1948 Present : Howard C. J. and Nagalingam J.
 
FERNANDO, Appellant, and FERNANDO, Respondent.
 
S. C. 284-D. C. Colombo, 814D

    Divorce-Decree nisi entered-Petition by defendant that decree be not made absolute Allegation of adultery-Right of Court to entertain petition-Res judicata-Civil Procedure Code, sections 604 and 207.
 
In a divorce action decree nisi was entered in favour of the plaintiff. Before the decree was made absolute the defendant presented a petition alleging that the plaintiff had been guilty of adultery at the time of the action and praying that the decree nisi in his favour should not be made absolute. The learned Judge, after inquiry, held that the plaintiff had been living in adultery and dismissed his action.
 
Held, that the decree nisi was res judicata between the parties since the plaintiff's adultery could have been put in issue at the trial.
 
Held, further, that the words, " any person " in section 604 of the Civil Procedure Code do not include a party to the suit.

APPEAL from a judgment of the District Judge, Colombo.
 
H. W. Jayewardene, with Sam Wijesinha, for the plaintiff, appellant.
 
E. B. Wikramanayake, for the defendant, respondent.

Cur. adv. vult.

 January 29, 1948. NAGALINGAM J.-
 
The plaintiff appeals from a judgment of the District Judge of Colombo dismissing the action instituted by him for divorce of his wife on the ground of malicious desertion.
 
After trial, the learned Judge entered decree nisi in favour of the plaintiff. Before, however, the decree nisi could have been made absolute, the defendant filed petition alleging that the decree pronounced in plaintiff's favour should not be made absolute. The plaintiff contested the right of the defendant either to present the petition which she had presented or to adduce evidence in support of the allegations contained therein at that stage. The learned Judge overruled the objection and after hearing evidence in regard to the allegation of adultery reversed the decree nisi and dismissed the plaintiff's action, holding it established that the plaintiff had been living in adultery.
 
Before proceeding to consider the questions argued on appeal, it would be satisfactory to set out briefly the salient facts of the case. The parties were married on March 5,1936. The wife returned to her mother's house about three months later, namely, on June 2, 1936, and has ever since lived in separation from the plaintiff. On August 1, 1937, the plaintiff made an application for a Writ of Habeas Corpus for restoration of his wife. At the inquiry the wife alleged that she had found that the husband was keeping a. woman called Alo Nona and. that therefore she was not prepared to go and live with him. The plaintiff appears to have made a second application for a Writ of Habeas Corpus and on that occasion the wife said she was prepared to go with the husband if he provided her with a home which would be shared by nobody else. The husband agreed to do so and his evidence, which has been accepted by the trial Judge, is that after renting out a separate house he went and invited the wife but she refused to accompany him.
 
Thereafter he commenced divorce proceedings. The wife in her answer did not plead that the husband was living in adultery, although it is to be remembered that as early as 1937 in the first Habeas Corpus Application she had made an allegation of adultery against him. No issue in regard to it was raised even ore, tenus at the trial. No application was made for a postponement of the trial to enable such a plea to be raised. The wife, however, in giving evidence expressly stated that she had seen the husband commit adultery with Alo Nona already referred to and that she had heard that the husband was keeping another woman by the name of Gunawathie. She further deposed that she could produce witnesses to prove the fact of the husband living in adultery with

Gunawath