Nimbewwa vs Prema and Others

Budihal R.B., J.—The appellant herein was the plaintiff before the Trial Court. She filed the suit seeking prayer of declaration that she is entitled to get her name entered as nominee for the deceased Rachappa in his service Register and the public records and also for mandatory injunction to direct defendant Nos. 2 and 3 to effect such entries in the service records of Rachappa. Defendant No. 1 is arrayed on the ground that she is also claiming to be the wife of deceased Rachappa. Defendant No. 2 is the DDPI and defendant No. 3 is Accounts Officer. After service of notice, defendant No. 2 has not contested the suit but defendant No. 1 and defendant No. 3 both contested the suit. It is the contention of the plaintiff that she is legally wedded wife of deceased Rachappa and they have lead the marital life. They were not having the issues and Rachappa started ill-treating the appellant and for that reason she went to her native place and again after intervention of the elders she was brought to the house of deceased Rachappa and during that period in the wedlock a son was born by name Ravi to the appellant through the deceased Rachappa. It is also her contention that again the deceased Rachappa started ill-treating the appellant and again she went to her parental place and filed the Criminal Miscellaneous No. 190/1995 claiming maintenance for herself and her son Ravi as against the Rachappa and in the said proceedings maintenance was granted at the rate of Rs. 500/- to herself and Rs. 400/- to her son Ravi. It is also her contention that subsequently she filed another petition in Criminal Miscellaneous No. 311/2004 seeking enhancement of the said maintenance amount, that was also allowed and maintenance was enhanced at Rs. 2,500/-. The further contention of the appellant that in the year 2003 defendant No. 1 Prema claiming herself as the legally wedded wife of deceased Rachappa filed the suit in O.S. No. 16/2003 seeking declaration of her status as the first wife of Rachappa and also consequential relief of permanent injunction. The said suit was dismissed and Miscellaneous First Appeal was preferred against the dismissal of the said suit in MFA No. 4059/2004 which also came to be dismissed. It is her further contention that in view of the earlier proceedings in Criminal Miscellaneous and granting her maintenance, she has established that she is legally wedded wife of Rachappa.

Defendant No. 1 Prema contested the suit denying all the allegations made by the plaintiff and it is her claim that in fact she is the legally wedded wife of deceased Rachappa and her marriage with Rachappa was solemnized in the year 1965 at Aheri village of Bijapur taluk in accordance with the customs prevailing in their society by observing all the ceremonies and she further contended that in the wedlock she got two daughters and one son from deceased Rachappa. Hence, she claims that she is the legally wedded wife and plaintiff has filed a false suit. It is also her contention that plaintiff earlier filed suit in O.S. No. 6/2006, but the same has been dismissed as it was withdrawn by filing a memo. It is the contention that when the earlier suit was withdrawn without seeking the prior permission of the Court, the second suit is not maintainable as per the provisions of Order 23 Rule 4 of CPC. It is also the contention that the suit filed is also barred by law of limitation. On these counts, defendant No. 1 contested the matter.

So far as defendant No. 3 is concerned, it is stated that they have directed the parties to establish their status in a civil suit and to produce the order to that effect.

On the basis of these pleadings, the Trial Court framed as many as seven issues and ultimately after considering the oral as well as the documentary evidence produced in the case, dismissed the suit with cost. Against the said judgment and order of the Trial Court, the present appeal has been preferred by the appellant-plaintiff on the grounds as contended in the appeal memorandum.

Though the appellant claimed that she is the wife of deceased Rachappa, but looking to her pleadings, nothing has been mentioned about when the marriage was performed, what is the date, month and year of her marriage, the place at which it was performed, who are all the persons who attended the marriage. It is only the bald averment made by the appellant-plaintiff that her marriage with the Rachappa was performed. With regard to her contention that she filed the criminal miscellaneous proceedings which was allowed by the Court and subsequently the same was enhanced in another criminal miscellaneous proceedings and hence because of the said reasons she is the wife of the deceased Rachappa, cannot be accepted, unless she established the said status in the suit by cogent and acceptable material, and as the proceedings under Section 125 of Cr.P.C. are for the limited purpose of claiming maintenance. Perusing the records of the case produced on the side of the appellant-plaintiff, it is true that in the partition deed it is mentioned that Rachappa admitted Ravi as his son. But only on the basis of such entry it cannot be concluded that plaintiff established her status as the wife of deceased Rachappa. Her earlier suit filed in O.S. No. 6/2006 seeking the prayer of declaration was dismissed as withdrawn on the memo filed by her. But it is an admitted fact that she withdrew the said suit without seeking prior permission of the Court. Therefore looking to the observations made by the Trial Court, as per the provisions of Order 23 Rule 4 of CPC that the subsequent suit is not maintainable is the correct observation made by the Trial Court. The reasons assigned by the appellant for withdrawing the earlier suit is that since her husband orally agreed that he will look after her, but subsequently as he has not fulfilled the conditions, again there is a cause of action for her to file a subsequent suit. But to support this contention, the plaintiff has not produced any material which has been observed by the Trial Court in its judgment.

Looking to the defence raised by Prema, she lead her evidence and also examined independent witnesses and all of them deposed that the marriage of defendant No. 1 Prema was performed with Rachappa in the year 1965 at Aheri village. All the three have consistently deposed with regard to their customary rituals followed, according to which the said marriage was performed. The defendant No. 1 produced the birth extract of all the three children which goes to show that the father''s name of the children is mentioned as Rachappa. It is no doubt true that defendant No. 1 Prema also filed suit earlier in O.S. No. 16/2003 seeking a declaration of her status as the wife of Rachappa and in the said suit Rachappa was arrayed as one of the defendants and Nimbewwa (appellant herein) was also arrayed as one of the defendants. But looking to the materials produced in the case, Rachappa filed the written statement in the earlier suit admitting that plaintiff Prema in the said suit is his wife and he has denied that Nimbewwa is his wife. The copies of the written statement are also produced in this appeal. Perusing the materials, the earlier suit of Prema was dismissed not on merits, but only on the issue regarding the limitation point. Therefore, it cannot be said that since the earlier suit of Prema has been dismissed, she is not the legally wedded wife of deceased Rachappa. Regarding the limitation aspect for the present suit is concerned, when in the earlier suit in O.S. No. 16/2003 filed by Prema this Nimbewwa was also arrayed as one of the defendant and her status as the wife of Rachappa has been denied, then the cause of action arose to the present plaintiff (Nimbewwa) to file the suit within a period of three years as per Article 58 of the Limitation Act. Therefore, the Trial Court rightly considered this legal aspect and comes to the conclusion that the present suit filed by the plaintiff is barred by the law of limitation.

Looking to the materials produced on both the sides, the defendant No. 1 Prema was able to establish with satisfactory material that she is the legally wedded wife of Rachappa and her pleadings and the oral evidence of herself and her independent witnesses is consistent to believe the contentions that she has raised in the written statement.

Perusing the materials on the side of the plaintiff, though she is claiming her status as the wife of the deceased Rachappa, there is no proof of the said contention. She has not examined any independent witness to say atleast exactly in which year her marriage was performed, at what place it was performed and the persons who are all have attended her marriage. The Trial Court has rightly observed that the plaintiff in her oral evidence at one breadth has deposed that her marriage was performed at Aheri village and at another breadth has deposed that it was performed at Kannolli village. So on that ground also the Trial Court disbelieved the evidence of appellant herein.

Looking to all these materials on record, the Trial Court extensively considered each and every aspect of the matter, both oral and documentary and rightly comes to the conclusion in dismissing the suit of the appellant-plaintiff We do not find any infirmity or illegality in the judgment and decree passed by the Trial Court nor there is any perverse or capricious view taken by the Trial Court in coming to such conclusion. There are no valid and justifiable grounds for this Court to interfere in the impugned judgment and order passed by the Trial Court. No merits in the appeal and accordingly the appeal is dismissed.