Orissa High Court
Rabindra Biswal vs Hemalata Biswal And Ors. on 12 May, 1989
Equivalent citations: 1990CRILJ45
ORDER L. Rath, J.
1. The petitioner has moved this Court under Section 482, Cr.P.C. against the revisional order and the original orders directing him to pay maintenance to opposite party No. 1 at the rate of Rs. 200/- per month. The opposite party No. 1 filed a petition under Section 125, Cr.P.C. against the petitioner and his father, the present opposite party No. 2 claiming herself to be the wife of the petitioner and pleading that at the time of the marriage in 1981 the petitioner had demanded a sum of Rs. 4,000/- out of which a sum of Rs. 1,500/-had been paid within one year of the marriage. She was not permitted to visit her father's place unless the balance amount was paid and was also ill-treated for non-payment of the amount. After two years and 4 months of the marriage, the petitioner sent for the uncle of opposite party No. 1 and drove her out of the house after obtaining her signature on a blank paper and gave out that he would divorce her.
Contesting the application, the petitioner denied the fact of marriage with opposite party No. 1 stating that she had been falsely set up by some other persons inimically disposed towards him to harass him, and further contended that the petition was not maintainable since a suit filed by the opposite party No. 1 in which the fact of relationship of the petitioner and opposite party No. 1 was to be decided, was pending at the time.
2. Mr. A.K. Mishra, learned counsel appearing for the petitioner has mainly urged in assailing the order, the finding of the learned Magistrate as also of the revisional Court of the petitioner being the husband of opposite party No. 1 as not available to have been reached since T. S. S. of 1984 filed in the court of the Munsif, Banki by the opposite party No. 1 for injunction against the petitioner seeking to restrain him from entering a second marriage was dismissed for default under Order 9, Rule 8, C.P.C. and hence the bar under Order 9, Rule 9, C.P.C. operated for which the opposite party No. 1 could not have brought any fresh suit which substantially involved determination of relationship of the parties as husband and wife and for such reason no finding could be reached on the application under Section 125, Cr.P.C. of the parties having a mutually married status. The fact that opposite party No. 1 had filed the suit for injunction and that the same has been dismissed for default without any restoration is not disputed by the learned counsel for opposite party No. 1.
3. Order 9, Rule 9, C.P.C. provides that where a suit has been dismissed for the plaintiffs non-appearance even though the defendant had appeared when the suit was called for hearing, the plaintiff is not eligible to bring a fresh suit on the same cause of action but may apply to set aside the order of dismissal on showing sufficient cause for his non-appearance. The bar contemplated under the provision is a prohibition to bring a new suit on the same cause of action. On the face of it, the provision cannot apply to an application under Section 125, Cr.P.C. and hence even if a suit is dismissed for default and another suit on the same cause of action would be barred, yet an application under the Criminal Procedure Code statutorily provided for would not suffer from any disqualification. It is well settled that the bar contemplated under Order 9, Rule 9, C.P.C. is not that of res judicata since there is no adjudication of the issues involved in the suit by the competent court. The provisions of Order 9, Rule 9, C.P.C. are only procedural in character and hence would not have any overriding effect over statutory rights.
4. Such a question came up before the Federal Court of India in AIR 1950 FC 1 Subba Rao v. Mattapalli Raju, as to whether a second suit for redemption of a mortgage would lie after a first suit has been dismissed under Order 9, Rule 8, C.P.C. Their Lordships held that the right of redemption is one which the mortgagee has under Section 68 of the Transfer of Property Act and subsists as long as the mortgage itself subsists and that such a right can be extinguished only as provided under the section. Unless the equity of redemption is so extinguished, a second suit for redemption if filed within the period of limitation would, therefore, not be barred. Coming to such conclusion, their Lordships held that the right to redeem the property was not extinguished by the procedural provisions contained in the Civil Procedure Code. The provisions of Order 9, Rule 9, C.P.C. which applies to suits would have no application to applications under the Code of Criminal Procedure. It was held not to apply to probate proceedings in AIR 1943 Pat 281, Gorakh Ahir v. Jamuna Ahir, which itself relied on the earlier cases of the Madras High Court and Calcutta High Court. 1 am as such to hold that the statutory right of the opposite party No. 1 under Section 125, Cr.P.C. is in no way negatived by the procedural provision of Order 9, Rule 9, C.P.C. and further such provision has absolutely no application to applications under Section 126, Cr.P.C. Mr. Misra also relied upon (1974) 40 Cut LT 379 : i (AIR 1974 Ori 190), Sudarsan v. Jagannath and AIR 1965 SC 295 (Suraj Rattan v. Azamabad Tea Co. Ltd. to submit that since in the suit for injunction the substantial question that fell to be decided was the relationship of parties without which no injunction could be granted in favour of the opposite party No. 1 and that the same question also arises for decision in the application under Section 125, Cr.P.C. it should be held that the cause of action of the suit and the application was the same and hence the application should be held to have been barred. In view of the conclusion reached as above by me, such submissi6ns are not tenable.
5. Mr. Misra also faintly urged, referring to the evidence of P.Ws. 1, 2, 4 and 8, to displace the conclusion of marriage of the petitioner with the opposite party No. 1. Taking a general view of the evidence, I do not think it is a fit case where the jurisdiction under Section 482, Cr.P.C. is to be invoked to disturb the concurrent findings of the two courts below regarding the marriage of the petitioner and opposite party No. 1.
6. In the result, the petition has no merit and is dismissed.