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2011 DIGILAW 229 (CHH)

NEELKANTH JAISWAL v. MANJU LATA JAISWAL

2011-07-12

R.L.JHANWAR, T.P.SHARMA

body2011
JUDGMENT As per HOD 'ble Shri T.P. Sharma, J. 1. Challenge in this appeal is to the judgment & decree dated 22/2/ 2007 passed by Judge, Family Court, Korba in Misc. Civil Suit No. 12/2006 filed for return of Stridhan on behalf of the respondent. 2. Judgment and decree has been impugned on the ground that present suit was hit by the Principle of res judicata but Court below has not considered and thereby committed an illegality. 3. Brief case necessary for disposal of this appeal is as per pleadings of the parties specially as per pleading of the appellant present respondent had filed one suit for restitution of conjugal rights in alternate for dissolution of marriage by a decree of divorce before the Principal Judge, Family Court Durg in Civil Suit No. 431-A/2005 where respondent has also claimed return of Stridhan in. terms of Section 27 of the Hindu Marriage Act, 1955 (in short 'the Act'), while dismissing the application filed on behalf of the respondent, Principal Judge, Family Court Durg has directed to return one Bed and Almirah to the respondent. Therefore, in the light of previous suit for return of Stridhan the present application for return of Stridhan is not maintainable in accordance with Section 11 of the Civil Procedure Code, 1908. 4. Respondent has denied the aforesaid allegations and while claiming Stridhan she has specifically pleaded that Stridhan are in possession of appellant which she is entitled to receive back. 5. After affording an opportunity of hearing to the parties learned Judge, Family Court Durg has allowed the claim in part and decreed the suit to the tune of Rs. 43,890/- out of the claim of Rs. 2,43,178/-. 6. Shri Uttam Pandey, Advocate for the appellant and Shri Pallav Mishra, Advocate for the respondent are heard. 7. Learned counsel for the appellant vehemently argued that in the light of decision in first suit relating to claim of Stridhan along with other claims present suit is not maintainable in accordance with Section II of the Civil Procedure Code, 1908. 8. Learned counsel for the appellant further argued that Court below has wrongly arrived at a finding that no opportunity has been provided to the parties by the Court situated at Durg while deciding the Civil Suit No. 431A/2005. 9. 8. Learned counsel for the appellant further argued that Court below has wrongly arrived at a finding that no opportunity has been provided to the parties by the Court situated at Durg while deciding the Civil Suit No. 431A/2005. 9. On the other hand, learned counsel for the respondent opposed the appeal and submits that claim for return of Stridhan is not maintainable in terms of Section 27 of the Hindu Marriage Act, 1955, a separate suit is required in terms of explanation (C) of Section 7 (1) of the Family Courts Act, 1984. 10. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the parties. In the present case present respondent has claimed the return of Stridhan to the tune of Rs. 2,43,178/- but respondent has adduced the evidence relating to the property to the tune of Rs. 43,890/- for which decree has been granted by the Court below, we do not find any illegality in such finding. 11. As regard the question of Principle of res judicata is concerned present appellant has alleged aforesaid pleadings in his written statement, burden was on him to prove such issues in the light of pleadings of the appellant defendant. 12. Learned Judge, Family Court, Korba has framed the issue No. 2A and B relating to the maintainability of the petition in the light of alleged previous decision. 13. In order to prove the aforesaid issues appellant was required to file a copy of plaint, written statement, issues and evidence if necessary of the previous suit but reasons best known to the appellant, the appellant has not tiled any such document for proving aforesaid issues, even otherwise in order to attract the provisions of Section 11 of the Civil Procedure Code, 1908 i.e. principle of res judicata the Court is required to examine that whether the issue of previous suit is directly and substantially issue in the present case. Section 11 of the Civil Procedure Code, 1908 reads as follows:- "11. Section 11 of the Civil Procedure Code, 1908 reads as follows:- "11. Res Judicata.-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. ...................... Explanation II. ..................... Explanation III. .................... Explanation IV. .................... Explanation V. ...................... Explanation VI. .................... Explanation VII. ................... Explanation VIII. ................. " 14. The previous suit No. 431-A/2005 decided between the parties by the Principal Judge, Family Court, Durg was for dissolution of marriage by a decree of divorce in which the parties were entitled for return of some property in terms of Section 27 of the Hindu Marriage Act, 1955. The provisions of Section 27 of the Hindu Marriage Act, 1955 reads as follows:- "27. Disposal of property.-In any proceeding under this Act, the court may make such provisions in the decree as it deems just and proper with respect to any property presented, at or about the time of marriage, which may belong jointly to both the husband and the wife." 15. The scope of Section 27 of the Hindu Marriage Act, 1955 is limited and only order relating to property presented at or about the time of marriage may be made by the Court dealing with the issue tribal under the Hindu Marriage Act, 1955 belonging jointly to both the husband and the wife. The claim of the respondent in the present suit shows that she has filed the suit for recovery 'of Stridhan belonging to her and owned by her. Provisions of Section 27 of the Hindu Marriage Act, 1955 does not provide the remedy for recovery of property other than the property presented at or about time of marriage belonging to husband and wife therefore, even otherwise independent, suit or claim for recovery of Stridhan was not competent in the divorce proceedings. Provisions of Section 27 of the Hindu Marriage Act, 1955 does not provide the remedy for recovery of property other than the property presented at or about time of marriage belonging to husband and wife therefore, even otherwise independent, suit or claim for recovery of Stridhan was not competent in the divorce proceedings. By filing present suit respondent has claimed the return of Stridhan which is maintainable in accordance with Clause (c) of explanation 2 of Clause 1 of Section 7 of the Family Court's Act, 1984 which reads as follows:- "Section 7(1) ...................... (a) ....................... (b) ... ....... ............. Explanation-The suits and proceedings referred to in this subsection are suits and proceedings of the following nature, namely:- (a) ....................... (b) ....................... (c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them; (d) ....................... (e) ....................... (f) ....................... (g) ......................." 16. In the light of aforesaid provisions the Court dealing with the case under Hindu Marriage Act, 1955 was not competent to decide the issue relating to return of Stridhan in terms of Section 27 of the Hindu Marriage Act, 1955. 17. For the foregoing reason, we are of the view that issue relating to return of Stridhan has not been decided by a competent Court prior to filing of the present suit. Issue in the matter before both the Courts were directly and substantially not one and same between the parties. Appellant has not discharged his burden to prove the aforesaid facts by adducing the evidence therefore, Court below has rightly decided the issues No. 2A and B against the appellant and had decreed the suit. Consequently, we do not find any merits in the appeal. Appeal is liable to be dismissed and is hereby dismissed. 18. Parties shall bear their own costs. 19. No order as to costs. Appeal Dismissed.