Calcutta High Court (Appellete Side)
An Application Under Article 227 Of The ... vs Unknown on 23 November, 2017
Author: Amitabha Chatterjee
Bench: Amitabha Chatterjee
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
Present: The Hon'ble Justice Amitabha Chatterjee
C.O. No. 3753 of 2016
In the Matter of
An application under Article 227 of the Constitution of India
And
In the Matter of:
Sri Kanak Basu
........ Petitioner / Husband
-Vs-
Smt. Nandini Basu (nee Aich)
........ Opposite Party / Wife
For the Appellant : Mr. Chandra Bhanu Sinha
Mr. Ranjit Kr. Shaw
Mr. R.K. Shaw
Ms. Runa Palit
For the Respondent : Mr. Kaustav Ch. Das
Heard On: 07.11.2017 Judgment On: 23.11.2017 Amitabha Chatterjee, J. :- Challenge in the present revisional application is to the order No.29 dated 09.05.2016 passed by the Learned Additional District Judge, 3rd Court at Alipore in Misc. case No.37 of 2015 arising out of Mat Suit No.64 of 2012 against an application under section 27 of the Special Marriage Act, praying for setting aside the order No.29 dated 09.05.2016 passed by the Learned Additional District Judge, 3rd Court at Alipore.
According to the case of the petitioner he had been living separately on and from 26.12.2016 but all along during the period of separation the petitioner in his own volition used to pay a sum of Rs.25 thousand as her maintenance, since there was no chance of re- unions of the conjugal life between the petitioner / husband and opposite party / wife. There after the petitioner filed an application under section 27 of the Special Marriage Act, 1954 for a decree of divorce for dissolution of the marriage which was held on 29th day of June, 1982 and the said suit was registered as Mat Suit No.64/2012.
On the contrary the opposite party / wife filed an application under Section 9 of the Hindu Marriage Act, 1955 before the Learned 3rd Court of the Additional District Judge at Alipore and it was numbered as Mat Suit No.81/2012 in the Court of the Learned Additional District Judge, 3rd Court, Alipore. The opposite party / wife also filed an application under section 24 of the Hindu Marriage Act, 1955. The petitioner contested the suit by filing the written statement as well as by filing the written objection in the Misc. case No.41/2012 (arising out of Mat suit No.81/2012). The Learned Trial Judge, upon the contested hearing of the application of the wife under section 24 of the Hindu Marriage Act, 1955 fixed up the maintenance of the wife to the tune of Rs.30 thousand per month along with the direction upon the husband to pay Rs.20 thousand towards litigation cost on 24th January, 2014.
According to the order dated 24th January, 2014 the petitioner / husband paid the maintenance at the rate of 30 thousand per month up to the date of retirement of the petitioner's service.
But after the retirement the petitioner/husband has no income from his service as his service was purely on the contractual basis and there was no fixed salary.
It is also the case of the petitioner that he was hospitalized at Cochin due to his massive heart attack and there after he was unable to resume his job due to his ill health and ultimately was superannuated on 02.05.2015.
Subsequently, the petitioner filed an application for modification of the maintenance amount from Rs. 30 thousand to Rs.7 thousand per month for the wife's maintenance out of his total interest income which has been estimated from the income tax statement which has been filed in the Hon'ble Court but the petitioner's application for modification of the maintenance amount was turned down by the Learned court below vide its order No.20 dated 17.06.2015. There-after the petitioner once again filed an application before the said Court and the Learned court below vide its order No.29 dated 09.05.2016 rejected the aforesaid application too having been aggrieved by and dissatisfied with the aforesaid order No.29 dated 09.05.2016 passed by the Learned Additional District Judge, 3rd Court arising out of mat suit no.64 of 2012 the petitioner moved this revisional application before this Court.
The Learned counsel for the petitioner submitted that as per the order of the Learned Court he had been paying the maintenance amount to the tune of Rs.30 thousand to the wife / opposite party but after his superannuation he could not pay the same as he has no regular pension. It is submitted by the Learned counsel for the petitioner that the maintenance allowance which has been calculated on the basis of his service and pre-retirement income cannot be continued on and from 07.03.2014 due to his retirement from his service and due to his superannuation this petitioner was unable to pay a sum of Rs.30 thousand as alimony. He had not to undertake medical treatment at Kolkata for his heart problem and he had been operated by spending a sum of Rs.3 lakh 80 thousand and he is required to take medicine cost of which is Rs.8 thousand per month as per Doctor's advice and, therefore, the petitioner was compelled to file an application praying for modification / deduction of maintenance allowance to the tune of Rs.7 thousand per month because the petitioner / husband is now jobless and he is living a retire life without any pension.
The petitioner also filed the copy of his income tax return under section 143 (1) for the financial year 2014-15, assessment year 2015-16 showing his annual income where from his monthly income will be evident. That apart the petitioner / husband had a cataract operation and is also the under treatment of an eye surgent the cost of operation and other medical expenses all are incurred by the petitioner / husband and as such the order passed by the Learned Additional District Judge, 3rd Court at Alipore rejecting his prayer for deduction / modification of the maintenance amount from 30 thousand to 7 thousand per month should be set aside.
The Learned Counsel for the opposite party / wife on the other hand contended that the impugned order rejecting the application passed primarily on the grounds of it being barred by the principles of res judicata within the maintaining and provisions of Section 11 of the Code of Civil Procedure and the principles of res judicata are not only applicable between two suits but also between different stages for the same suit and the inter locutory application.
It is further contended by the Learned Counsel for the opposite party/wife that for reasons aforesaid the present writ application under article 227 of the Constitution of India is also not maintainable simply because in the order impugned there is no error itself, far being error apparent on the face on record. Therefore, the Hon'ble Court should not interfere with the order impugned. It is also submitted by the Learned Counsel for the O.P./ wife that with the materials available before the Learned Judge in the court below, the impugned order has been passed with no manifest error and also no perversity whatsoever. The Learned Counsel argued that if at this stage the Hon'ble court re-appreciate evidence and / or takes cognizance of new material not placed before the court below, that would not only be the travesty of justice but also grave injustice to the Learned Judge who passed the impugned order being an errorless order on the basis of the materials placed before him.
The Learned Counsel for the petitioner/husband on the other hand submitted that the Civil revisional application filed under article 227 of the Constitution of India does not fall under the provision of Section 11 of the Civil Procedure Code that is res judicata. On the following grounds:-
No.1. An order can be reviewed undoubtedly under order 47 Rule 1 on Section 114 of the Civil Procedure Code.
No.2. Res judicata will operate when matters in issue already decided are directly and substantially in issue in previous application.
No.3. This is not a second application filed by the petitioner / husband for modification of the maintenance amount from Rs.30 thousand to Rs.7 thousand and, therefore, question of attracting the Section 11 of Civil Procedure Code does not arise. It is further submitted by the Learned Counsel for the petitioner/husband that the evidence and the materials on records tend to show that the petitioner / husband has proved his case to the satisfaction and conscience of the Learned Court and able to so that cause of action is different as comprising to the previous cause of action. The case is not hit by the provision of the res judicata as has been raised by the learned counsel for the opposite party / wife and as such the petitioner / husband is entitled to get a relief as prayed for by modification of maintenance amount from Rs.30 thousand to Rs.7 thousand considering the change in circumstances of the petitioner / husband.
Having heard the Learned counsel for the petitioner/husband as well as the learned counsel for the opposite party/ wife I find that the scope and ambit of Article 227 of the constitution is now well settled. The ratio of all these judgments can be summarised into the following points.
Article 227 is an extraordinary jurisdiction and the High Court may interfere only sparingly.
Descrition of the lower courts cannot be curbed and mere mistake of law need to be overlooked.
High Court may interfere only when there is error apparent on the face of the order impugned causing grave miscarriage of justice which is totally absent here.
The jurisdiction is limited to the point of law and factual aspect cannot be gone into and / or evidence re-appreciated. Here in this case there is neither any material irregularity nor any illegality under Article 227 of the Constitution the Court cannot re- appreciate fresh evidence from any party at this stage.
The legislature has mandated it not to be a court of appeal and so the jurisdiction is very limited contemplating interference only when the order impugned "shocks the conscience of the High Court".
With the aforesaid priciple as laid down by the Hon'ble Apex Court of our country as well as the Hon'ble High Court Calcutta keeping in mind let us see whether the order impugned suffers from any material irregularity or material illegality. The Learned court below in its order No.29 dated 09.05.2016 observed "now, as I found on perusal of the case record that vide order No.20 dated 17.06.2015 the petition filed by the husband for reduction of alimony pendent lite of Rs.7 thousand per month has been rejected by this court and there is nothing in the record to show that said order was challenged by the petitioner / husband. As such the aforesaid application cannot be taken up again for consideration. So after considering the submission of both sides and the position of the record, I found that the analogous trial of the present suit should be stayed until and unless the arrear of maintenance is cleared up by the husband in full.
Now, let us see whether the principles of res judicata as enumerated under section 11 of this Civil Procedure Code cause come into operation in the instant revisional application.
The doctrine of res judicata is based upon two Roman Maxims, Nemo debet bis vexari pro uno eteadem, i.e., no man should be vexed twice over for the same cause of action and Interest republical ut sit finis litium, i.e., it is to the interest of the State that there should be an end to litigation. The maxim looks to the interest of the litigant, who should be protected from a vexatious multiplicity of suits, for otherwise a man possessed of wealth and capacity to fight may overawe his adversary by constant dread to litigation. The second maxim is based on the ground of public policy that there should be an end to litigation. Judicial decisions must be accepted as correct, for otherwise if suits were allowed to be filed endlessly for the same cause of action it will be impossible for existing courts to deal with the overgrowing number of suits. Unlimited or perpetual litigation disturbs the peace of the society and leads to disorder and confusion.
Section 11 of the Code of the Civil Procedure lays down that no court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit on the suit in which such issue has been subsequently raised and has been heard and finally decided by such Court.
It has been held by the Supreme Court in a decision reported in AIR 1960 SC 941, that the principle of res judicata applies also in between two statges in the same litigation to the extent that the court, whether trial court or Higher court having at an earlier stage decided the matter in one way, will not allow the parties to reagitate the matter again at the subsequent stage in the same proceedings.
Having regard to the entire facts and circumstances of the present case and also on going through the impugned order No.29 dated 09.05.2016 passed by the Ld. Additional District and Sessions Judge, 3rd Court, Alipore 24-Parganas (S) I find that there was no error apparent on the face of the order and the impugned order does not cause great miscarriage of justice. I further find that there is neither material illegally or any irregularities. The issue of reduction of the maintenance amount from Rs.30 thousand to Rs.7 thousand was earlier rejected by the Ld. Court below on 17.06.2015 vide its order No.20 and thereafter once again similar application was filed by the Ld. Court below which was rejected by the order impugned and as such it cannot be said that the order passed by the Ld. Court below suffers either from any material illegality or irregularity and the present civil revisional application is barred by the principles of the res judicata in view of the provision enumerated under section 11 of the Code of the Civil Procedure.
In view of the observation made in the foregoing paras I am of the view that the present revisional applicatio0n under article 227 of the constitution deserves dismissal in limine.
In the result, the revisional application stands dismissed but without any order as to the cost.
Let a copy of this court is sent to the Ld. Court below for his information and taking necessary action in accordance with the provision of law.
Urgent certified photocopy of the judgment and order if applied for, be supplied to this party upon compliance with all requisite formalities.
( Amitabha Chatterjee, J.)