Appellate Court took note of these aspects and reversed the findings of the trial Court, in this regard.
13. Coming to the question of possession, it has come on record that the appellant is a regular resident of Manikyaram Village, and that he left Lachagudem, decades prior to the filing of the suit. He attempted to prove his possession, on the basis of the entry in the Gram Panchayat record, and payment of tax receipts by examining PW-2. According to the appellant, PW-2 is a representative of the Gram Panchayat. It ultimately emerged that the witness is an Attender of the Gram Panchayat. No other evidence existed, to prove the possession of the appellant.
14. This Court is not inclined to interfere with the judgment and decree passed by the lower Appellate Court. The second appeal is accordingly dismissed./There shall be no order as to costs.
