Nirmala Uniyal vs Ram Krishna Uniyal

Prafulla C. Pant, J.—Heard.

This appeal is directed against order dated 15.3.2011 passed by Principal Judge, Family Court, Dehradun in Suit No. 284 of 2007, whereby said Court has allowed the Application 12C, moved under Order VII Rule 11 of Code of Civil Procedure, 1908 (for short "Code of Civil Procedure").

Brief facts of the case are that appellant Nirmala Uniyal is wife of respondent Ram Krishan Uniyal. They got married in the year 2002. It appears that due to matrimonial discord, the parties started living separately. The appellant earlier filed Suit No. 30 of 2006 u/s 9 of Hindu Marriage Act, 1955 for restitution of conjugal rights, which was dismissed vide order dated 10.5.2007 without going into the merits of the case, only on the ground that in the reconciliation efforts, the appellant (petitioner of said case) was not ready to go with her husband. Subsequently, again Suit No. 284 of 2007 was instituted by the appellant once again u/s 9 of Hindu Marriage Act, 1955 for restitution of conjugal rights. Immediately thereafter, a divorce petition was filed by the husband (respondent)before the District Court, Tehri Garhwal, New Tehri, which was numbered as Suit No. 28 of 2007 (new No. 449 of 2008 before the Principal Judge, Family Court, Dehradun). After this Court transferred the suit filed by the respondent for divorce vide order dated 22.8.2008 in Transfer Application No. 2 of 2008 to Principal Judge, Family Court, Dehradun, both the petitions were being tried by the same Court. Meanwhile, Application 12C was moved by respondent Ram Krishan Uniyal under Order VII Rule 11 of CPC for rejection of the plaint on the ground that the second suit on the same cause of action was not maintainable. Said application was earlier rejected by the trial Court on the ground that the written statement has already been filed by the respondent. However, this Court vide its order dated 8th October, 2010 passed in Writ Petition No. 594 of 2010 (M/S) Ram Krishna Uniyal v. Smt. Nirmala Uniyal directed the trial Court to decide the application under Order VII Rule 11 of CPC afresh, treating the same as maintainable. The impugned order dated 15.3.2011 is passed by the trial Court in compliance of said order. Hence this appeal.

Learned Counsel for the appellant argued that a plaint can be rejected under Order VII Rule 11 of CPC only on the grounds mentioned in Rule 11 i.e. where the plaint does not disclose cause of action, where the relief is under valued or court-fee paid is insufficient or where the suit is barred by law. In addition to this, now by way of amendment, two more grounds are added, one relating to not filing a duplicate copy of the plaint and another where the plaintiff has not complied with the provision of Rule 9. We are concerned with the grounds (a) and (d) mentioned in Rule 11 on which the plaint was sought to be rejected. As far as disclosure of cause of action is concerned, the copy of the plaint, which is Annexure-3 to the affidavit in this appeal, shows that the appellant had clearly pleaded in the petition u/s 9 of Hindu Marriage Act, 1955 (registered as Suit No. 284 of 2007) that her husband (respondent) had left the petitioner without any reasonable and probable cause. In Para 2 and onwards, the facts are clearly stated showing the cause of action. As such, it cannot be said that the plaint did not disclose any cause of action.

Sri Piyush Garh, learned Counsel for the respondent submitted that since the cause of action is same as what was mentioned in Suit No. 30 of 2006, which was dismissed vide order 10.5.2007, and if it is treated the cause of action, the subsequent suit was barred by Section 11 of CPC i.e. on the ground of principle of res judicata.

Having considered the submissions of the learned Counsel for the parties, and after going through the papers on record, we find that the trial Court has erred in law in allowing the application under Order VII Rule 11 of CPC on the ground of res judicata. The order-dated 10.5.2007, passed in Suit No. 30 of 2006, simply says "VADINI SAATH RAHNE KO TAYAR NAHIN HAI. ATAH DAVA KHARIJ KIYA JATA HAI" (Plaintiff is not ready to live with the respondent. As such, the suit is dismissed). The above sentence does not show that the rights between the parties were determined or adjudicated upon. Had it been a case that the suit was dismissed for non-prosecution, we would have treated that the rights stood adjudicated upon, but in the present case on the ground that the wife was not willing to live with the husband, as expressed by her in the reconciliation proceedings, the trial Court should have proceeded to decide the case on merits, instead of dismissing the same. Neither the rights between the parties were determined on merits, nor the suit was dismissed for non-prosecution rather on some other consideration suit was dismissed. The question in a suit for restitution of conjugal rights, which is required to be determined, is that, whether the respondent had withdrawn from the society of the appellant without any sufficient cause or not? There is no finding to that effect in the order-dated 10.5.2007, nor is it a case, where a plaintiff had not pressed his suit or committed default in prosecuting the same. In the circumstances, it cannot be said that the rights between the parties stood determined by the one line order dated 10.5.2007, particularly when in Para 9 of the subsequent Suit, the appellant has categorically stated that on 10.5.2007 at the time of negotiation, the appellant was not interested to agree to the terms suggested by the respondent. The fact of the previous suit is not concealed by the appellant, rather everything has been explained in the subsequent petition as to under which circumstances, the earlier petition was dismissed only for the reason that the appellant did not agree to go with the respondent, on the terms suggested by the Court.

In Kamala and Ors. v. K.T. Eshwara Sa and Ors. 2008 (72) ALR 476, the Apex Court has held that where for deciding an issue relating to res judicata evidence of the parties is required to be led, the plaint cannot be rejected under Order VII Rule 11 (d) of Code of Civil Procedure. In the present case also, since there was mixed question of fact and law involved, as such the rejection of plaint by the trial Court cannot be upheld.

For the reasons, as discussed above, this Appeal is allowed. Impugned order dated 15.3.2011 is set aside. The trial court shall proceed with the Suit No. 284 of 2007 on merits. Application 12C moved by the respondent for rejection of the plaint shall stand rejected, for the reasons discussed above.