Sushama Bhoi @ Barik vs Dr. Hrusikesh Barik

Mruganka Sekhar Sahoo, J

The petitioner-wife in the marriage is before this Court challenging the order dated 03.07.20224 passed by the learned Judge, Family Court, Bargarh in MAT Case No.71/67 of 2021. The said order has been passed in an application under Order VII Rule 11 of CPC filed by the wife in the marriage who is the respondent in the MAT case seeking rejection of plaint. Copy of the application under Order VII Rule 11 of CPC filed by the petitioner herein is annexed to the writ petition marked as Annexure-2. Paragraphs 1 and 2 of the said application are reproduced herein:

"1. That the petitioner had filed MAT Case No. 31 of 2014 in the Court of Civil Judge, S.D., Bargarh, disclosing the cause of action arose on dated 02.06.2013 when the drespondent left his company. The very suit was dismissed on merit against the petitioner on 08.01.2016 that there is no cause of action and the same has been confirmed in MATA No. 02 of 2016 dismissing the Appeal filed by the petitioner/appellant in the Court of District Judge, Bargarh on 17.02.2021. And on the same cause of action the MATA No. 30 of 2021 filed by the petitioner/appellant in the Hon'ble High Court of Odisha, Cuttack, was dismissed as withdrawn on 01.09.2021.

That accordingly the present suit with a discloser on the same cause of action i.e. on dated 02.06.2013 is liable to be rejected as has already been decided by the Courts that there is no cause of action on dated 02.06.2013."

The learned counsels, Mr. Sahu and Mr. Panda for the petitioner were heard at length.

The learned counsel, Mr. A. Sahu for the opposite party submits that he does not have a copy of the application. However, he has gone through the paperless brief being made available.

The learned counsel, Mr. Sahu reiterates the submissions made before the learned trial court that the learned court should have rejected the plaint, as sought for by filing application under Order VII Rule 11 of CPC. For convenience of reference, Order VII Rule 11 is reproduced herein:

"Order VII

Rejection of plaint.-

(a) Where it does not disclose a cause of action; xxx xxx xxx"

Since the Order VII Rule 11(a) of CPC provides that the plaint shall be rejected where it does not disclose a cause of action, the learned counsel for the petitioner were asked to apprise this Court whether the plaint discloses any cause of action or not. In that context, the learned counsel for the petitioner have placed the relevant portion of the order in MAT Case No.71/67 of 2021 filed on 21.01.2021 fixing date of appearance on 26.11.2021.

The learned Judge, Family Court has considered the petition invoking Order VII Rule 11(a) of CPC. The objection filed by the opposite party who is the petitioner before the learned trial court and has passed a detailed order. The relevant portion of the impugned order is herein reproduced and considered:

"Perused the record. In the present petition, as it appears, the petitioner-respondent has claimed that as the earlier suit stands decided with a finding that there was no cause of action to bring such suit and the present suit being a subsequent one is devoid of cause of action as the petitioner has taken the same cause of action. It is also found that earlier the petitioner-respondent has made a petition challenging the maintainability of the suit on the principle of res-judicata, where under such initiation of previous suit was discussed at length by this court. The respondent has challenged the order of this court before the Hon'ble Court wherein the Hon'ble Court has directed the parties to participate in the trial by adducing evidence where upon the issue of res-judicata shall be decided along with other issue on the basis of material available on record. Such being the present scenario, it appears that the petitioner-respondent is again trying to agitate the same matter under the guise of provision under Or-7, R- 11 of the CPC. Hence the present petition stands rejected.

Already heard on the second petition dtd.28.2.24 filed by the respondent and objection there to. The respondent has submitted that the Hon'ble High Court has, in W.P (C) no.35543 of 2023, directed the parties to participate in the trial by adducing evidence where upon the issue of resjudicata shall be decided along with other issue on the basis of material available on record. Even though there is no dispute regarding the draft issues as filed by the respondent but the petitioner has denied some issues in his examination in chief by way of affidavit. Thus issues need to be recasted as 1.Whether the suit is barred by the principle of Res-judicata and Constructive Res-judicate, 2.Whether the suit is barred by the principle of Estoppel, 3.Whether the suit is barred by non-joinder of necessary parties under R-5 (a) of Hindu Marriage and Divorce (Orissa High Court Judicature).

4.Whether the petitioner is entitled for a decree of divorce basing on a period of more than 8 years separate living of the parties and other issues.

Hence this petition.

On the other side the petitioner has objected by submitting that as the issue regarding maintainability has already been framed it is not necessary to recast issues. Submitting further that the respondent is deliberately filing various petitions repeatedly, the present one. The record reveals that the issues were recasted on 14.02.2023 and the recasted issues include "(I) Whether the Mat application in the form a suit is maintainable in the eye of law,(II) Whether the petitioner-husband has a cause of action to file such an application in the form of suit, (III).Whether the Mat application in the form of a suit is barred by principles of res-judicata and constructive resjudicate? (IV) Whether the respondent has deserted the petitioner ? (V) Whether the petitioner husband is entitled to any other relief? Hence it is seen that the proper issue whether the suit is barred by the principle of estoppel and is bad for non joinder of necessary parties relate to the maintainability of the Mat suit and the same can be addressed while deciding the issue relating to maintainability of the suit. As regards proposed issue no.IV in the petition, the same can be answered while deciding issue no.IV of the recasted issue. Accordingly the petition dtd.28.02.2024 stands disposed of.

Mean while the respondent is directed to press the petitions which remain not decided. Record be posted to 25/07/2024 for hearing."

Perusal of the above paragraphs indicates the reasoning given by the learned Family Court: that on 14.02.2023 the issues to be answered in the MAT case have been recasted. The issue regarding maintainability of the application will be heard by the learned trial court as indicated. The objection regarding maintainability as indicated in the application under Order VII Rule 11 CPC is also available to the petitioner to be raised at the appropriate stage as observed by the learned court.

The learned Family Judge has taken note of the fact that the present petitioner-respondent before the learned Family Judge had filed application on 28.11.2022 challenging maintainability of the proceeding that was rejected by the order of the learned court dated 14.12.2023; against the said order dated 14.12.2023 in W.P. (C) No.35543 of 2023 was filed by the present petitioner which was disposed of by this Court, by a coordinate Bench, observing that maintainability being a mixed question of fact and law will be decided at the time of final disposal of case after trial.

In considered view of this Court, the said decision by the coordinate Bench having not challenged also binds the parties in the present adjudication. This Court also cannot review the said earlier order. The petitioner is also no way prejudiced as the learned Family Judge has recasted the issue and kept all the issues open to be considered during course of trial.

The writ petition is accordingly disposed of.

It is clarified that no part of this order shall be treated to be observation on merits of the contentions of the parties to the litigation which is pending trial.

Copy of this order shall be forwarded to the learned Judge, Family Court, Bargarh to be kept in the files of MAT Case No.71/67 of 2021.