Smt. Asha vs Sri Harveer Singh Alias Harveer Parihar

1. Heard Sri Srijan Mehrotra, learned counsel for the petitioner and Sri Jai Raj, leaned counsel appearing for the respondent.

2. Under challenge in the present petition is an order dated 1.8.2019, passed by the Principal Judge, Family Court, Agra rejecting the application No. 14Ka filed by the petitioner under Order 7 Rule 11 read with Section 151 of the Code of Civil Procedure.

3. The said application was filed on the ground that a fresh application for divorce is not maintainable and no cause of action is disclosed. After calling for a response from the other side, by the impugned order dated 1.8.2019, the application was dismissed.

4. It has been fairly conceded by the learned counsel for the petitioner that in view of the judgments of the Supreme Court in Srihari Hanumandas Totala Vs. Hemant Vithal Kamat and others; reported in (2021) 9 SCC 99, the aspect of res judicata would not be a ground for rejection of plaint under Order 7 Rule 11 CPC. However, he has contended that the Principal Judge Family Court, in the impugned order has made observations which has foreclosed the right of the applicant/petitioner to raise the issue at the appropriate stage. It is contended that the observations made in the order dated 1.8.2019 would operate as res judicata regarding any issue that may be framed by the family court with regard to res judicata.

5. Learned counsel for the respondent has opposed the petition.

6. So far as the application under Order 7 Rule 11 CPC is concerned, as noted above, it was filed on the ground that a fresh application for divorce is not maintainable and no cause of action is disclosed. It is evident from perusal of the record of this petition, that initially Matrimonial Case No. 480 of 2005 was filed which came to be dismissed on 6.2.2006 by the Family Court on the ground that the relief of divorce was sought for by the petitioner in an application filed under Section 125 Cr.P.C. For non-prosecution as well as it not being maintainable, the case was dismissed. Thereafter, another case being Matrimonial Case No. 261 of 2006 was filed by the respondent under Section 13 of the Hindu Marriage Act for divorce. By a judgment and order dated 15.6.2010, the Case No. 261 of 2006 was dismissed. Three issues were framed in the suit as under:-

(i) Whether the defendant (petitioner herein) had behaved with the cruelty with the plaintiff and if yes, its effect?

(ii) Whether the case is barred under the provisions of Order 9 Rule 9 CPC and if yes, its affect? and

(iii) Whether the plaintiff is entitled for a relief of divorce?

7. All the issues were decided against the plaintiff-respondent.

8. An appeal was filed before this Court against the judgment and decree dated 15.6.2010 passed by the Principal Judge, Family Court, Agra by the respondent which was dismissed by a judgment and order dated 24.11.2016. Against the judgment and order dated 24.11.2016, the respondent preferred a Special Leave Petition before the Supreme Court which was dismissed by an order dated 10.4.2017. Thereafter, the aforesaid Matrimonial Case No. 218 of 2017 has been filed under Section 13 of the Act.

9. The judgment relied upon by the learned counsel for the petitioner in the case of Srihari Hanumandas Totala has referred to several authorities while considering whether an application under Order 7 Rule 11 CPC could be decided by the court on the ground of res judicata. The Supreme Court observed as follows:-

"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."

10. Under the circumstances, the concession made by the learned counsel for the petitioner is fair and as per the law. Under the circumstances, rejection of the application under Order 7 Rule 11 by the Family Court is correct and calls for no interference. However, another contention of the learned counsel for the petitioner is that the observations made by the Principal Judge, Family Court, Agra while rejecting the application filed under Order 7 Rule 11 CPC would preclude rights of the petitioner to agitate issue of res judicata at a subsequent stage in the matrimonial case.

11. The Family Court has observed that an amendment was made by the plaintiff in paragraph 38 of the plaint that the plaintiff and his parents were accused of serious offences and were sent to jail and they were in jail for several days and have suffered. The cases are still pending in various courts of law. As such, in the previous case No. 261 of 2006, the cause shown was that the respondent-petitioner and her family members had lodged false cases against the plaintiff and his family members and had misbehaved with them, whereas in the present case, the plaintiff showed cause that the respondent-petitioner behaved cruelly with the plaintiff and without any rational reason had deserted her. The Family Court has, therefore, observed that accordingly, it is clear that in the previous case, the plaintiff had made cruelty as cause of filing the suit whereas in the present case, alongwith cruelty a ground of desertion had also been raised. It was also stated by the Family Court that in the present case, by amendment, cause of action has been clarified and, therefore, in the present case, the different cause of action has been shown from that in the previous suit.

12. Given the mandate of the Supreme Court as mentioned above, consideration on the aspect whether the matter directly or substantially in issue in the present case has been directly and substantially in issue in former case No. 216 of 2006 between the same party would be a matter to be decided at an appropriate stage after issues are framed by the Court. During the consideration of the application under Order 7 Rule 11(d) CPC, an adjudication of plea of res judicata is beyond the scope of order 7 Rule 11(d) CPC, where the only statement in the plaint will have to be perused. As such, the observations made by the Principal Judge, Family Court that the matter in the present suit is not directly or substantially in issue in previous case No. 261 of 2006 cannot be said to be in terms of the judgment of the Supreme Court in Srihari Hanumandas Totala.

13. Therefore, in case any issue is framed by the Family Court on res judicata, the same would be decided independently and without reference to the observations made by the Family Court in its order dated 1.8.2019 which is impugned in the present petition.

14. This petition is, accordingly, disposed of in terms of observations made above.

Order Date :- 22.8.2023

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(Jayant Banerji, J)