Rajasthan High Court - Jaipur
Smt. Mohini Devi vs Ram Chandra Vardani on 19 July, 2001
Equivalent citations: 2001(3)WLC622, 2002(2)WLN549
JUDGMENT Sharma, J.
1. This appeal has been preferred by appellant Smt. Mohini Devi against the judgment dated 15.6.1996, whereby, the Judge, Family Court, Ajmer refused to grant the decree of divorce to the husband-petilioner Ram ChandraVardani.
2. The facts giving rise to filing of this appeal briefly stated are that the parties were married according to the Hindu Rites on 19.4.1984 at Kishangarh District, Ajmer. They had no issue out of the wedlock, Husband Ram Chandra brought a petition against his wife under Section 13 of the Hindu Marriage Act, 1955 (hereinafter called the "Act") for dissolution of marriage on the ground of cruelty. However; the husband petitioner also alleged in the petition that on 17.7.1991, the Panchayat and respective persons of the society granted decree of divorce on the basis of their mutual consent.
3. Appellant-wife denied all the allegations made in the petition and stated that she never divorced her husband on 17.7.1991 before the Notary Public. She has also alleged that respondent husband, without her consent has married to a lady namely, Chandra resident of Kekri.
4. On the basis of the pleadings of the parties, the following issues were framed on 25.4.1996:-
(i) Whether the divorce between the parties has been taken place on 17.7.1991 and the divorce deed has been written?
(ii) Whether the appellant-respondent committed cruelty as stated in the application?
(iii) Whether the non-appellant-applicant is entitled for divorce and if yes, then to what extent?
(iv) Whether the non-appellant-applicant had got married with another woman and committed adultery?
(v) Help and relief?
5. The respondent Ram Chandra Vardani examined himself and also examined witnesses Tola Ram, Karmaveer, Vasu Mal in his evidence. On the other hand, appellant wife Smt. Mohini examined herself and witnesses Bachu Mal and Dayal Das Arya in her evidence.
6. The learned Judge, Family Court while deciding issue No. 1 in favour of the petitioner has reached to the conclusion that "Panchayat" had granted decree of divorce to the parties on 17.7.1991 and as such no second decree of dissolution of marriage can be granted and resultantly dismissed the petitioners' petition under Section 13 of the Act.
7. We have heard the rival contentions of the learned counsel for the respective parties. The learned counsel for the respondent raised a preliminary legal objections regarding maintainability of appeal.
8. The learned counsel for the respondent has contended that ultimate result of the case goes in favour of the appellant non- petitioner and as such she cannot prefer an appeal against the judgment. He has placed reliance on the case of Tara Singh v. Smt. Shakuntal (1), The Commissioners for the Port of Calcutta v. Bhairadinram Durga Prosad (2), and in the case of Smt. Ganga Bai v. Vijay Kumar and Ors. (3);
9. On the other hand, the learned counsel for the appellant has argued that although the petition under Section 13 of the Act has been dismissed by the Family Court, but a reading of the judgment as a whole, would show that the petitioner had won the suit and the dismissal of the petition was not on account of any defect in the petitioners claim nor in the frame of the petition nor even on any technical reason, but solely because the "Panchayat" had granted divorce to the parties on the basis of their consent. The petitioners' grievance was redressed by deciding issue No. 1 in his favour and therefore, second decree for dissolution of marriage was not granted. In view of the fact that Panchayat had also granted decree of divorce to the parties on 17.7.1991, therefore, aforesaid finding would operate as res-judicata in subsequent suit by appellant and the appellant cannot claim any relief tinder Section 9 to 13 of the Act.
10. We have carefully examined the record of the case and findings arrived at by the Family Court. The petition of the husband under Section 13 of the Act was based on the ground of cruelly. However, in the petition this fact has also been narrated that the parties were granted divorce on 17.1.1991 by the "Panchayat" and respective persons of the society. But on the above allegations no such declaration was sought. In other words, it can, therefore, be safely held that the petitioners' petition was not a suit or proceedings for declaration as to the matrimonial status of any person as contained in the Explanation (b) appended to Section 7 of the Family Court Act, 1984. Since, it was not a petitioner's suit for declaration as to the matrimonial status, therefore, the Family Court had no occasion to frame and decided the issue of granting decree of divorce to the parties by the "Panchayat". Issue No. 1 as framed by the Family Court was redundant to the dispute between the parties in the petition under Section 13 of the Act.
11. In this back ground of the matter, we have considered the question of maintainability of the appeal filed by the appellant.
12. In the case of Tara Singh (supra) the respondent preferred an appeal against the judgment of the learned District Judge, Ajmer dismissing the wifes' petition for Restitution of Conjugal Rights under Section 9 of the Hindu Marriage Act on the ground that the judgment adversely affects, the appellant husband in that the learned Judge has found that the respondent is still the wife of husband. The learned Single Judge of this court observed that ultimate order passed by the Learned District Judge dismissing the wifes' petition for Restitution of Conjugal Rights was in no way against the husband as he himself wanted dismissal of the petition. The Court held that merely because the finding of the learned District Judge on the point is against the husband. He cannot be taken to have been adversely affected by it as in law he will not be bound by such a finding, the ultimate result of the case being in favour of the husband. That being so, husband is not entitled to present this appeal.
13. In the case of The Commissioner for the Port of Calcutta (Supra), the plaintiff preferred second appeal against the decree made by the Second Court of Sub-ordinate Judge, Alipore affirming a decree for ejectment against the respondent for the purpose of challenging the view expressed by the Lower Appellate Court as to the sufficiency of stamp paid upon the indenture of lease. In this background of the matter, it was held that the appeal filed by the appellant is not maintainable because the decree of the Lower Appellate Court, as if stands, is entirely in favour of the appellant ad the appellant cannot have any right of appeal against a finding when that finding does not affect the decree which is wholly in its favour.
14. Having carefully gone through and considered the authorities cited on behalf of respondent-husband, we are of the opinion that though the law laid down by the Rajasthan High Court and Calcutta High Court holds good, yet, the facts involved in those cases being entirely different to the facts involved in the present case, the ratio of the aforesaid cases do not apply to the present case.
15. In the case of Smt. Ganga Bai (supra), it was held that the trial Court decreed the mortgagee's suit only as against Defendant No. 1, the father, and directed the sale of his one half interest in the mortgaged property. Though, the suit was dismissed as against defendant No.2 and 3, they filed an appeal in the High Court to challenge the finding of the trial Court that the deed of partition was a sham and colourable transaction. It was held that the finding recorded by the trial Court that the partition was a colourable transaction was unnecessary for the decision of the suit because even if the Court were to find that the partition was genuine, the mortgage would only have bound the interest of the father as the debt was not of a character which, under the Hindu Law, would bind the interest of the sons. The matter relating to the partition was not directly and substantially in issue in the suit, the finding that the partition was sham cannot operate as res-judicata. Therefore, the appeal filed by defendant No.2 and 3 against that finding was not maintainable, even on the assumption that the High Court of Calcutta is right in its view that though under the Code there could in its view that though under the Code there could be no appeal against a finding. Yet "on grounds of justice" an appeal may lie against a finding provided that it would operate as res-judicata so as to preclude a party aggrieved by the finding from agitating the question covered by the finding in any other proceeding.
16. However, the Apex Court while concluding, left open the view taken by the Calcutta High Court and held that it is not necessary to determine whether the view of the Calcutta High Court is correct.
17. In the case of Pawan Kumar Gupta v. Rochiram Nagdeo (4), the respondent was tenant of the suit building which belonged to one Narain Prasad. As per the sale deed executed Narain Prasad transferred his right in the suit building to the appellant. On its footing, appellant filed a civil suit for eviction of the respondent, on the ground that respondent has not paid rent to appellant. That suit was contested by the respondent raising the contention has not paid rent to appellant. That suit was contested by the respondent raising the contention that building was actually purchased by Pyare Lal (father of the appellant) as per sale deed and appellant is only a name-lender therein, and hence appellant is not entitled to get the eviction order or the rent of the building. In that suit the Court found that appellant is real owner of the building pursuant to the sale deed and that he was entitled to receive rent of the building. However, the suit was dismissed as the respondent deposited the arrears of rent in Court during pendency of the suit but appellant was permitted to withdraw the arrears of rent so deposited by the respondent. Appellant filed the present suit for respondent. Appellant filed the present suit for eviction of the respondent on the ground that the appellant requires the building bona-fide for the purpose of starling the business of his own. Respondent contested the suit and in the written, statement he contended, inter-alia, that appellant is only benami to his father pyare lal. One of the issue raised by the trial Court in the present suit was whether, respondent is precluded from raising the issue regarding benami nature of sale deed, due to the bar of res-judicata. The trial Court held that the finding in the previous suit against the respondent would not operate as res-judicata as the said suit was ultimately dismissed. The trial Court concluded that the appellant is real transferee under the sale deed and is entitled to institute the suit. It was further found that appellant bona-fide requires the building for his own business purpose and the decree was granted for eviction of the respondent. The District Court in the first appeal filed by the respondent upheld all the findings arrived at by the Trial Court and dismissed the appeal. A second appeal was preferred by the respondent. The learned Single Judge held that there is no bar of res-judicata for the respondent in raising the contention regarding the title of the appellant over the building and reversed the findings of the Courts regarding benami transaction and held that sale deed was executed in favour of Pyare lal and that transaction is hit by Section 3 of the Benami Act and consequently, the learned Single Judge dismissed the suit filed by the appellant.
18. In this background of the matter, it was held that the word "dismissed" has been employed in the last paragraph of the judgment, a reading of it, as a whole, would show that the plaintiff had won the suit. Dismissal of the suit was not on account of any defect in the plaintiff's claim nor in the frame of the suit nor even on any technical reason, but solely because the amount claimed by the plaintiff has been deposited by the defendant in the Court during the pendency of the suit.
19. The Apex Court further held that it is not correct to say that the party has no right of appeal against such a decision on an issue though the suit was ultimately recorded as dismissed. There was no hurdle in law for the defendant to file an appeal against the judgment and decree in that first suit as he still disputed those decisions on such contested issues. It was further held that if dismissal of the prior suit was on a ground affecting the maintainability of the suit any finding in the judgment adverse to the defendant would not operate as res-judicata in a subsequent suit. But if dismissal of the suit was on account of extinguishment of the cause of action or any other similar cause a decision made in the suit on a vital issue involved therein would operate as res-judicata in a subsequent suit between the same parties. It is for the defendant in such a suit to choose whether, the judgment should be appealed against or not? If he does not choose to file the appeal he cannot thereby avert the bar of res-judicata in the second suit. Hence, the appellant's plea that there is a bar of res-judicata in re-agitating on the issue regarding appellant's title to the building was upheld.
20. In the similar situation, in the case in hand, the petition of the respondent-petitioner filed under Section 13 of the Hindu Marriage Act, 1985 was dismissed on the ground that the Panchayat had already granted divorce to the parties on 17.7.1991 and as such no second decree of divorce dissolving the marriage of parties need to be granted. In such a situation, the appellant has every right to challenge the finding on issue No. 1 as it may operate as res-judicata in subsequent suit of proceedings filed by the appellant for any of the reliefs under Sections 9 to 13 of the Hindu Marriage Act. However, we find that the issue No. 1 is redundant to the controversy between the parties in a petition under Section 13 of the Hindu Marriage Act.
21. In the result, we allow the appeal treating it maintainable and set aside the findings arrived at by the learned Family Court. While striking out issue No. 1, we remit the case to the learned Family Court with the direction to decided issue No. 2,3, 4 and 5 afresh on the basis of evidence already adduced by the parties. The record of the case be sent back forthwith. The parties are directed to appear in the Family Court on 6.8.2001.