Back
IN THE HIGH COURT OF JUDICATURE AT PATNA
ASHWANI KUMAR SINGH, J.
Smt. Priyanka Srivastava (Female) – Petitioner
Versus
Bipin Bihari Lal – Respondent
Civil Miscellaneous Jurisdiction No.207 of 2019
Decided On : 11-04-2019
For the Petitioner:Mr. Arun Kumar Singh, Advocate
The main legal point established in the judgment is that for res judicata to apply, the matter directly and substantially in issue must have been heard and finally decided by the court in the former suit.
Headnote:
Res Judicata - Guardianship Case - Code of Civil Procedure (CPC) Section 11 - Guardians and Wards Act, 1890 Section 25 - The court discussed the application of Section 11 of the CPC and the definition of 'guardian' and 'ward' under the Guardians and Wards Act, 1890. It highlighted the essential ingredients for the doctrine of res judicata and emphasized that the subsequent suit was not barred by res judicata as the issues raised had not been decided in the previous proceeding.
Fact of the Case:
The petitioner sought to set aside an order rejecting a petition filed under Order 7 Rule 11 and Section 11 of the CPC in a guardianship case. The petitioner argued that the guardianship case was barred under Section 11 of the CPC due to a previous proceeding before the Allahabad High Court.
Finding of the Court:
The court found that the subsequent suit was not barred by res judicata as the issues raised had not been decided in the previous proceeding. The court concluded that the order rejecting the petitioner's application was neither without jurisdiction nor perverse.
Issues: The main issue was whether the guardianship case was barred under Section 11 of the CPC due to a previous proceeding before the Allahabad High Court.
Ratio Decidendi: The court held that for res judicata to apply, the matter directly and substantially in issue must have been heard and finally decided by the court in the former suit. As the issues raised had not been decided in the previous proceeding, the subsequent suit was not barred by res judicata.
Final Decision: The application was dismissed, and the court found no merit in the petitioner's claim.
Heard learned counsel for the petitioner.
2. This application under Article 227 of the Constitution of India has been filed by the petitioner for setting aside the order dated 13.02.2018 passed by the learned Principal Judge, Family Court, Rohtas in Guardianship Case No.01 of 2014 whereby he has rejected the petition dated 07.10.2015 filed under Order 7 Rule 11 and Section 11 of the Code of Civil Procedure (for short ‘CPC’).
3. Learned counsel for the petitioner has submitted that the order impugned is perverse. The court below failed to appreciate that the guardianship case filed by the respondent was barred under Section 11 of the CPC. Having regard to Section 11 of the CPC, the court below ought to have rejected the plaint at the threshold, as the matter had already been decided in a proceeding by the Hon’ble Allahabad High Court. He has contended that the respondent ought not to have been allowed to re-agitate the matter again and again by abusing the process of law.
4. At this stage, it would be apt to take brief note of the facts of the case. The petitioner was married to respondent in December, 2003. From the said wedlock, a male child was born on 30.11.2004. Subsequently, since there was matrimonial discord and incompatibility, the petitioner filed a case, inter alia, under Section 498 A of the Indian Penal Code against the respondent. She also filed Maintenance Case No. 25 of 2009 under Section 125 of the Code of Criminal Procedure at Sasaram. The respondent filed a Writ Petition No.14722 of 2010 before the Allahabad High Court. The said writ petition was dismissed vide order dated 22.03.2010. The operative part of the order dated 22.03.2010 is extracted here-in-below:-
“The petitioner no.2, corpus, aged about 5 years, son of the petitioner no.1 is in the custody of the respondent no.4, who is mother of the child and it cannot be said that child is under illegal detention.
Accordingly, the petition lacks merit and is dismissed.
However, it is open for the petitioner no. 1 to approach forum for the relief as claimed in this petition, if so advised.”
Thereafter, the respondent filed Guardianship Case No. 1 of 2014 in the court of Principal Judge, Family Court, Rohtas at Sasaram seeking custody of the minor Yash Shrivastava. The petitioner filed an application under Order 7 Rule 11 and Section 11 of the CPC and prayed to reject the plaint of Guardianship Case No. 1 of 2014 on the ground that the suit is hit by the principle of res judicata. Having heard learned counsel for the parties, the learned Principal Judge Family Court, vide impugned order dated 13.02.2018, rejected the application filed by the petitioner.
5. Being aggrieved by the aforesaid order dated 13.02.2018, the instant civil miscellaneous case has been filed before this Court.
6. Section 11 of the CPC reads as under :-
“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.”
7. In order to constitute res judicata, the following ingredients are essential;
(i) there must be two suits-one former suit and the other subsequent suit;
(ii) the matter directly and substantially in issue must be the same either actually or constructively in both the suits;
(iii) the matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the Court in the former suit;
(iv) the parties to the suits or the parties under whom they or any of them claim must be the same in both the suits; and
(v) the Court which decided the former suit must be competent to try the subsequent suit.
8. If these requisites are fulfilled, only then it can be said that th
