Andhra Pradesh High Court - Amravati
Gundabolu Jaganmohan Arun Kumar Bhadur vs Gundabolu Adi Lakshmi on 2 November, 2022
HONOURABLE SRI JUSTICE SUBBA REDDY SATTI
CIVIL REVISION PETITION No.1410 of 2022
Gundabolu Jaganmohan Arun Kumar Bhadur,
S/o.Koteswara Rao, Railway Employee, R/o.D.No.7-237,
Gorantla, Guntur Mandal and District, A.P.
... Petitioner
Versus
Gundabolu Adi Lakshmi, W/o.Jagan Mohan Arun Kumar
Bhadur, D/o.late Venkataiah, R/o.D.No.8-10-73, 1st line
Nehru Nagar, Guntur, Guntur District.
... Respondent
Counsel for the petitioner : Sri Katta Haranadha Raju
Counsel for respondent : Sri M.R.S.Srinivas
ORDER:
Petitioner/husband in FCOP filed the above revision against the order dated 24.03.2022 in I.A.No.210 of 2021 in FCOP No.256 of 2020 on the file of the Judge, Family Court- cum-XII Additional District Judge, Guntur.
2. Petitioner/husband filed FCOP No.256 of 2020 against the respondent/wife seeking divorce under Section 13(1)(ia)(ib) of Hindu Marriage Act, 1955 (for short 'the Act') read with Section 7 of Family Courts Act, 1984. The same is being contested by the respondent herein. Pending FCOP, I.A.No.210 of 2021 under Sections 11 and 12 read with Section 151 read 2 with Section 14(1) of CPC to dismiss the FCOP 256 of 2020 on the ground of res judicata.
3. In the affidavit filed in support of the petition, it was, inter alia, contended that husband filed HMOP No.12 of 2010 under Section 13 of the Act and wife filed HMOP No.110 of 2009 under Section 9 of the Act for restitution of conjugal rights. By common order dated 01.06.2011, HMOP No.12 of 2010 filed by husband was dismissed and HMOP No.110 of 2009 filed by wife was allowed. Husband filed revision petition CRP No. 148 of 2011 against the dismissal order in HMOP 12 of 2010 and the same was withdrawn on 02.01.2012. Again, husband filed HMOP No.181 of 2012 under Section 13 of the Act and the same was dismissed on merits on 17.06.2015. After dismissal of the said HMOP, husband again filed the present FCOP No.256 of 2020 under Sections 13(1)(ia)(ib) of the Act under Section 7 of Family Courts Act. The order passed in FCOP No.12 of 2010 and 181 of 2012 would operates res judicata. Husband suppressed factum of filing of earlier OP and prayed to dismiss the FCOP No.256 of 2020.
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4. Counter was filed by husband and it was inter alia contended that the act of wife deserting her husband is continuous cause of action and concept of res judicata would not apply and prayed to dismiss the petition.
5. Trial Court by order dated 24.03.2022 allowed the I.A. holding that the order in FCOP No.181 of 2012 will operates res-judicata and hence, dismissed the petition. Against the said order, present revision is filed.
6. Heard Sri Katta Haranadha Raju, learned counsel for the petitioner and Sri M.R.S.Srinivas, learned counsel for the respondent.
7. Learned counsel for the revision petitioner would contend that the principle of res judicata will not apply to the matrimonial matters. He would also contend that desertion of one of the spouses is continuation of cause of action and hence, Section 11 of CPC would not apply. On the other hand, learned counsel for the respondent supported the order of the trial Court.
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8. While considering the principles of res judicata under Section 11 of CPC, the Hon'ble Apex Court in V.Rajeshwari v. T.C.Saravanabava1, observed as under:
"11. The rule of res judicata does not strike at the root of the jurisdiction of the court trying the subsequent suit. It is a rule of estoppel by judgment based on the public policy that there should be a finality to litigation and no one should be vexed twice for the same cause.
12. The plea of res judicata is founded on proof of certain facts and then by applying the law to the facts so found. It is, therefore, necessary that the foundation for the plea must be laid in the pleadings and then an issue must be framed and tried. A plea not properly raised in the pleadings or in issues at the stage of the trial, would not be permitted to be raised for the first time at the stage of appeal [see (Raja) Jagadish Chandra Deo Dhabal Deb v. Gour Hari Mahato [AIR 1936 PC 258 : 1936 All LR 786] , Medapati Surayya v. Tondapu Bala Gangadhara Ramakrishna Reddi [AIR 1948 PC 3 : (1947) 2 MLJ 511] and Katragadda China Anjaneyulu v. Kattaragadda China Ramayya [AIR 1965 AP 177 : (1965) 1 An LT 149 (FB)] ]. The view taken by the Privy Council was cited with approval before this Court in State of Punjab v. Bua Das Kaushal [(1970) 3 SCC 656] . However, an exception was carved out by this Court and the plea was permitted to be raised, though not taken in the pleadings nor covered by any issue, because the necessary facts were present to the mind of the parties and were gone into by the trial court. The opposite party had ample opportunity of leading the evidence in rebuttal of the 1 (2004) 1 SCC 551 5 plea. The Court concluded that the point of res judicata had throughout been in consideration and discussion and so the want of pleadings or plea of waiver of res judicata cannot be allowed to be urged."
9. In the light of expressions of Hon'ble Apex Court, and a perusal of the order impugned in the revision, it would discern that no exhibits were marked during the course of enquiry in I.A.No.210 of 2021. It is the contention of learned counsel for the respondent that since the husband did not deny filing of OP, it being an admitted fact, trial Court considered the same. However, in view of the principle laid down by the Hon'ble Apex Court without looking into (exhibiting) the pleadings in earlier suit, the principles of Res Judicata cannot be decided in the later suit.
10. As pointed supra, the pleadings in the earlier proceedings were not filed, except the copy of the order. Copy of the order doesn't reflect the pleas of respective parties in the earlier proceedings. Without looking into the pleadings in earlier proceedings, it is unsafe to non-suit a person on the ground of res judicata. In view of the same, the order of the trial Court allowing the interlocutory application holding that the decision 6 in FCOP No.181 of 2012 will operate as res judicata, is unsustainable.
11. The order impugned is set aside. The matter is remanded to the Judge, Family Court, leaving it open to the respondent/ wife to lead evidence in accordance with law by placing relevant material papers as per the expression of the Hon'ble Apex Court. Lower Court also shall permit the parties to file necessary documents and to lead any evidence if necessary. The trial Court shall deal with the petition afresh, as expeditiously as possible within a period of six (8) weeks from the date of receipt of a copy of this order.
12. With the above direction, the Civil Revision Petition is disposed of. No order as to costs.
As a sequel, all the pending miscellaneous applications shall stand closed.
_________________________ SUBBA REDDY SATTI, J Date : 02.11.2022 KA 7 8 165 HONOURABLE SRI JUSTICE SUBBA REDDY SATTI CIVIL REVISION PETITION No.1410 of 2022 Date : 02.11.2022 KA