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2018 DIGILAW 541 (CAL)

Tanushree Banik v. Lovan Tikadar

2018-08-07

SABYASACHI BHATTACHARYYA

body2018
JUDGMENT : Sabyasachi Bhattacharyya, J. The present revisional application has been directed, at the instance of the defendant-wife, against an order whereby the petitioner’s application under Order VII Rule 11 of the Code of Civil Procedure was rejected. It is argued that the present suit, substantially for declaration that the marriage registration was void ab initio and for declaration that there was no matrimonial relationship between the plaintiff and the defendant, was barred by res judicata in view of dismissal of a previous suit for similar reliefs. It is pointed out by learned counsel for the petitioner that the plaint of the present suit admits the factum of dismissal of the previous suit and as such ought to have been rejected at the outset. 2. Controverting such argument, learned counsel for the opposite party argues that the present suit was filed before a Civil Judge (Junior Division) for declaration as to the marriage registration of the parties being void and for declaration that no matrimonial relationship existed between the parties, and for consequential reliefs. On the other hand, it is submitted that the previous suit was filed before a District Judge under Section 12 of the Hindu Marriage Act, 1955, for a declaration that the marriage between the parties was a nullity in terms of the said provision of law. As such, it is argued, the previous suit was of different scope than the present one and the Court which took up the prior suit was not “competent”, as envisaged under Section 11 of the Code of Civil Procedure, due to lack of jurisdiction to grant the reliefs sought in the present proceeding. In such view of the matter, it is submitted that the order of the Trial Court refusing the prayer for rejection of the plaint was perfectly justified. 3. Upon hearing both sides, it is seen that the current suit was filed for the following reliefs: “a. A Decree for Declaration that the Marriage Registration as was held on 19/05/2012 by the Marriage Registrar, Malay Kanti Guha Thakurta through issuance of the Marriage Certificate being No. 265 dated 19/05/2012, is void ab initio. b. A Decree for Declaration that there is no matrimonial relationship by and between the Plaintiff and the Defendant. c. A Decree for Permanent Injunction restraining the Defendant from taking any possession of any property of the Plaintiff in any way or in any manner. b. A Decree for Declaration that there is no matrimonial relationship by and between the Plaintiff and the Defendant. c. A Decree for Permanent Injunction restraining the Defendant from taking any possession of any property of the Plaintiff in any way or in any manner. d. All Costs of the Suit. e. Any other relief or reliefs.” Whereas, the previous suit was filed for the reliefs as quoted below: “i. for that declare that the said purported marriage between the parties dated 28.4.2012 and registration the said marriage on 19.5.12 before the Marriage Registrar Vide Certificate Sl. No. 265 is null and void by a decree of nullity. ii. for such other relief or reliefs as your Honour seem fit and proper.” 4. A cursory glance at the two reliefs might give an erroneous impression that the previous suit was merely one under Section 12 of the Hindu Marriage Act, which contemplates annulment of a voidable marriage by a decree of nullity on the grounds specified in such section. On the other hand, the latter suit apparently sought a declaration that no matrimonial relationship was entered into by the parties at all. However, a plain and meaningful reading of the plaints of both the suits reveal that, despite the difference in the forum chosen to institute those, the tenor and fabric of both the suits were virtually the same. In fact, the bundle of facts comprising the cause of action in both the suits were identical. 5. The basis of the pleadings in the previously decided suit was that the marriage was a ‘pretended’ one, solemnized at the Dwakhineshwar Kali Temple, performing a part of the rituals, like putting vermillion on the forehead of the respondent. It was further pleaded in the previous suit that after the function, the parties went back to their respective residences and subsequently a registration of the marriage took place, apparently by fraud practiced by the present petitioner and her parents. 6. In the present suit, similar facts have been alleged, including the venue (Dwakhineshwar Temple), date (April 28, 2012) and the mode of marriage (putting vermillion on the forehead of the present petitioner). 7. The subsequent chapter of the parties returning back to their respective parental residences and the factum of registration and alleged non-cohabitation between the parties as well as practice of fraud are all common allegations in both the suits. 8. 7. The subsequent chapter of the parties returning back to their respective parental residences and the factum of registration and alleged non-cohabitation between the parties as well as practice of fraud are all common allegations in both the suits. 8. Even the prayer of declaration that the marriage registration between the parties was null and void, is common in both the suits. 9. Hence, it appears that the primary issues involved in both the suits were exactly the same. A glance at the judgment passed in the previous suit, which was referred to in the present plaint, shows that the second issue therein was as follows: “2. Are the petitioner and the respondent legally married husband and wife?” 10. The fifth issue therein was: “5. Is the respondent practice any fraud upon the petitioner?” 11. Such issues are evidently involved in the present suit also, on the face of the pleadings of the plaint. Taking a look at the provisions of Section 11 of the Code of Civil Procedure would be beneficial in this context: “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. – The expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto. Explanation II. – For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court. Explanation III. – The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other. Explanation IV. – Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Explanation IV. – Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Explanation V. – Any relief claimed in the plaint, which is not expressly granted by the decree, shall for the purposes of this section, be deemed to have been refused. Explanation VI. – Where persons litigate bona fide in respect of public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating. Explanation VII. – The provisions of this section shall apply to a proceeding for the execution of a decree and references in this section to any suit, issue or former suit shall be construed as references, respectively, to a proceedings for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree. Explanation VIII. – An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in as subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.” 12. It is seen that the criteria stipulated in Section 11 are exactly applicable to the present suit. The matter directly and substantially in issue in the present suit has been directly and substantially in issue in the former suit between the same parties and the Court deciding the previous suit, being higher up in the hierarchy of Courts, was competent to try the subsequent suit also. 13. Although the Hindu Marriage Act, 1955 contemplates that a suit under the said statute has to be filed before a District Judge, the converse is not true. The second suit in the present context, for declaration that there was no marriage between the parties, could technically be filed before the District Judge also. 13. Although the Hindu Marriage Act, 1955 contemplates that a suit under the said statute has to be filed before a District Judge, the converse is not true. The second suit in the present context, for declaration that there was no marriage between the parties, could technically be filed before the District Judge also. Section 15 of the Code of Civil Procedure, which mandates every suit to be instituted in the Court of the lowest grade competent to try it, does not strictly prevent the second suit from being filed before a District Judge, since the said suit, by its very nature, is incapable of valuation (although the same has been valued at Rs. 200/- by the plaintiff/opposite party). Since the subject matter involved is neither immovable nor movable property, the fetter implicit in Section 15 of the Code of Civil Procedure could not be an absolute bar to a District Judge or, for that matter, an Additional District Judge to try such a suit. 14. As such, although there might be difference in forum of institution and certain subtle differences in the reliefs claimed, the Court, while adjudicating an application for rejection of plaint, ought to pierce the veil of pseudo differences and find out the actual identity between the two suits. 15. In view of the above discussion, it is evident that the second suit is almost a replica of the first, which was decided on merits, and thus ought to be nipped in the bud. 16. As such, the Trial Court refused to exercise jurisdiction vested in it by law in rejecting the application filed by the defendant/petitioner under Order VII Rule 11 of the Code of Civil Procedure. 17. Accordingly, C.O. No. 2205 of 2018 is allowed on contest, thereby setting aside the impugned order dated May 16, 2018 passed by the Civil Judge (Junior Division), Fourth Court at Sealdah, District: North 24 Parganas in Title Suit No. 130 of 2017 and rejecting the plaint of the said suit. 18. There will be no order as to costs.