The distinction between an award and a decree, and the implications of Section 21 of the Act, 1987 and Order 23 Rule 4 of C.P.C. in relation to the maintainability of a repeat application under Section 9 of the Hindu Marriage Act, 1955.

JUDGMENT

Rajendra Chandra Singh Samant, J. - This petition has been brought praying for invoking power under Article 227 of the Constitution of India for quashing order dated 23.10.2019 (Annexure P/1) passed by Additional Principal Judge, Family Court, Bilaspur, District- Bilaspur (C.G.) in Civil Suit No. 285A/2019.

2. Learned counsel for the petitioner submits that earlier the respondent had filed a civil suit under Section 9 of the Hindu Marriage Act, 1955 (for short "the Act, 1955") which was registered as Civil Suit No. 258A/2017. During pendency of that case, matter was placed before National Lok Adalat on 08.12.2018 and as the respondent/ applicant did not want to press on the proceeding of that case, therefore, the case was disposed of by the order passed on the same date.

3. In the present case, the respondent has filed a repeat application under Section 9 of the the Act, 1955 on 01.05.2019 which is present Civil Suit No. 258A/2017. The petitioner moved an application under Order 7 Rule 11 read with Section 23 Rule 4 of the C.P.C. challenging the maintainability of the civil suit, on the ground that the same prayer in the previous application filed by the respondent, has been disposed of by award dated 08.12.2018.

4. It is further submitted that Order 23 Rule 4 of C.P.C. specifically provides about abandonment of a suit under sub-rule 1 without permission of Court. As per sub-rule 4, the plaintiff shall be precluded from instituting any fresh suit with respect to such subject matter. Therefore, second suit filed by the respondent under Section 9 of the Act, 1955 was not maintainable. The learned Family Court without appreciating the facts and law, has passed the impugned order and dismissed the prayer made by the petitioner.

5. It is further submitted that Section 21 of the Legal Services Authorities Act, 1987 (for short "the Act, 1987") provides that any award passed in the Lok Adalat shall be final and binding on all the parties to the dispute and no appeal shall lie to any court against the award, therefore, order dated 08.12.2018 had finality and the repeat application filed under Section 9 of the Act, 1955 is not sustainable, therefore, it is prayed that the impugned order is erroneous, which may be quashed.

6. Learned counsel for the respondent opposes the submission made by the petitioner and submits that during pendency of earlier Civil Suit No. 258A/2017, compromise had taken place between the respondent and the applicant, out of the Court. Because of which, the respondent made submission before the Lok Adalat for simple withdrawal of the case and on that basis, the order was passed. As the petitioner, wife of the respondent, did not honour the out of court compromise, therefore, the respondent was compelled to file application under Section 9 of the Act, 1955 again, which is the application in the present suit.

7. It is further submitted that the order dated 08.12.2018 passed in the civil suit was not an award. Section 21 of the Act, 1987 provides for award of Lok Adalat and if any award is made by Lok Adalat, that shall be final and binding on the parties and no appeal shall lie to any court against that award. This order was not passed on compromise, that had taken place between the parties. The case was simply withdrawn for the reason that the respondent/ plaintiff of the suit had made a statement, that he does not want to press on the suit, therefore, it was simple withdrawal. This order also does not fall in category of decree, which has been defined under Section 2 sub-section 2 of the C.P.C. The controversy between the parties was not settled by the order dated 08.12.2018, therefore, it was neither an award nor a decree.

8. Placing reliance the judgment of this Court in Second Appeal No. 233/2014 decided on 03.10.2016 in the matter of Dr. Somesh Pandeya & others Vs. Viseshwawr Prasad Pandeya, it is submitted that principle of res judicata can apply only when the issue of lis between the parties, has bee