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2014 DIGILAW 816 (KAR)

N. Vijay v. Kavitha Kanaparthi

2014-09-16

A.N.VENUGOPALA GOWDA

body2014
Judgment : 1. Petitioner is aggrieved by an order of Family Court, Bangalore, whereby, I.A.No.8 was allowed and the defence raised in paragraph Nos.2 to 6 of the statement of objections was held as barred by principles of res judicata and was struck down. 2. The respondent has filed, on 18.03.2008, M.C. No.811/2008, under S. 13(1)(i)(ia) and (ib) of the Hindu Marriage Act, 1955 (for short 'the Act'), against the petitioner, in the Family Court at Bangalore, to pass a decree of divorce and dissolve the marriage solemnized on 18.11.2002 and registered on 20.11.2002, in the Office of the Sub-Registrar, Gandhinagar, Bangalore. The petitioner being the first respondent in the said case, filed statement of objections on 19.11.2011. Affidavit in lieu of the evidence of respondent was filed and on 19.06.2013, she was partly cross-examined. On 02.09.2013, I.A.No.8 was filed, under S.11 read with S.151 of the Code of Civil Procedure, to strike down the defence raised in paragraph Nos.2 to 6 of the statement of objections filed to the main petition. I.A.No.8 was allowed on 29.10.2013. 3. The petitioner had filed O.S.No.105/2007 against the respondent, in the Family Court at Bangalore. The suit was decreed on 26.02.2008, by declaring the Certificate of Registration of Marriage dated 20.11.2002 issued by the Registrar of Marriage under the Hindu Marriage Act, 1955 as null and void. The respondent having questioned the said decree, in MFA No.8813/2008, the appeal was allowed on 07.06.2011 and the impugned judgment and decree was set aside, on the ground that, as provided under S.12(l)(c) and S.12(a)(i) of the Act, the suit ought to have been filed within one year from the date on which the plaintiff came to know of the alleged fraud and the Family Court having not considered the said provision and also the suit having been filed on 21.07.2007 i.e., more than 6 months after the lapse of the period of one year, was not maintainable. 4. In the affidavit filed in support of the prayer in I.A.No.8, it was stated that the defence filed to M.C.No.811/2008, more particularly paragraph Nos.2 to 6, is substantially identical and similar to the one based on which O.S.No, 105/2007 was filed arid ultimately heard and finally decided in MFA No.8813/2008 and is hit by the doctrine of constructive res judicata and hence the said pleading is liable to be struck down. 5. 5. The Family Court, taking note of the rival contentions and by raising a point for determination, viz., whether the application filed by the petitioner deserves to be allowed? has allowed I.A.No.8, by recording a finding which reads as follows: "Therefore, this issues has already been decided in the earlier suit and the respondent cannot again agitate in respect of the same issue, which is already decided between the parties. Therefore, there are reasonable grounds made out by the petitioner herein and hence my answer to Point No.1 is in the affirmative." 6. Heard Sri M.I. Arun, learned advocate for the petitioner and Sri Chandan, learned advocate for the respondent and perused the writ record. 7. The point for determination is, whether the impugned order is irrational and calls for interference? 8. The petitioner had filed O.S.No.105/2007, on 21.07.2007, The suit was decreed on 26.02.2008. MFA No.8813/2008 filed by the respondent, questioning the decree passed in O.S.No.105/2007 was allowed on 07.06.2011. The respondent filed M.C.No.811/2008 on 18.03.2008. Statement of objections to M.C.No.811/2008 was filed on 19.11.2011. Affidavit in lieu of evidence of respondent was filed on 15.12.2010 and on 12.07.2013, she was cross-examined in part. I.A.No.8 was filed on 02.09.2013 and statement of objections thereto was filed on 16.09.2013 and the impugned order allowing I.A.No.8 was passed on 29.10.2013. 9. Order VI Rule 16 of the Code of Civil Procedure, 1908, empowers the Court to strike out the pleadings. The said provision being relevant is reproduced herein below: "16. Striking out pleadings.- The Court may at any stage of the proceedings order to be struck out or amended any matter in any pleading- (a) which may be unnecessary, scandalous, frivolous or vexatious, or (b) which may tend to prejudice, embarrass or delay the fair trial of the suit, or (c) which is otherwise an abuse of the process of the Court." 10. In SATHI VIJAY KUMAR Vs. In SATHI VIJAY KUMAR Vs. TOTA SINGH AND OTHERS, (2C06) 13 SCC 353, an order passed by the High Court deleting paragraph Nos.11, 12 and 13(a) from the election petition filed by the appellant having been questioned, on the ground that the case does not fall within the ambit of Order VI Rule 16 CPC, Apex Court, firstly, held that the provisions of Order VI Rule 16 are applicable to election petitions and thereafter, by referring to earlier judgments held that "The power to strike out pleadings is extraordinary in nature and must be exercised by the Court sparingly with extreme care, caution and with circumspection". It was held therein as follows: "28. Bare reading of Rule 16 of Order 6 makes it clear that the court may order striking off pleadings in the following circumstances: (a) where such pleading is unnecessary, scandalous, frivolous or vexatious; or (b) where such pleading tends to prejudice, embarrass or delay fair trial of the suit; or (c) where such pleading is otherwise an abuse of the process of the Court. 29. In Halshury's Laws of England, (4th Edn., Vol. 9, Para 38), it has been stated: Certain acts of a lesser nature may also constitute an abuse of process as, for instance, initiating or carrying on proceedings which are wanting in bona fides or which are frivolous, vexatious, or oppressive. In such cases the court has extensive alternative powers to prevent an abuse of its process by striking out or staying proceedings or by prohibiting the taking of further proceedings without leave. Where the court, by exercising its statutory powers, its powers under rules of court, or its inherent jurisdiction, can give an adequate remedy, it will not in general punish the abuse as a contempt of court. On the other hand, where an irregularity or misuse of process amounts to an offence against justice, extending its influence beyond the parties to the action, it may be punished as a contempt." 30. In Supreme Court Practice, 1995, p.344 (Sweet & Maxwell), it has been observed: "This term connotes that the process of the court must be used bona fide and properly and must not be abused. The court will prevent improper use of its machinery and will, in a proper case, summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation.... The court will prevent improper use of its machinery and will, in a proper case, summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation.... The categories of conduct rendering a claim frivolous, vexatious or an abuse of process are not closed but depend on all the relevant circumstances And for this purpose considerations of public policy and the interests of justice may be very material." 33. At the same time, however, it cannot be overlooked that normally a Court cannot direct parties as to how they should prepare their pleadings. If the parties have noc offended the rules of pleadings by making averments or raising arguable issues, the court would not order striking out pleadings. The power to strike out pleadings is extraordinary in nature and must be exercised by the Court sparingly and with extreme care, caution and circumspection (vide Roop Lal Sathi v. Nachhattar Singh Gill, (1982) 3 SCC 487 ; K.K. Modi v. K.N. Modi, (1998) 3 SCC 573 ; United Rank of India v. Naresh Kumar, (1996) 6 SCC 660 ). 34. More than a century back, in Knowles v. Roberts, (1888) 38 Ch D 263, Bowen, L.J. said: "It seems to me that the rule that the Court is not to dictate to parties how they should frame their case, is one that ought always to be preserved sacred. But that rule is, of course, subject to this modification and limitation, that the parties must not offend against the rules of pleading which have been laid down by the law; -and if a party introduces a pleading which is unnecessary, and it tends to prejudice, embarrass and delay the trial of the action, it then becomes a pleading which is beyond his right. It is a recognized principle that a defendant may claim ex debito justitiae to have the plaintiffs claim presented in an intelligible form, so that he may not be embarrassed in meeting if, and the Court ought to be strict even to severity in taking care to prevent pleadings from degenerating into the old oppressive pleadings of the Court of Chancery"." 11. In R.SADAGOPAN VS. K.RAJAIAH, 2009(6) KAR.L.J. 239 (DB), with reference to scope of Rule 16 of Order VI of the Code of Civil Procedure, it was held as follows: "19. In R.SADAGOPAN VS. K.RAJAIAH, 2009(6) KAR.L.J. 239 (DB), with reference to scope of Rule 16 of Order VI of the Code of Civil Procedure, it was held as follows: "19. Rule 16 of Order 6 of the CPC is regarding striking out of pleadings and the same reads as follows.- "16. Striking out pleadings.- The Court may at any stage of the proceedings order to be struck out or amended any matter in any pleading- (a) which may be unnecessary, scandalous, frivolous or vexatious; or (b) which may tend to prejudice, embarrass or delay the fair trial of the suit; or (c) which is otherwise an abuse of the process of the Court". The main object behind the said rule is to ensure that every party to a suit should present his pleading in an intelligible from without causing embarrassment to the opposite party. It could be stated that, the rule also enables the Court concerned, when it notices that, the pleading when unnecessary, scandalous, frivolous or vexatious or tend to prejudice, embarrass or delay the fair trial of the suit or is otherwise an abuse of the process of the Court, to strike out the pleading, so that the administration of justice by the Court is not hampered. 20. Re-litigation on the same issue may or may not be barred as res judicata, but, if the same issue is sought to be re-litigated, it also amounts to an abuse of the process of the Court. Re-litigation on the same issue is an abuse of the process of the Court since it is contrary to justice and public policy for a party to re-litigate on the same issue again and again. A proceedings being filed for a collateral purpose, or a spurious claim being made in litigation may also in a given set of facts, amount to an abuse of the process of the Court. Frivolous or vexatious proceedings may also amount to an abuse of the process of the Court. If multiple proceedings, Maiming the same or incidental reliefs, allegedly arising out of the same or continued cause of action are filed, the same is nothing but an abuse of process of the Court. The Court has the power to stop such proceedings summarily and prevent the time of the public and the Court from being wasted. If multiple proceedings, Maiming the same or incidental reliefs, allegedly arising out of the same or continued cause of action are filed, the same is nothing but an abuse of process of the Court. The Court has the power to stop such proceedings summarily and prevent the time of the public and the Court from being wasted. It is a matter of Court's discretion, whether such proceedings should be stopped or not; which power should be exercised with great circumspection." 12. It is trite that the Court cannot direct or dictate the parties as to what should be their pleadings and how they should prepare their pleadings. If the parties do not violate any statutory provision, they have the freedom to make appropriate averments and raise arguable issues. The court can strike off the pleadings only if it is satisfied that one of the eventualities appearing under Clause (a) to (c) of Rule 16 of Order VI is attracted, since, striking of the pleadings has a serious adverse impact on the right of the party concerned and the power to do so has to be exercised with great care and circumspection. 13. If an issue regarding res judicata has been raised, the same being not a pure question of law and being one which requires trial and decision, the power under Order VI Rule 16 cannot be readily exercised. In ALAMENGADA MUDDAPPA AND OTHERS Vs. ALAMENGADA KUTTAPPA AND OTHERS, ILR 2010 KAR 5179, it was held as follows: "11. Since, res-judicata is a mixed question of fact and law, the same should be proved by producing the copies of pleadings and issues framed in the earlier suit, by the party, which has raised the plea...." 14. Without even noticing the provision under Order VI Rule 16 of CPC or being satisfied that either of the three eventualities under clauses (a) to (c) of Order VI Rule 16 is attracted, the impugned order has been passed. There is arbitrariness and irrationality on the part of the Judge of the Court below, while passing the impugned order. 15. Since I.A.No.8 has not been considered in the correct perspective, by taking note of the provisions of Order VI Rule 16 and S 11 of the CPC and also the settled principles of law, noticed supra, the impugned order calls for interference. 15. Since I.A.No.8 has not been considered in the correct perspective, by taking note of the provisions of Order VI Rule 16 and S 11 of the CPC and also the settled principles of law, noticed supra, the impugned order calls for interference. In the result, the writ petition is allowed and the impugned order is quashed. Since basic issue has not been dealt with by the Family Court, I remit the matter to the Family Court to decide I.A.No.8 afresh, by keeping in view the observations made supra and in accordance with law, with expedition and within a period of one month from the next hearing date of the case. No order as to costs.