The principle of res judicata applies to subsequent applications for the same relief, especially when the matter has already been decided on merits in earlier litigation.

ORDER :

Heard finally with the consent of both the parties.

In this petition under Article 227 of the Constitution of India, the petitioner has assailed the legality, validity and propriety of the order dated 15.12.2020 (Annexure P/1) passed in Civil Suit No.40-A/2017 by IV Additional District Judge, Rewa, whereby the application under Sections 65 and 67 of the Indian Evidence Act filed by the petitioner seeking a direction to the respondent to medically examine the uterus of the respondent from Sanjay Gandhi Hospital, Rewa and also to call for the Sonography report, has been rejected.

2. Brief facts leading to filing of this case are that the petitioner has filed an application under Section 11 of the Hindu Marriage Act for holding marriage null and void on the ground that the respondent has suppressed the fact that she is not able to deliver a child. Earlier, the petitioner had moved an application under Sections 65 and 67 of the Indian Evidence Act. The aforesaid application came to be decided on 18.07.2016. The Court below rejected the said application on the ground that medical evidence has already been recorded in the matter and therefore, re-examination has no meaning. Being aggrieved by the order dated 18.07.2016, the petitioner filed writ petition No.10076/2017, which came to be dismissed vide order dated 09.10.2017. Thereafter, the petitioner again filed an application under Sections 65 and 67 of the Indian Evidence Act seeking medical examination on the ground that the respondent was medically examined by on Dr. Kalpana Yadav and Sonography was carried out by Dr. Ashutosh Agrawal, who in their reports have stated that the respondent has no uterus. In the circumstances, the respondent may be directed to examine herself from Sanjay Gandhi Hospital, Rewa. The said application was dismissed vide order dated 15.12.2020, which is subject matter of challenge in this writ petition.

3. Learned counsel for the petitioner submitted that the trial court erred in rejecting the application and did not consider the fact that Dr. Kalpana Yadav and Ashutosh Agrawal had examined the respondent medically and found that there is no uterus in her body, therefore, the application ought to have been allowed.

4. On the other hand, Shri Dwivedi, learned counsel for the respondent submitted that this second application is not maintainable as the same is hit by the principles of res judicata. The earlier Writ Petition No.10076/2017 was dismissed on merits by this Court on 09.10.2017, in which this Court has held as under:

“From the perusal of the impugned order, it appears that the order has been passed on 18.07.2016. Similarly the statements of doctors appear to be made in the trial Court on 14.10.2015, two years back. When the petitioner had earlier sufficient opportunity to move appropriate application for further medical examination of the respondent, then while not availing the same, the petitioner has caused sufficient delay and it appears that the present application has been filed by the petitioner just to protract the litigation.”

5. Heard the learned counsel for the parties.

6. Taking into consideration the fact that the medical report is already on record and the respondent has already been examined and the doctors have given a finding to the effect that evidence cannot be collected by conducting re-examination of the respondent and this being a second application under Sections 65 and 67 of the Evidence Act, the same is hit by the principles of res judicata. In the earlier round of litigation, the writ petition was decided on merits; therefore, this Court at this stage cannot interfere again and again in the matter.

Accordingly, the petition being bereft of merits and substance is hereby dismissed.

7. Stay granted on 23.02.2021 is hereby vacated. The trial Court is directed to proceed in the matter and decide the suit as expeditiously as possible.