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1979 DIGILAW 173 (MP)

Simon Manual Lobo v. Judith Lobo

1979-05-02

CHANDRA PAL SINGH

body1979
Short Note : 1. The material facts, in short, are that the petitioner Simon Manual Lobo is the father of the respondent, Miss Judith Lobo. Miss Judith Lobo through her mother M.Lobo acting as her next friend, presented an application for maintenance under section 488 of the Old Code of Criminal Procedure successfully before the Addl. Dist Magistrate, Bhopal, in Misc. Cr. Case No.29 of 1964 who as a result of compromise between the parties by his order of 23-9-1964 came to grant maintenance at the rate of Rs.60 per month to Miss Labo, the respondent. The petitioner as a result of compromise continued paying the respondent maintenance at the rate of Rs.60 per month till she attained the age of 18 years, that is to say. 18 years. He thereafter stopped payment on January, 1978. This led Miss Judith Lobo to present another application again through her mother as her next friend, this time before the Judicial Magistrate First Class, Jabalpur for granting her maintenance since January 78. Her father, the petitioner, objected to this application on the ground that the matter had already stood concluded between the parties by an earlier order of the Addl. District Magistrate of 23-9-1964. The Magistrate, however, overruled the objection. Held: On hearing the learned counsel for the petitioner and the respondent, I find that the subsequent application by the respondent Miss Judith Lobo (through her mother, the next friend) for granting her maintenance is barred. There is no dispute that she had earlier moved an application under section 488 of the Code of Criminal Procedure and the matter as a result of compromise between the parties had stood decided between them by a Court of competent jurisdiction and in pursuance of the compromise embodied in the final order of the Court, the petitioner did continue maintaining his daughter, the respondent, till she became 18 years of age. Hence the judgment between the parties binds them. That judgment operates as estoppel by record. (See section 115, the Indian Evidence Act read with section 40 of the same Act which makes such judgments relevant). The reasoning of the learned Magistrate that the principle of barring a subsequent petition would not apply to a judgment arrived at as a result of compromise is erroneous. 2. That judgment operates as estoppel by record. (See section 115, the Indian Evidence Act read with section 40 of the same Act which makes such judgments relevant). The reasoning of the learned Magistrate that the principle of barring a subsequent petition would not apply to a judgment arrived at as a result of compromise is erroneous. 2. The argument for the respondent that the daughter is competent to bring another application through her mother, her next friend because her mother had been appointed the guardian of the person of Miss Judith Lobo by the District Judge, Bhopal in Misc. Judicial Case No. 39 of 1962 on the ground that under section 3 of the Indian Majority Act, she would be deemed to have attained majority on attaining 21 years of age again ignores the fact that an application for the same relief over again would be barred by principle of res judicata (estoppel by record). No doubt, the respondent, if so advised. may apply for the continuance of the assistance before a proper forum on the basis of the order of the Additional District Magistrate, Bhopal on 23-9-1964 which apparently continues to be in force till it would be exhausted on the respondent attaining the age of 21 years subject to the provisions of section 125 Cr.P.C., particularly the first proviso of clause (3) of that section, but that is a different matter. Revision allowed.