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2015 DIGILAW 374 (UTT)

ARVIND KUMAR v. MUKESH

2015-07-29

ALOK SINGH

body2015
JUDGMENT : Hon’ble Alok Singh, J. (Oral) Present petition is filed assailing the order dated 14.05.2015, passed by the Additional Judge, Family Court Roorkee, District Haridwar in Suit No. 20 of 2015, Smt. Mukesh Vs. Arvind Kumar, whereby application moved by the defendant petitioner herein, under Section 10 of the C.P.C. for staying the Suit No. 20 of 2015 till final decision in O.S. No. 119 of 2011 between the same parties was rejected. 2. Brief facts of the present case, inter alia, are that petitioner and respondent are legally married couple; petitioner, herein has filed earlier Suit No. 119 of 2011, Arvind Kumar Vs. Smt. Mukesh for dissolution of marriage under Section 13 of the Hindu Marriage Act, which is pending disposal in the Court of Additional Judge, Family Court Roorkee; during the pendency of Suit No. 119 of 2011, seeking dissolution of marriage, respondent wife, herein, has filed subsequent Suit No. 20 of 2015 for restitution of conjugal rights under Section 9 of the Hindu Marriage Act; in a subsequent suit filed by the wife respondent, herein, for restitution of conjugal rights, husband petitioner, herein has moved application under Section 10 of the C.P.C. for staying the proceedings of subsequent Suit No. 20 of 2015, stating that earlier suit No. 119 of 2011 between the same party is pending disposal and if decree for dissolution of marriage is passed therein, it will act as res judicata in a subsequent suit for restitution of conjugal rights, therefore, subsequent suit should be stayed under Section 10 of the C.P.C.; learned Trial Court, having heard both the parties, was pleased to reject the application so moved by the husband petitioner, herein, vide order dated 14.05.2015; feeling aggrieved, husband petitioner, herein, has invoked supervisory jurisdiction of this Court, under Article 227 of the Constitution of India. 3. I have heard Mr. Nagesh Aggarwal, learned counsel for the petitioner and Mrs. Neetu Singh, learned counsel for wife respondent and have carefully perused the record. 4. 3. I have heard Mr. Nagesh Aggarwal, learned counsel for the petitioner and Mrs. Neetu Singh, learned counsel for wife respondent and have carefully perused the record. 4. Learned counsel for the petitioner has vehemently argued that if earlier suit, being Suit No. 119 of 2011, pending between the parties is decreed by the Trial Court for dissolution of marriage, subsequent suit filed by the wife respondent, herein, being Suit No. 20 of 2015, shall render infructuous and judgment and decree passed in earlier suit No. 119 of 2015, shall act as res judicata in the subsequent suit. 5. Learned counsel for the petitioner further contends that earlier suit for dissolution of marriage is almost matured for final hearing, therefore, subsequent suit for restitution of conjugal rights must be stayed. He has placed reliance on the judgments passed by the Andhra Pradesh High Court in the case of Khandrika Jagadeeshwara Sharma Vs. Kandrika Chayanatha Sharma and another, reported in 2012 (2) Civil Court Cases, 169 as well as judgment of the Calcutta High Court in the case of Biswajit Sharma Vs. Deblina Panja reported in 2010 (2) Civil Court Cases 618. 6. In the case of Khandrika Jagadeeshwara Sharma (Supra), suit No. 849 of 1997 was filed for specific performance of the agreement of sale dated 18.09.1992, however, subsequent Suit No. 1279 of 2004 was filed by the defendant of earlier Suit No. 849 of 1997 for recovery of possession. Second Appeal was pending arising out of the previous suit for specific performance. In that event, the learned Single Judge of the Andhra Pradesh High Court has held that judgment passed in Second Appeal arising out of the previous suit for specific performance shall act as res judicata in a subsequent suit for possession. Therefore, subsequent suit should be stayed. There is no fight about the settled position of law as discussed by the learned Single Judge of Andhra Pradesh High Court. 7. In the case of Biswajit Sharma (Supra), learned Singh Judge of the Calcutta High Court has held that since decree passed in previous suit for divorce shall act as res judicata in subsequent suit for restitution of conjugal rights, therefore, subsequent suit should be stayed. 8. Order IV-A of C.P.C., as applicable in the territory of State of U.P. and Uttarakhand reads as under :- “R.1. Consolidation of suits and proceedings. 8. Order IV-A of C.P.C., as applicable in the territory of State of U.P. and Uttarakhand reads as under :- “R.1. Consolidation of suits and proceedings. – When two or more suits or proceedings are pending in the same Court and the Court is of opinion that it is expedient in the interest of justice, it may by order direct their joint trial, whereupon all such suits and proceedings may be decided upon the evidence in all or any of such suits or proceedings.” 9. As per Order IV-A of the C.P.C. if two or more suits or proceedings are pending in the same Court and the Court is of the opinion that it is expedient in the interest of justice, may direct joint trial of both suits between the same parties involving same property and identical issues. 10. Since Order IV-A of the C.P.C. is not applicable in the State of West Bengal, therefore, judgment passed by the Calcutta High Court cannot be pressed in service in the present case and is liable to be distinguished and is hereby distinguished. 11. In my considered opinion, in view of the provision of Order IV-A of C.P.C., since one of the parties is seeking dissolution of marriage and other party is seeking restitution of conjugal rights, almost identical evidence are involved, therefore, both the suit should be tried jointly. Therefore, I direct that Suit No. 119 of 2011, filed by the petitioner, herein, and Suit No. 20 of 2015, filed by the respondent, herein, pending in the Court of Additional Judge, Family Court Roorkee, Haridwar shall be tried jointly and stand consolidated. 12. Writ Petition stands disposed of accordingly.