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2023 DIGILAW 1265 (AP)

Gala Ganesh v. S. Geetha

2023-09-06

RAVI NATH TILHARI

body2023
JUDGMENT RAVI NATH TILHARI, J. - Heard Sri Rahul, learned counsel, representing Smt.S.Pranathi, learned counsel for the Petitioner. 2. This Civil Revision Petition under Article 227 of Constitution of India has been filed to set aside the order dtd. 24/7/2023 passed by the Principal Senior Civil Judge, Tirupathi in an unnumbered H.M.O.P. No.(having C.F.R.No.3140 of 2023). 3. The Registry of this Court returned the C.R.P.(SR) with the following objection:- " Please clarify and state as to how this CRPSR is entertainable filed under Article 227 of Constitution of India against the order dtd. 24/7/2023 passed in C.F.R.No.3140/2023 in unnumbered HMOP on this file of the Principal Senior Civil Judge, Tirupati. And the said C.F.R. No.3146/2022 was filed and rejected by the lower Court which is a deemed decree against which CMA may lies." 4. Learned counsel for the petitioner has re-presented the CRP(SR) with the following endorsement:- " A civil miscellaneous appeal under Sec. 28 of the Hindu Marriage Act, 1955 can only be preferred against a Decree made in accordance with the provisions of Hindu Marriage Act, 1955. The order dtd. 24/7/2023 by the learned PSCJ, Tirupati is passed at the stage of numbering of the application and there is no formal adjudication deciding the rights of the parties. Hence, such an order can neither be treated as "decree" as defined in Sec. 2(2) of the Civil Procedure Code, 1908, nor will it become a deemed decree. The learned PSC, J Tirupati erroneously exercised power not vested with it and also refused to exercise the power vested it. It is a parent/flagrant error in procedure and is in violation of principles of natural justice. Hence a revision petition under Article 227 of the Constitution of India, 1950 as well as under Sec. 115 of the code of Civil Procedure, 1908 is maintainable. If the above clarification is not satisfactory, kindly post for orders of the court. Hence objection complied." 5. The matter has been placed before the Court "for orders". 6. The objection to the office report, is on the ground that the impugned order dtd. 24/7/2023, is not decree. The Appeal under Sec. 28 of the Hindu Marriage Act, 1955 is not maintainable. Only petition under Article 227 of the Constitution of India is maintainable. 7. The order impugned is a judicial order passed by learned Principle Senior Civil Judge, Tirupathi. 24/7/2023, is not decree. The Appeal under Sec. 28 of the Hindu Marriage Act, 1955 is not maintainable. Only petition under Article 227 of the Constitution of India is maintainable. 7. The order impugned is a judicial order passed by learned Principle Senior Civil Judge, Tirupathi. This may or may not be decree, in the sense of determination or adjudication of the grounds on which the petitioner sought divorce against the respondent. This will still be an order. Sec. 28 of Hindu Marriage Act provides for appeal against the decree and order both. 8. However, the alternative remedy is not an absolute bar to the entertainability of the petition under Article 227 of the Constitution of India. The jurisdiction under Article 227 is supervisory. The petition is being entertained. 9. The Registry of this Court shall allot a number to this petition. 10. Heard learned counsel for the petitioner on the merits of the matter. 11. The petitioner, the husband of the respondent, filed H.M.O.P.No.50 of 2018, in the Court of the Principal Senior Civil Judge, Tirupathi, seeking divorce on the grounds of cruelty under Sec. 13(1)(ia) and desertion under Sec. 13(1)(ib) of Hindu Marriage Act, 1955. 12. Learned Principal Senior Civil Judge framed points 1 and 2 for determination to the effect, whether the petitioner was subjected to cruelty and whether he was willfully deserted by the respondent. Findings were recorded that the essential ingredients of Ss. 13(1)(ia) and 13(1)(ib) of Hindu Marriage Act, 1955 were absent. On point No.3, it was recorded that there was a chance for reunion. Consequently, the H.M.O.P. was dismissed on 18/10/2022. 13. The petitioner filed another H.M.O.P. (C.F.R.No.3140 of 2023) on 13/6/2023, on the same grounds under Ss. 13(1)(ia) and 13(1)(ib) of Hindu Marriage Act, 1955. 14. The learned Principal Senior Civil Judge, Tirupathi, by the impugned order dtd. 24/7/2023, at the stage of numbering itself rejected the petition, as not maintainable in view of the dismissal of earlier H.M.O.P.No.50 of 2018 on merits. 15. Challenging the order dtd. 24/7/2023, learned counsel for the petitioner submits that there was fresh cause of action to maintain the H.M.O.P., which was maintainable, notwithstanding dismissal of the earlier H.M.O.P.No.50 of 2018. 24/7/2023, at the stage of numbering itself rejected the petition, as not maintainable in view of the dismissal of earlier H.M.O.P.No.50 of 2018 on merits. 15. Challenging the order dtd. 24/7/2023, learned counsel for the petitioner submits that there was fresh cause of action to maintain the H.M.O.P., which was maintainable, notwithstanding dismissal of the earlier H.M.O.P.No.50 of 2018. He submits that the earlier dismissal was not on merits, but, in view of the undertaking given by the petitioner(P.W.1 therein), that he would take complete responsibility of the respondent and no harm or no problem would be caused to her. He submits that after the earlier dismissal, the petitioner searched twice for a residential house to settle with the respondent and intimated her, but he received no reply. So, the petitioner sent a legal notice on 25/2/2023, calling upon the respondent to accompany the petitioner to which also there was no response. He submits that, thus there was fresh cause of action to maintain the new H.M.O.P even on the same grounds. 16. Learned counsel for the petitioner places reliance in Sunil Kumar vs. Prasobha Devi D. and Another, 2019 SCC Online Ker 838. in the case of C.R.P.No.3753 of 2019 decided on 10/1/2023 of the High Court of Madras, in Parkash Chand Gupta vs. Smt.Kamla Gupta, 1978 SCC Online Del 35. and in Sumitra Devi vs. Gauri Shankar, 2019 SCC Online Utt 1692. in support of his contention that, when there is a fresh cause of action in different sets of facts, the petition for divorce on the same grounds would be maintainable and there would be no question of res judicata. 17. Learned counsel for the petitioner further submits that the applicability of the principles of res judicata, could not be decided at this stage of numbering. It required pleading and applying the law at the stage of trial. The rule of res judicata does not strike at the jurisdiction of the court in trying subsequent suit. He has placed reliance in the case of Smt.V.Rajeshwari Vs. T.C.Saravanabava, (2004) 1 SCC 551 . 18. I have considered the submissions advanced and perused the material on record. 19. The grounds of divorce in the second H.M.O.P., admittedly, are the same as were in the earlier, H.M.O.P.No.50 of 2018, i.e., under Sec. 13(1)(ia) and 13(1)(ib). The earlier H.M.O.P was dismissed on merits. T.C.Saravanabava, (2004) 1 SCC 551 . 18. I have considered the submissions advanced and perused the material on record. 19. The grounds of divorce in the second H.M.O.P., admittedly, are the same as were in the earlier, H.M.O.P.No.50 of 2018, i.e., under Sec. 13(1)(ia) and 13(1)(ib). The earlier H.M.O.P was dismissed on merits. The learned trial Court recorded specific finding that the ingredients of Ss. 13(1)(ia) and 13(1)(ib) were absent. The submission of the learned counsel for the petitioner that the earlier H.M.O.P was not rejected on merits, is not correct. The relevant part of the order dtd. 18/10/2022 in para No.15, thereof reads as follows: ".......... And the essential ingredients of Sec. 13(1)(ia) and 13(1)(ib) of Hindu Marriage Act, 1955 are absent in this case and this marriage of the spouses would not be dissolved based on small misunderstandings which are common in every family. I find the points 1 and 2 are in the negative." 20. There is no dispute on the proposition of law as laid down by the different High Courts in Sunil Kumar vs. Prasobha Devi D. and Another, in the case of C.R.P.No.3753 of 2019 decided on 10/1/2023 of the High Court of Madras, in Parkash Chand Gupta vs. Smt.Kamla Gupta and in Sumitra Devi vs. Gauri Shankarn (supra), that on different or fresh cause of action, the second petition for divorce on the same grounds can be maintained. 21. But, here, the question is whether on the ground of desertion, the second petition can be maintained within a period of two years from the date of dismissal of the first petition i.e., 18/10/2022 in which the petitioner failed to prove desertion. 22. The second H.M.O.P. was filed on 13/6/2023. The earlier one was dismissed on 18/10/2022. Thus, the second H.M.O.P. was filed within a period of eight months from the dismissal of the first. 23. As per Sec. 13(1) (ib), to maintain a petition for divorce there would be two years continuous desertion. 22. The second H.M.O.P. was filed on 13/6/2023. The earlier one was dismissed on 18/10/2022. Thus, the second H.M.O.P. was filed within a period of eight months from the dismissal of the first. 23. As per Sec. 13(1) (ib), to maintain a petition for divorce there would be two years continuous desertion. Sec. 13(1) (ib) reads as under:- "Sec. 13(1) in The Hindu Marriage Act, 1955 (1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party - [(i) has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or] [(ia) has, after the solemnisation of the marriage, treated the petitioner with cruelty; or [(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or................. Explanation. -- In this sub-sec., the expression desertion" means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly." 24. In view of Sec. 13(1)(ib), desertion would be a ground, when the respondent deserted the petitioner for a continuous period of not less than two years, immediately preceding the date of presentation of the petition. As stated above, the second H.M.O.P. was filed on 13/6/2023, on which date, the two years continuous desertion is not completed from the date of dismissal of the first H.M.O.P. i.e., 18/12/2022. 25. When confronted on the above aspect, learned counsel for the petitioner submits that the desertion is continuing for last more than nine years. He is thus counting that period also which was stated in the earlier H.M.O.P.No.50 of 2018, towards desertion including the pendency period of H.M.O.P. Consequently, in his submission the period of desertion is more than two years. This Court is not convinced. Firstly, the petitioner's plea of desertion in first H.M.O.P. failed. So, that period cannot be called as desertion period. This Court is not convinced. Firstly, the petitioner's plea of desertion in first H.M.O.P. failed. So, that period cannot be called as desertion period. There would be then no continuous desertion, for the purpose of the present H.M.O.P. Secondly, that period as involved in the first H.M.O.P cannot be the fresh cause of action. 26. Even if, the second petition is considered as based on new set of facts that the petitioner searched twice for residential houses but respondent did not respond, unless there is period of 2 years continuous desertion from the date of fresh cause of action, the second petition could not be maintained. 27. In Sunil Kumar vs. Prasobha Devi D(supra), the High Court of Kerala held as under:- "12. So far as grounds for dissolution in matrimonial matters are concerned, they are of continuing or recurring nature. A spouse who suffered dismissal of original petition for dissolution of marriage on the ground of cruelty, desertion and adultery is not precluded from suing again for dissolution on the same grounds, provided the relief is founded on new facts. Cause of action means a bundle of facts constituting the right of a party which he has to establish in order to obtain a relief from a court. The facts which constitute the grounds of cruelty, desertion or adultery as the case may be, are likely to vary giving rise to different causes of action depending on the facts and circumstances of each case. When cause of action is of continuing and recurring nature, the subsequent litigation for divorce brought on same grounds disregarding the dismissal of former O.P. will not be barred by res judicata. 13. Cause of action founded on acts of cruelty and desertion cannot be said to be always fixed or stable, preventing it from being a fresh ground for dissolution of the marriage. If incidents giving rise to cruelty and desertion are different, cause of action will also differ depending on facts and circumstances. Same is the principle when cause of action relates to adultery also. Even assuming that the appellant failed to establish ground of adultery in the former O.P.No.687/2012, nothing precludes the appellant from urging the same ground of adultery in the subsequent O.P. on new set of facts constituting adultery." 28. Same is the principle when cause of action relates to adultery also. Even assuming that the appellant failed to establish ground of adultery in the former O.P.No.687/2012, nothing precludes the appellant from urging the same ground of adultery in the subsequent O.P. on new set of facts constituting adultery." 28. In Sunil Kumar vs. Prasobha Devi D(supra), the question was of maintainability of second petition for dismissal on the same ground, but the question, if on the same ground of desertion, the second petition would be maintainable within two years for dismissal of the first, was not considered. 29. In C.R.P.No.3753 of 2019 (supra), of the High Court of Madras held as under:- "8. Insofar as the ground of dissolution of matrimonial matters are concerned, they are of continuing or recurring nature. The petition for dissolution of marriage on the ground of cruelty, desertion and adultery is not precluded from suing again for dissolution on the same grounds, provided the relief is founded on new facts. The cause of action means a bundle of facts constituting the right of a party which he has to establish in order to obtain a relief from a Court. The facts which constitute the grounds of cruelty, desertion or adultery as the case may be, are likely to vary giving of cruelty, desertion or adultery as the case may be, are likely to vary giving rise to different causes of action depending on the facts and circumstances of each cases. When cause of action is of continuing and recurring nature, the subsequent litigation of divorce brought on same grounds disregarding the dismissal of former O.P. will not be barred by resjudicata." 30. In the aforesaid case, the first H.M.O.P. was decided sometimes in the year 2006/2007 as the appeal was filed in the year 2007. The second H.M.O.P. was filed in the year 2018. So the question as involved in the present case was also not involved therein. 31. In Parkash Chand Gupta vs. Smt.Kamla Gupta (supra), The High Court of Delhi observed as under:- " 8. Turning now to the other question whether the ground of desertion is barred by constructive res judicata, I find that a more difficult problem is invoked. So the question as involved in the present case was also not involved therein. 31. In Parkash Chand Gupta vs. Smt.Kamla Gupta (supra), The High Court of Delhi observed as under:- " 8. Turning now to the other question whether the ground of desertion is barred by constructive res judicata, I find that a more difficult problem is invoked. Undoubtedly, when the application for judicial separation was moved in the year 1965 desertion could have been made one of the grounds, because then under Sec. 10 of the Hindu Marriage Act, 1955, desertion was a ground for judicial separation. That ground has now been transposed to S. 13 as a result of the amendment of 1976, and has become a ground of divorce. As the wording is exactly the same, it would at first sight seem that the additional District judge has rightly decided that constructive res judicata applies. The wording of the ground as appearing in S. 10(1)(a) of the Act of 1955 and as now appearing in Sec. 13(1)(ib) is: "has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition". Though the ground is the same, it can readily be seen that the period is not the same. The previous petition was presented under Sec. 10 sometime 1965. The present petition has been presented in 1977. The two years previous to the filing of the petition are, therefore, not the same because in the previous case, the petitioner had to establish desertion from 1963 to 1965 and now it is sufficient to prove desertion from 1975 to 1977. The periods being different, the causes of action are also different. However, it is urged on behalf of the wife by Mr. Harnam Dass, her learned counsel that the case of husband is that the desertion has continued without interruption from 1963 onwards, and hence, really the cause of action is the same. I cannot accept this contention, attractive though it may be. It may be that a husband or wife does not move for desertion at a given stage of time or does not think that it is much of a ground, but later on he or she may be in a better position to establish the same. I do not think that res Judicata is available in such cases at all. It may be that a husband or wife does not move for desertion at a given stage of time or does not think that it is much of a ground, but later on he or she may be in a better position to establish the same. I do not think that res Judicata is available in such cases at all. For instance, if a landlord sues his tenant for rent, the mere fact that he did not sue for rent for an earlier period will not operate as constructive res judicata. In my view, if there is desertion, each day of desertion or at least each period of two years of desertion gives a separate cause of action. All that the petitioner has to prove is that there was desertion for a period of two years immediately before the date of the filing of the petition. The Court is not concerned with an earlier period. Even if there was desertion for several years followed by a period of resumption of conjugal relationship, the earlier period of desertion would not be taken into consideration. In my view, the court is only concerned with the last two years and with no other period. If desertion is established for the last two years then this ground will have been established. In this context; it is also necessary to recall that the term desertion appearing in S. 10 of the original Act and now appearing in Sec. 13 is defined by an explanation which says that desertion means desertion without reasonable cause and without consent or the wish of the other party and includes willful neglect of the petitioner. In order to apply this explanation to the two periods now under consideration, it may be that for the period 1963- 65, the wife had reasonable cause or had the consent etc. of her husband. The question whether she had reasonable cause or consent etc., for the period 1975 to 1977 is altogether a different question. Reasonable cause can vary from time to time. As I have already said, marriage is a living relationship in which various factors may alter from time to time. Hence, if at any given time desertion may not be actionable, it may be actionable at some other time dependent on the application of the explanation appended to the Sec. . Reasonable cause can vary from time to time. As I have already said, marriage is a living relationship in which various factors may alter from time to time. Hence, if at any given time desertion may not be actionable, it may be actionable at some other time dependent on the application of the explanation appended to the Sec. . I cannot possibly come to the view that merely because desertion has not been acted upon or has been condoned for a given period, it will never become actionable in future. I would, therefore, come to the conclusion that in spite of the language being the same and in spite of the apparent cause of action being the same, the real question to be taken into consideration is the reasons for the desertion-and the reasonableness of the parties' conduct and other factors which are relevant when the question of marital relationship is in question. There can be no constructive res judicata in a case of this type. I, therefore, come to the conclusion that the principle of res judicata is not applicable in a case of desertion. I would accordingly reverse the decision of the Additional District judge on this part of the issue. I would thus decide that the petition is not barred by res judicata an either of the two grounds. Civil Revn.No.533 of 1977 and C.R.No.718 of 1977 would stand decided accordingly. I would leave the parties to bear their own costs." 32. The judgment in Parkash Chand Gupta vs. Smt.Kamla Gupta (supra), is of no help to the petitioner. In the present case, there is no question of applying res judicata or constructive res judicata at this stage. There is also no question of taking into consideration the previous alleged desertion, and alleged fresh one, because in the earlier proceedings the plea of desertion failed and the present desertion period is not for the statutory period to maintain the petition. 33. In Sumitra Devi vs. Gauri Shankar (supra), the first petition for divorce on the ground of desertion was dismissed in 2005. The second petition was filed in the year 2012 on the ground of desertion. The same was dismissed on 19/12/2013. The third was filed in the year 2018 again on the ground of desertion but was withdrawn with a liberty to file fresh. The second petition was filed in the year 2012 on the ground of desertion. The same was dismissed on 19/12/2013. The third was filed in the year 2018 again on the ground of desertion but was withdrawn with a liberty to file fresh. The fourth petition was filed giving rise to fresh cause of action after 2013. Thus there was gap of two years from the earlier petition for divorce on the ground of desertion. The High Court of Uttarakhand observed that the period of desertion was different from the period in the earlier petitions. In the present case, though the period may be different, may be under new set of facts but such period from the date of dismissal of the earlier petition, is not of statutory duration of not less than two continuous years. 34. In Katari Subba Rao vs. Katari Seetha Mahalakshmi, AIR 1994 AP 364 . the division bench of this Court held that to sustain the plea of desertion a continuous period of two years of separation between the spouses is necessary before presentation of the petition for divorce. The previous periods before present separation wherein desertion took place cannot enure to the benefit of any party. The relevant part in paragraph No.4 of the above judgment is held as under:- "...To sustain the plea of desertion a continuous period of two years of separation between the spouses is necessary before presentation of the petition for divorce. The previous periods before present separation wherein desertion took place cannot enure to the benefit of any party. The continuous period of separate living is a 'must' to entertain the ground of desertion. So the plea of desertion raised by the husband cannot be sustained..." 35. There is no dispute on the proposition of law that the plea of res judicata does not strike at the root of the jurisdiction of the court trying the subsequent, proceeding and the plea of res judicata, has to be raised, laying the foundation in the pleadings and then an issue must be framed and tried based on evidence. 36. In Smt.V.Rajeshwari Vs. T.C.Saravanabava(supra), the Hon'ble Supreme Court held as under:- "11. The rule of res judicata does not strike at the root of the jurisdiction of the court trying the subsequent suit. 36. In Smt.V.Rajeshwari Vs. T.C.Saravanabava(supra), the Hon'ble Supreme Court held as under:- "11. The rule of res judicata does not strike at the root of the jurisdiction of the court trying the subsequent suit. It is a rule of estoppel by judgment based on the public policy that there should be a finality to litigation and no one should be vexed twice for the same cause. 12. The plea of res judicata is founded on proof of certain facts and then by applying the law to the facts so found. It is, therefore, necessary that the foundation for the plea must be laid in the pleadings and then an issue must be framed and tried. A plea not properly raised in the pleadings or in issues at the stage of the trial, would not be permitted to be raised for the first time at the stage of appeal (See: (Raja) Jagadish Chandra Deo Dhabal Deb Vs. Gour Hari Mahato and Ors. [AIR 1936 PrivyCouncil 258], Medapati Surayya and Ors. Vs. Tondapu Bala Gangadhara Ramakrishna Reddi and Ors.[AIR 1948 Privy Council 3], Katragadda China Anjaneyulu and Anr. Vs. Kattragadda China Ramayya &Ors. [ AIR 1965 A.P. 177 Full Bench]. The view taken by the Privy Council was cited with approval before this Court in The State of Punjab Vs. Bua Das Kaushal (1970) 3 SCC 656 . However, an exception was carved out by this Court and the plea was permitted to be raised, though not taken in the pleadings nor covered by any issue, because the necessary facts were present to the mind of the parties and were gone into by the Trial Court. The opposite party had ample opportunity of leading the evidence in rebuttal of the plea. The Court concluded that the point of res judicata had throughout been in consideration and discussion and so the want of pleadings or plea of waiver of resjudicata cannot be allowed to be urged. 13. Not only the plea has to be taken, it has to be substantiated by producing the copies of the pleadings, issues and judgment in the previous case. May be in a given case only copy of judgment in previoussuit is filed in proof of plea of res judicata and the judgment contains exhaustive or in requisite details the statement of pleadings and the issues which may be taken as enough proof. May be in a given case only copy of judgment in previoussuit is filed in proof of plea of res judicata and the judgment contains exhaustive or in requisite details the statement of pleadings and the issues which may be taken as enough proof. But as pointed out in Syed Mohd. Salie Labbai (Dead) By Lrs. and Ors. Vs. Mohd. Hanifa (Dead) by Lrs. &Ors. [ (1976) 4 SCC 780 ], the basic method to decide the question of res judicata is first to determine the case of the parties as put forward in their respective pleadings of their previous suit and then tofind out as to what had been decided by the judgment which operates as res judicata. It is risky to speculate about the pleadings merely by a summary of recitals of the allegations made in thepleadings mentioned in the judgment. The Constitution Bench in Gurbux Singh Vs. Bhooralal [ (1964) 7 SCR 831 ], placing on a par the plea of res judicata and the plea of estoppel under Order II Rule 2 of the Code of Civil Procedure, held that proof of the plaint in the previous suit which is set to create the bar, ought to be brought on record. The plea is basically founded on the identity of the cause of action in the two suits and, therefore, it is necessary for the defence which raises the bar to establish the cause of action in the previous suit. Such pleas cannot be left to be determined by mere speculation or inferring by a process of deduction what were the facts stated in the previous pleadings. Their Lordships of the Privy Council in Kali Krishna Tagore Vs. Secretary of State For India in Council and Anr. [(1887-88) 15 Indian Appeals 186], pointed out that the plea of res judicata cannot be determined without ascertaining what were the matters in issues in the previous suit and what was heard and decided. Needless to say these can be found out only by looking into the pleadings, the issues and the judgment in the previous suit. 14. That apart the plea, depending on the facts of a given case, is capable of being waived, if not properly raised at an appropriate stage and in an appropriate manner. Needless to say these can be found out only by looking into the pleadings, the issues and the judgment in the previous suit. 14. That apart the plea, depending on the facts of a given case, is capable of being waived, if not properly raised at an appropriate stage and in an appropriate manner. The party adversely affected by the plea of res judicata may proceed on an assumption that his opponent had waived the plea by his failure to raise the same. Reference may be had to Pritam Kaur w/o S. Mukand Singh Vs. State of Pepsu and Ors. [ AIR 1963 Punjab 9 (Full Bench)] and Rajani Kumar Mitra and Ors. Vs. Ajmaddin Bhuiya [AIR 1929 Calcutta 163], and we find ourselves in agreement with the view taken therein onthis point). The Privy Council decision in Sha Shivraj Gopalji Vs. Edappakath Ayissa Bi and Ors. [ AIR 1949 Privy Council 302], appears to have taken a different view but that is not so. The plea of res judicata was raised in the Trial Court, however, it was not pressed but it was sought to be reiterated at the stage of second appeal. Their Lordships held that being a pure plea in law it was available to the appellant for being raised. Their Lordships were also of the opinion that in the facts of that case, apart from the principle of res judicata, it was unfair to renew the same plaint in fresh proceedings. The Privy Council decision is distinguishable." 37. This Court is of the considered view, that, in view of the admitted fact and the position of law, there is no question of numbering the petition, then inviting the pleadings, the evidence and to undertake the trial, when on the face of it, the H.M.O.P could not be maintainable within two years, in view of the legal provisions of Sec. 13 (1) (ib) of the Hindu Marriage Act 1955. 38. Here, at this stage, question is not of res judicata but of maintainability on the ground of bar of Sec. 13(1) (ib) of Hindu Marriage Act, 1955. The judgment in Smt.V.Rajeshwari Vs. T.C.Saravanabava (supra) has therefore no application. 39. Learned counsel for the petitioner during arguments submitted that in the second petition ground of cruelty is there, but conceded that the plea of cruelty is because of desertion. The judgment in Smt.V.Rajeshwari Vs. T.C.Saravanabava (supra) has therefore no application. 39. Learned counsel for the petitioner during arguments submitted that in the second petition ground of cruelty is there, but conceded that the plea of cruelty is because of desertion. The cruelty under Sec. 13(1) (ia) as ground of divorce in the present case, cannot, therefore stand independent of 'Desertion'. Once the period of desertion as under Sec. 13(1) (ib) is not continuous for the period of two years preceding the date of presentation of the petition, the petition would not be maintainable even on the ground of cruelty as it is dependent upon the plea of desertion, unless the period of two continuous years is completed. 40. I do not find any illegality in the order of the Principal Senior Civil Judge in rejecting the unnumbered H.M.O.P., at the numbering stage on the ground that it was not maintainable. 41. In the result, the petition under Article 227 of the Constitution of India has got no merit and is dismissed. No costs. Pending interlocutory applications, if any, shall stand closed in consequence.