Allahabad High Court
Shabana Bano vs State Of U.P. And Another on 4 April, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 24th March, 2023 Delivered on 4th April, 2023. A.F.R. Court No. - 73 Case :- APPLICATION U/S 482 No. - 3559 of 2023 Applicant :- Shabana Bano Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Shobhit Pratap Singh,Mujeeb Khan,Naveen Kumar Counsel for Opposite Party :- G.A. Hon'ble Shiv Shanker Prasad,J.
1. Heard Mr. Naveen Kumar, learned counsel for the applicant, learned counsel for opposite party no.2 and learned A.G.A. for the State.
2. This application under Section 482 Cr.P.C. has been filed on behalf of the applicant to quash the judgement and order dated 20th May, 2022 passed by the Principal Judge, Family Court, Sonbhadra, in Criminal Case No. 387 of 2019 (Shabana Bano Vs. Aliraza), under Section 125 Cr.P.C., Police Station-Dudhi, District-Sonbhadra, whereby the application made by the applicant under Section 125 Cr.P.C. has been rejected.
The case of the Applicant
3. The factual matrix of the case in hand, which has been highlighted by the applicant is that marriage of applicant and opposite party no. 2 was solemnized on 4.5.2002 in accordance with Muslim Rites and Rituals at Dudhi, Sonbhadra and in the said marriage, about Rs. 40 lacs with Indica Car were given by applicant's family members to opposite party no. 2 for fulfilment of dowry. After marriage applicant came to her matrimonial house but after few days of her marriage, the husband (opposite party no. 2) and his family members again demanded Rs. 20 lacs from applicant's family members. From the aforesaid wedlock, three female children and a male child was born. When the family members of the applicant did not fulfill the aforesaid additional demand of dowry at Rs. 20 lacs, the opposite party no. 2 and his family members kicked out the applicant from her matrimonial house on 18.11.2013 with her children and on 2.12.2013, opposite party no. 2 sent Talaqnama to applicant. Since the applicant is unskilled housewife/ lady, she is unable to earn livelihood for herself and her children, so she filed Criminal Misc. Application No. 21/2014 (Shabana Bano Versus Ali Raza) Under Section 125 Cr.P.C. for maintaining her and her children but the said application was rejected by learned court below for want of prosecution on 1.3.2017. After rejection of the said application under Section 125 Cr.P.C., the applicant filed another application under Section 126 (2) Cr.P.C. before the Principal Judge, Family Court, Sonbhadra Being Criminal Misc. Application No. 138 of 2017, which has also been rejected/dismissed by learned Principal Judge Family Court, Sonbhadra for want of prosecution on 8th February, 2018. After that the applicant filed a fresh application under Section 125 Cr.P.C. before the Principal Judge Family Court, Sonbhadra, which has been numbered as Criminal Misc Application No. 387 of 2019 (Shabana Bano Vs. Ali Raza). This application filed by the applicant under Section 125 Cr.P.C. has again been rejected by the Family Court vide order dated 20th May, 2022 on the principle of res judicata. It is against this order that the present application has been filed.
Finding and conclusion of the Principal Judge, Family Court, Sonbhadra while passing the impugned order:
4. Before passing the impugned order, the Family Court has framed a conceptual issue whether after rejection of applications of the applicant under Sections 125 and 126 (2) Cr.P.C. for want of prosecution vide orders dated 1st March, 2017 and 8th February, 2018, fresh application under Section 125 Cr.P.C. being Criminal Misc Application No. 387 of 2019 (Shabana Bano Vs. Ali Raza) is legally maintainable or not and the applicant has the right to file a fresh application under Section - 125 of the Code of Criminal Procedure or not?
5. The Family Court has recorded in the order impugned that due to the absence of the applicant, the first application made by the applicant under Section 125 Cr.P.C. has been rejected on 01.03.2017 and the application under section 126 (2) of the Code of Criminal Procedure, has been rejected on 8th February, 2018. From the legal point of view it is apparent that all the rights have been exercised by the applicant in respect of Section-125 of the Code of Criminal Procedure before the Family Court, Sonbhadra and final decision has been taken by the Court twice. It has further been recorded that the proceedings of Section-125 of the Code of Criminal Procedure are of a semi-civil nature. The applicant got the right to apply Section 125 of the Code of Criminal Procedure under the new case after the case was rejected twice due to the absence of the applicant. In the case in question, the said conceptual question is a question of law, which is being decided on the basis of merits and demerits. The facts mentioned in the present application under Section 125 Cr.P.C. cannot be considered until the same is not legally maintainable.
6. The Principal Judge, Family Court has further recorded that the proceedings of Section-125 of the Code of Criminal Procedure are of a semi-civil nature. According to Section-36 of the Family Court Rules, 2006, an order passed under Chapter-IX of the Code of Criminal Procedure for maintenance allowance may be executed by the court by attachment of salary as provided in Section- 60 and Order - XXI of the Code of Criminal Procedure, in addition to the mode of recovery provided in sub-Section 3 of Section 125 Cr.P.C. It is also notable that the warrant for recovery of fine is also sent to the District Collector in Format No. 44 mentioned at the end of the Code of Criminal Procedure. It is also necessary to mention here that under Section-125 Cr.P.C., formal evidence can be given in affidavit. According to Order XVIII Rule-4(1) of the Code of Civil Procedure, 1908, the examination-in-chief shall be on affidavit. In this way, the provisions of Civil Procedure Code are also applicable in miscellaneous case under Section 125 Cr.P.C. Suit under Section-125 of the Code of Criminal Procedure is Semi-Civil Suit in nature. The Principal Judge, Family Court has further recorded that the order dated 1st March, 2017 rejecting the application of the applicant under Section 125 Cr.P.C. and the order dated 8th February, 2018 rejecting the application of the applicant under Section 126 (2) Cr.P.C. attract Section-11 of the Code of Civil Procedure, 1908, as in both the above-mentioned miscellaneous applications i.e under Section 125 and 126 (2) Cr.P.C. and the fresh miscellaneous application under Section 125 Cr.P.C., the parties, the court and the contentious facts are the same. On the basis of such finding, the Principal Judge, Family Court has come to the conclusion that the fresh application under Section 125 Cr.P.C., being Criminal Miscellaneous Case No. 387 of 2019 is barred by the principle of res judicata embodied in Section 11 of the Code of Civil Procedure.
7. Apart from the above, the Principal Judge, Family Court has also opined that the application under Section 125 Cr.P.C. in question has been filed about one and a half years after 2018 and no explanation has been given by the applicant in her plaint for that delay and facts has also not been mentioned by the applicant. There is no legal justification to bring a new application under Section 125 Cr.P.C. before the court once her application has been rejected for seeking maintenance in Section-126 (2) of the Code of Criminal Procedure.
8. On the basis of the aforesaid findings, the Principal Judge, Family Court, Sonbhadra has held that the new application under Section 125 Cr.P.C. being Criminal Misc. Application No. 387 of 2019 (Shabana Bano Vs. Ali Raza) deserves to be dismissed as not being legally maintainable.
9. Submission of the learned counsel for the applicant
(i) It is no doubt true that the application Under Section 125 Cr.P.C. is criminal in nature but few provisions of civil procedures are applied in the case of the applicant like the principle of res judicata. However, as per the definition of res judicata, it shall only be applicable in the case when the earlier case for the same cause of action and on same ground has been finally decided/rejected. The applications of the applicant under Section 125 Cr.P.C. and 126 (2) Cr.P.C. has not been decided on merits the same has been rejected for want of prosecution.
(ii) Through opposite party no. 2, who is holding a very high post in Judiciary and also an infallible person, is presently posted as Additional District Judge, taking advantage of his influence, he is getting the applicant's applications rejected again and again..
(iii) The first application under Section 125 Cr.P.C. filed by the applicant was rejected on the ground of non appearance but applicant being innocent housewife had no knowledge about the date in her case because of non communication by her counsel.
(iv). The applicant has no source of income and she is residing alone in her parental house from 18.11.2013 and her mother and father had also died.
(v). The learned court below has committed manifest error of law in rejecting the application of the applicant under Section 125 Cr.P.C. on the ground of maintainability.
10. In support of his case, learned counsel for the applicant has placed reliance upon following judgments of (i) the Apex Court in the case of Pritam Singh & Another Vs. The State of Punjab reported in AIR 1956 SC 415; (ii) the Apex Court in the case of Dawalsab Vs. Khajasab reported in 2009 0 Supreme (SC) 1239; and (iii) Punjab & Haryana High Court in the case of Manish Tandon Vs. Ankita Bhutani reported in 2017 LawSuit (P&H) 2449; (iv) the Delhi High Court in the case of Khem Chand Kataria VS. Shakuntala Devi reported in II (1983) D.M.C. 201; and the Rajasthan High Court in the case of Jagdish Chandra Vs. Hemlata & Others reported in 1986 LawSuit (Ra) 526.
On the cumulative strength of the aforesaid, learned counsel for the applicant submits that the order impugned passed by the Family Court cannot be legally sustained and is liable to be quashed.
Submissions of the learned A.G.A. for the State
11. On the other-hand, learned A.G.A. controverts the submissions made by the learned counsel for the applicant by submitting that any suit/case, which has been decided either on merits i.e. finally or otherwise, the second suit/case will not be maintainable on the principle of res judicata. In support of his plea, learned A.G.A. has placed reliance upon the judgments of (i) Patna High Court in the case of Mahanth Girjanand Bhagat & Another Vs. Bhagwan Bhagat & Others reported in 1966 SCC OnLine Pat 38; (ii) Mysore High Court Kempegowda Vs. Annegowda & Others reported in 1950 SCC OnLine Kar 42; and (iii) C. Subramanyam Vs. C. Sumathi & Another reported in 2003 (2) ALD Cri 905.
On the cumulative strength of the aforesaid, learned A.G.A. submits that there is no illegality or infirmity in the order passed by the Family Court rejecting the application of the applicant under Section 125 Cr.P.C. on the ground of res judicata, as such the present applicant has no merit and is liable to be dismissed.
12. I have heard the learned counsel for the applicant, learned A.G.A. for the State and have gone through the records of the present application including the order impugned.
Aim and Object of Proceedings under Section 125 Cr.P.C.
13. Before coming to the merits of the case set up by the parties firstly this Court comes on the aim and object of Section 125 Cr.P.C.
14. Section 125 of the Code of Criminal Procedure has been enacted to achieve a social object and the object is to prevent vagrancy and destitution and to provide speedy remedy to deserted or divorced wife, minor children and infirm parents in terms of food, clothing and shelter and minimum needs of one's life. The Supreme Court has been always of the view that maintenance to the wife is an issue of gender justice and the obligation of the husband is on a higher pedestal.
15. In the case of Danial Latifi Vs. Union of India reported in (2001) 7 SCC 740, the Apex Court has opined as follows:
"In interpreting the provisions where matrimonial relationship is involved, we have to consider the social conditions prevalent in our society. In our society, whether they belong to the majority or the minority group, what is apparent is that there exists a great disparity in the matter of economic resourcefulness between a man and a woman. Our society is male dominated both economically and socially and women are assigned, invariably, a dependant role, irrespective of the class of society to which she belongs. A woman on her marriage very often, though highly educated, gives up her all other avocations and entirely devotes herself to the welfare of the family, in particular she shares with her husband, her emotions, sentiments, mind and body, and her investment in the marriage is her entire life a sacramental sacrifice of her individual self and is far too enormous to be measured in terms of money. When a relationship of this nature breaks up, in what manner we could compensate her so far as emotional fracture or loss of investment is concerned, there can be no answer. It is a small solace to say that such a woman should be compensated in terms of money towards her livelihood and such a relief which partakes basic human rights to secure gender and social justice is universally recognised by persons belonging to all religions and it is difficult to perceive that Muslim law intends to provide a different kind of responsibility by passing on the same to those unconnected with the matrimonial life such as the heirs who were likely to inherit the property from her or the wakf boards. Such an approach appears to us to be a kind of distortion of the social facts. Solutions to such societal problems of universal magnitude pertaining to horizons of basic human rights, culture, dignity and decency of life and dictates of necessity in the pursuit of social justice should be invariably left to be decided on considerations other than religion or religious faith or beliefs or national, sectarian, racial or communal constraints. Bearing this aspect in mind, we have to interpret the provisions of the Act in question."
16. In Capt. Ramesh Chander Kaushal v. Veena Kaushal reported in AIR 1978 SC 1807, the Hon'ble Supreme Court remarked:
"The brooding presence of the Constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance."
17. In the case of Chaturbhuj vs Sita Bai reported in (2008) 2 SCC 316, the Hon'ble Supreme Court expressed the view that Section 125 Cr.P.C. is a measure of social justice and is specially enacted to protect women and children and it gives effect to fundamental rights and natural duties of a man to maintain his wife, children and parents when they are unable to maintain themselves. The Hon'ble Supreme Court observed:
"Section 125, Cr.P.C. is a measure of social justice and is specially enacted to protect women and children and as noted by this Court in Captain Ramesh Chander Kaushal v. Veena Kaushal (1978) 4 SCC 70 falls within constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India. It is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. It gives effect to fundamental rights and natural duties of a man to maintain his wife, children and parents when they are unable to maintain themselves. The aforesaid position was highlighted in Savitaben Somabhai Bhatiya v. State of Gujarat (2005) 3 SCC 636."
18. In Shabana Bano v. Imran Khan reported in (2010) 1 SCC 666 in a petition for maintenance under Section 125, one of the objections raised by the husband was that he has already divorced the wife prior to filing of petition in accordance with Muslim Law and under the provisions of Muslim Women (Protection of Rights on Divorce) Act, 1986 she is not entitled to any maintenance after the divorce and after the expiry of the iddat period, however, the Hon'ble Supreme Court has held that even after the disposal of application under Section 3 of the Act, the divorced wife is entitled to claim maintenance under Section 125 beyond the iddat period and till she remarries. The same view has been followed in Shamim Bano v. Asraf Khan reported in (2014) 12 SCC 636.
19. Reiterating the same view, in Shamima Farooqui Vs. Shahid Khan reported in (2015) 5 SCC 705, the Hon'ble Supreme Court has made very following observation:
"......................
"Be it clarified that sustenance does not mean and can never allow to mean a mere survival. A woman, who is constrained to leave the marital home, should not be allowed to feel that she has fallen from grace and move hither and thither arranging for sustenance. As per law, she is entitled to lead a life in the similar manner as she would have lived in the house of her husband. And that is where the status and strata of the husband comes into play and that is where the legal obligation of the husband becomes a prominent one. As long as the wife is held entitled to grant of maintenance within the parameters of Section 125, CrPC, it has to be adequate so that she can live with dignity as she would have lived in her matrimonial home. She cannot be compelled to become a destitute or a beggar."
.......
When the woman leaves the matrimonial home, the situation is quite different. She is deprived of many a comfort. Sometimes the faith in life reduces. Sometimes, she feels she has lost the tenderest friend. There may be a feeling that her fearless courage has brought her the misfortune. At this stage, the only comfort that the law can impose is that the husband is bound to give monetary comfort. That is the only soothing legal balm, for she cannot be allowed to resign to destiny."
20. In the case of Badshah v. Sou. Urmila Badshah Godse reported in AIR 2014 SC 869, though related to standard of proof of legal marriage in a case under Section 125 of the Code, the Supreme Court made a very emphatic observation regarding the ambit and object of the law provided by Section 125 of the Code.
21. From the records of the present application as well as from the order impugned, it is an admitted position that earlier two applications filed by the applicant before the Principal Judge, Family Court, Sonbhadra have been rejected in default/for want of prosecution, meaning thereby that the same have not been finally decided i.e. on merits.
Framing of Issues
22. The legal issues born out from the records of the present application, which has also been admitted by the learned counsel for the parties are as under:
(a) Whether in the proceedings under Section 125 Cr.P.C., the provision of Section 11 of the Cr.P.C. i.e. principle of res judicata will apply or not?;
(b) Whether the principle of res judicata will apply in the case of the applicant under Section 125 Cr.P.C.?; and
(c) Whether fresh application under Section 125 Cr.P.C. filed by the applicant is maintainable or not, after her two applications under Sections 125 and 126 (2) Cr.P.C. have been rejected for want of prosecution.
Answer on Issue no. (a)
23. For examining the first issue in hand i.e. (a), it is necessary for this Court to discuss about the nature of the proceedings under Section 125 Cr.P.C. No doubt, it is a social legislation to protect the women/children/parents, who are in need of support. When such claim for maintenance is made under the personal law, the right is decided by the Civil Court, only with a view to have a speedy disposal of such claims for maintenance, having regard to the urgent need of the victims of desertion and neglect. While making such provision, the Parliament thought it fit to incorporate the provision to enable the victims to claim maintenance through the criminal court. Thus, though a petition/application under Section 125 (1) Cr.P.C. is made before the criminal court as defined under Section 6 Cr.P.C., the right that is decided by the said Court is purely civil in nature. Therefore, undoubtedly, the order made by the Magistrate under Section 125 (1) Cr.P.C. for maintenance is the culmination of such a civil right of an individual. But, Section 125 (3) of the Code empowers the Court to impose a sentence of imprisonment, in the event of failure to obey such order made under Section 125 (1) Cr.P.C. To this extent, the proceeding is criminal in nature. To put it comprehensively, a proceeding initiated under Section 125 Cr.P.C. is quasi-civil and quasi-criminal. The Apex Court has held so in several judgements. Regarding the procedure for making claim before the Court for maintenance, what is filed under Section 125 (1) Cr.P.C. is a pure and simple petition/application and not a complaint as defined in Section 2 (d) of the Code. This would again indicate that a proceeding under Section 125 Cr.P.C. is treated as a quasi-civil and quasi criminal proceeding.
24. In the case of M. Nagabhushana Vs. State of Karnataka reported in (2011) 3 SCC 408, the Apex Court has held that principle of res judicata will apply universally meaning thereby that the same shall apply to both civil and criminal proceedings in order to secure the interest of justice and multiple litigations. The observation of the Apex Court is reproduced herein-under:
"The principles of Res Judicata are of universal application as it is based on two age old principles, namely, `interest reipublicae ut sit finis litium' which means that it is in the interest of the State that there should be an end to litigation and the other principle is `nemo debet his ve ari, si constet curiae quod sit pro un aet eademn cause' meaning thereby that no one ought to be vexed twice in a litigation if it appears to the Court that it is for one and the same cause. This doctrine of Res Judicata is common to all civilized system of jurisprudence to the extent that a judgment after a proper trial by a Court of competent jurisdiction should be regarded as final and conclusive determination of the questions litigated and should for ever set the controversy at rest.
15. That principle of finality of litigation is based on high principle of public policy. In the absence of such a principle great oppression might result under the colour and pretence of law in as much as there will be no end of litigation and a rich and malicious litigant will succeed in infinitely vexing his opponent by repetitive suits and actions. This may compel the weaker party to relinquish his right. The doctrine of Res Judicata has been evolved to prevent such an anarchy. That is why it is perceived that the plea of Res Judicata is not a technical doctrine but a fundamental principle which sustains the Rule of Law in ensuring finality in litigation. This principle seeks to promote honesty and a fair administration of justice and to prevent abuse in the matter of accessing Court for agitating on issues which have become final between the parties."
(Emphasis supplied)
25. In view of the aforesaid, this Court is of the firm opinion that in the proceedings initiated by the application under Section 125 Cr.P.C., the provisions of Section 11 of the Code of Civil Procedure i.e. principle of res judicata will apply.
Answer on Issue nos. (b) & (c)
26. For examining the second and third issues i.e. (b) & (c), it is important for this Court to refer to Section 11 of the C.P.C. wherein the principle of res judicata has been defined, which is being quoted herein below:
"11. 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 or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
Explanation I.-- The expression former suit shall denote a suit which has been decided prior to a suit in question whether or not it was instituted prior thereto.
Explanation II.-- For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court.
Explanation III.--The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.
Explanation IV.-- Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
Explanation V.-- Any relief claimed in the plaint, which is not expressly granted by the decree, shall for the purposes of this section, be deemed to have been refused.
Explanation VI.-- Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating .
Explanation VII.-- The provisions of this section shall apply to a proceeding for the execution of a decree and references in this section to any suit, issue or former suit shall be construed as references, respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree.
Explanation VIII.-- An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised."
27. The "principle of res judicata" literally means a "thing adjudicated" or "an issue that has been definitively settled by judicial decision". The principle operates as a bar to try the same issue once over. It aims to prevent multiplicity of proceedings and accords finality to an issue, which directly and substantially had arisen in the former suit between the same parties or their privies and was decided and has become final, so that the parties are not vexed twice over; vexatious litigation is put an end to and valuable time of the court is saved.
28. In Nagendrappa Natikar vs Neelamma, reported in AIR 2013 SC 1541, the question was whether a compromise entered into by husband and wife under Order XXIII, Rule 3 of the Code of Civil Procedure (C.P.C.) agreeing for a consolidated amount towards permanent alimony and thereby giving up any future claim for maintenance, accepted by the Court in a proceeding under Section 125 of the Code of Criminal Procedure (Cr.P.C.), would preclude the wife from claiming maintenance in a suit filed under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 ? In this case, after the petition was disposed of on the basis of compromise, the respondent wife filed a Misc. Application under Section 127, Cr.P.C. before the Family Court for cancellation of the earlier order and also for awarding future maintenance. While the application under Section 127, Cr.P.C. was pending, respondent wife also filed a suit before the Family Court under Section 18 of the Hindu Adoption and Maintenance Act claiming maintenance at the rate of Rs.2,000/- per month. Both the petitions were resisted by the husband stating that the parties had already reached a compromise with regard to the claim for maintenance. The question of maintainability was raised as a preliminary issue. The Family Court held by its order dated 15.9.2009 that the compromise entered into between the parties in a proceeding under Section 125, Cr.P.C. would not be bar in entertaining a suit under Section 18 of the Act. The suit was then finally heard on 30.9.2010 and the Family Court decreed the suit holding that the respondent is entitled to monthly maintenance of Rs.2,000/- per month from the defendant husband from the date of the filing of the suit. The High Court also confirmed the same.
29. Upholding the judgment of the High Court, the Hon'ble Supreme Court pointed out that Section 25 of the Contract Act provides that any agreement which is opposed to public policy is not enforceable in a Court of Law and such an agreement is void, since the object is unlawful. The Court held that 'Proceeding under Section 125, Cr.P.C. is summary in nature and intended to provide a speedy remedy to the wife and any order passed under Section 125, Cr.P.C. by compromise or otherwise cannot foreclose the remedy available to a wife under Section 18(2) of the 1956 Act' and observed:
"Section 125, Cr.P.C. is a piece of social legislation which provides for a summary and speedy relief by way of maintenance to a wife who is unable to maintain herself and her children. Section 125 is not intended to provide for a full and final determination of the status and personal rights of parties, which is in the nature of a civil proceeding, though are governed by the provisions of the Cr.P.C. and the order made under Section 125, Cr.P.C. is tentative and is subject to final determination of the rights in a civil court."
30. In Jaswant Singh Vs. Custodian of Evacuee Property reported in (2004) 3 SCC 277, the Apex Court has laid down a test for determining whether a subsequent suit is barred by res judicata:
"14....In order that a defence of res judicata may succeed it is necessary to show that not only the cause of action was the same but also that the plaintiff had an opportunity of getting the relief which he is now seeking in the former proceedings. The test is whether the claim in the subsequent suit or proceedings is in fact founded upon the same cause of action which was the foundation of the former suit or proceedings."
31. In both the cases of Nagendrappa Natikar and Jaswant Singh (Supra), the Apex Court has clarified that if the earlier suit is not decided on merits, meaning thereby that the same is decided on the basis of compromise without entering into the merits of the case and without affording opportunity of hearing to the claimant/applicant, the second suit/case for the same relief will be maintainable.
32. Similarly dealing with the same issue, the Apex Court in its latest judgment in the case of Prem Kishore & Others Vs. Brahm Prakash & Others reported in 2023 SCC OnLine SC 356, in paragraph nos. 37 and 38 has held as follows:
"37. On a perusal of the above authorities, the guiding principles for deciding an application under Order 7 Rule 11(d) of the CPC can be summarized as follows:-
(i) 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;
(ii) The defence made by the defendant in the suit must not be considered while deciding the merits of the application;
(iii) 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; and
(iv) 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.
(See: Srihari Hanumandas Totala v. Hemant Vithal Kamat. (2021) 9 SCC 99)
38. The general principle of res judicata under Section 11 of the CPC contain rules of conclusiveness of judgment, but for res judicata to apply, the matter directly and substantially in issue in the subsequent suit must be the same matter which was directly and substantially in issue in the former suit. Further, the suit should have been decided on merits and the decision should have attained finality. Where the former suit is dismissed by the trial court for want of jurisdiction, or for default of the plaintiff's appearance, or on the ground of non-joinder or mis- joinder of parties or multifariousness, or on the ground that the suit was badly framed, or on the ground of a technical mistake, or for failure on the part of the plaintiff to produce probate or letter of administration or succession certificate when the same is required by law to entitle the plaintiff to a decree, or for failure to furnish security for costs, or on the ground of improper valuation, or for failure to pay additional court fee on a plaint which was undervalued, or for want of cause of action, or on the ground that it is premature and the dismissal is confirmed in appeal (if any), the decision, not being on the merits, would not be res judicata in a subsequent suit."
33. From the deeper scrutiny of the aforesaid principle of res judicata and the commentary given by Sir Dinshah Fardunji Mulla (18th Edition-2011) on Code of Civil Procedure, this Court is of view that the principle of res judicata would apply only when a matter will be said to have been "heard and finally decided" notwithstanding that the earlier matter/case/suit was disposed off in any of the following ways:
"(i) ex parte; or
(ii) by dismissal under Order XVII, Rule 3, but not when the dismissal is under Order XVI, Rule 1 for failure to pay adjournment cost; or
(iii) by a decree on an award; or
(iv) by oath tendered under Section 8 of the Indian Oaths Act, 1873; or
(v) by dismissal owing to plaintiff's failure to adduce evidence at the hearing."
34. The principle of res judicata will have no application when the earlier matter/case/suit has not been heard and finally decided and the same has been dismissed:
"(i) for want of jurisdiction; or
(ii) for default of plaintiff's appearance under Order IX, Rule 8. (But, a fresh suit on the same cause of action may be barred under Order IX, Rule 9); or
(iii) on the ground of non-joinder of parties, or misjoinder of parties, or multifariousness; or on the ground that the suit was badly for default of plaintiff's appearance under Order IX, Rule 8. (But, a fresh suit on the same cause of action may be barred under Order IX, Rule 9); framed," or on the ground of a technical mistake; or
(iv) for failure on the part of the plaintiff to produce probate or letters of administration or succession certificate when the same is required by law to entitle the plaintiff to a decree; or
(v) for failure to furnish security for costs under Order XXV, Rule 2; or
(vi) on the ground of improper valuation, or for failure to pay additional court-fee on a plaint which was undervalued; or
(vii) for want of a cause of action; or
(viii) for want of notice; or
(ix) on the ground that it is premature;
(x) as not pressed;
(xi) as having become infructuous;
(xii) as having been settled, or ended by virtue of compromise."
"Emphasis supplied"
35. Section 11 of the Code of Civil Procedure itself provides that an issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit.
Conclusion
36. In view of the aforesaid, it is apparent that the principle of res judicata will only be applicable in second case/application in which the matter directly and substantially in issue has been directly and substantially in issue in the former applications {under Sections 125 and 126 (2) Cr.P.C.} between the same parties i.e. Shabana Bano and Ali Raza under which the applicant claimed maintenance allowance, in a Court competent to try such subsequent application/case in which such claim has been subsequently raised, and has been heard and finally decided by such Court, but if earlier case has not been decided finally or without merits or affording opportunity of hearing to the applicant, second case/application for the same relief i.e. maintenance allowance will be maintainable and the principle of res judicata will not apply.
37. It is an admitted position that the earlier two cases filed by the applicant under Sections 125 Cr.P.C. and 126 (2) Cr.P.C. being Criminal Misc. Application No. 21 of 2014 and Criminal Misc. Application No.138 of 2017 respectively have been rejected for want of prosecution and the same have not been finally decided after affording opportunity of hearing to the applicant. As such, this Court is of the firm opinion that even though fresh application filed by the applicant under Section 125 Cr.P.C. being Criminal Misc. Application No. 387 of 2019 filed for the same relief/cause of action but the same is maintainable as the principle of res judicata will not apply therein. Both the issues are answered accordingly.
38. Consequently, the judgement and order dated 20th May, 2022 passed by the Principal Judge, Family Court, Sonbhadra, in Criminal Case No. 387 of 2019 (Shabana Bano Vs. Aliraza), under Section 125 Cr.P.C., Police Station-Dudhi, District-Sonbhadra cannot be legally sustained and hereby set aside. Criminal Misc. Application No. 387 of 2019 (Shabana Bano Vs. Ali Raza) is restored to its original number. The Principal Judge, Family Court, Sonbhadra is directed to consider and decide the same afresh on merits, in accordance with law, by means of a reasoned and speaking order, after affording opportunity of hearing to the parties concerned, preferably within a period of six months from the date of production of a certified copy of this order, without granting any unnecessary adjournment to either of the parties, if possible on day to day basis.
39. The present application succeeds and is allowed subject to the observations made herein-above. There shall be no order as to costs.
(Shiv Shanker Prasad, J.) Order Date :- 04.04.2023 Sushil/-