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KARNATAKA HIGH COURT
A.N. Venugopala Gowda, J.
Vijay N. Petitioner
versus
Mrs. Kavitha Kanaparthi —Respondent
Writ Petition No. 58749/2013 (GM-FC)
Decided on 16.8.2014
For the Petitioner:Sri M.I. Arun, Advocate.
For the Respondent:Ms. Agnus Law, Advocates.
IMPORTANT POINT
When issue of res-judicata has been raised, the power can be exercised under Order 6 Rule 16 only when the issue falls within either of the clauses (a) to (c) of Rule 16.
Headnote:(i) Civil Procedure Code 1908—Section 11 Read with Order 6, Rule 16—Striking off Pleadings—Power can be exercised by the court on satisfaction of the circumstances stated in either of the clause (a) to (c) under Order 6 Rule 16—Issue raised in the written Statement, cannot be strike down merely by saying that it was barred by res-judicata—The court is bound to record reasoned order as to how the said issue was covered under said clauses of Order 6 Rule 16—Order of the trial court set aside.
(ii) Civil Procedure Code 1908—Section 11—Issue relating to res-judicata —It is a mixed question of law and fact and is to be proved by producing copies of pleadings and issues of the earlier suit—This power cannot be exercised readily just by raising plea of res judicata. (Para 13, 14 and 15)
Facts of the Case
The respondent filed petition for divorce under Section 13 of Hindu Marriage Act in the Family Court at Bangalore. The petitioner filed statement of objections and was partly cross examined. Later application filed under Sections 11 and 151 CPC, to strike down the defence raised in the objections. The Family Court observed that the issue having already been decided in the earlier suit the respondent cannot agitate the same again.
Findings of the Court
It has been held that the main object of rule 16 Order 6 is to ensure that every party to a suit presents his pleading without causing embarrassment to the opposite party. The Court cannot be direct or dictate the parties as to what should be their pleadings. The Court can strike off the pleading only if it is satisfied that one of the eventualities, mentioned in clause (a) (c) of rule 16 of Order 6 is attracted. The trial court passed the order even without noticing the provisions under Order 6 Rule 16; therefore, the said order was not sustainable. The case remitted to the Family Court to decide the applications afresh.
Result: Petition allowed.
A.N. Venugopala Gowda, J.—Petitioner is aggrieved by an order of Family Court, Bangalore, whereby, I.A.No.8 was allowed and the defence raised in paragraph Nos.2 to 6 of the statement of objections was held as barred by principles of res judicata and was struck down.
2. The respondent has filed, on 18.03.2008, M.C. No.811/2008, under S.13(1)(i)(ia) and (ib) of the Hindu Marriage Act, 1955 (for short ‘the Act’), against the petitioner, in the Family Court at Bangalore, to pass a decree of divorce and dissolve the marriage solemnized on 18.11.2002 and registered on 20.11.2002, in the Office of the Sub-Registrar, Gandhinagar, Bangalore. The petitioner being the first respondent in the said case, filed statement of objections on 19.11.2011. Affidavit in lieu of the evidence of respondent was filed and on 19.06.2013, she was partly cross-examined. On 02.09.2013, I.A.No.8 was filed, under S.11 read with S.151 of the Code of Civil Procedure, to strike down the defence raised in paragraph Nos.2 to 6 of the statement of objections filed to the main petition. I.A.No.8 was allowed on 29.10.2013.
3. The petitioner had filed O.S.No.105/2007 against the respondent, in the Family Court at Bangalore. The suit was decreed on 26.02.2008, by declaring the Certificate of Registration of Marriage dated 20.11.2002 issued by the Registrar of Marriage under the Hindu Marriage Act, 1955 as null and void. The respondent having questioned the said decree, in MFA No.8813/2008, the appeal was allowed on 07.06.2011 and the impugned judgment and decree was set aside, on the ground that, as provided under S.12(1)(c) and S.12(a)(i) of the Act, the suit ought to have been filed within one year from the date on which the plaintiff came to know of the alleged fraud and the Family Court having not considered the said provision and also the suit having been filed on 21.07.2007 i.e., more than 6 months after the lapse of the period of one year, was not maintainable.
4. In the affidavit filed in support of the prayer in I.A.No.8, it was stated that the defence filed to M.C.No.811/2008, more particularly paragraph Nos.2 to 6, is substantially identical and similar to the one based on which O.S.No.105/2007 was filed and ultimately heard and finally decided in MFA No.8813/2008 and is hit by the doctrine of constructive res judicata and hence the said pleading is liable to be struck down.
5. The Family Court, taking note of the rival contentions and by raising a point for determination, viz., whether the application filed by the petitioner deserves to be allowed? has allowed I.A.No.8, by recording a finding which reads as follows:
“Therefore, this issues has already been decided in the earlier suit and the respondent cannot again agitate in respect of the same issue, which is already decided between the parties. Therefore, there are reasonable grounds made out by the petitioner herein and hence my answer to Point No.1 is in the affirmative.”
6. Heard Sri M.I. Arun, learned advocate for the petitioner and Sri Chandan, learned advocate for the respondent and perused the writ record.
7. The point for determination is, whether the impugned order is irrational and calls for interference?
8. The petitioner had filed O.S.No.105/2007, on 21.07.2007. The suit was decreed on 26.02.2008. MFA No.8813/2008 filed by the respondent, questioning the decree passed in O.S.No.105/2007 was allowed on 07.06.2011. The respondent filed M.C.No.811/2008 on 18.03.2008. Statement of objections to M.C.No.811/2008 was filed on 19.11.2011. Affidavit in lieu of evidence of respondent was filed on 15.12.2010 and on 12.07.2013, she was cross-examined in part. I.A.No.8 was filed on 02.09.2013 and statement of objections thereto was filed on 16.09.2013 and the impugned order allowing I.A.No.8 was passed on 29.10.2013.
9. Order VI Rule 16 of the Code of Civil Procedure, 1908, empowers the Court to strike out the pleadings. The said provision being relevant is reproduced herein below:
“16. Striking
