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ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

Thursday, October 9, 2014

Or.7, Rule 11 C.P.C. - for rejection of O.P. for Divorce and for Declaration that the decree given by Arizona is not binding on her and for return of gold , cash and for permanent alimony - husband filed application for rejection of main OP - Trial court dismissed - their lordships held that In the instant case, the petitioner is not able to demonstrate that any ground pleaded by him fits into Rule 11 of Order VII, CPC. Even if the facts pleaded by him are taken as true, he is entitled to rely upon the decree passed by the Court at Arizona as a defence. In other words, he can raise the plea of res judicata as one of the defences. It is fairly well established that the plea of res judicata is a mixed question of fact and law. It is only when the relevant facts, namely, that as between the same parties, a Court of competent jurisdiction has decided the issue which falls for consideration in the subsequent set of proceedings, that the Court can refuse to adjudicate the same issue once again. On such facts being proved, it operates as a bar in law. Even when there is no dispute regarding a judgment or decree in a different set of proceedings as operating res judicata, it cannot be a basis for rejection of the plaint. The trial Court has taken the correct view of the matter and this Court is not inclined to interfere with the same. = CIVIL REVISION PETITION No. 5336 OF 2013 02-09-2014 Hareesh Kakarla... PETITIONER E. Sweetha .. RESPONDENTS = 2014 - Oct. Month - http://judis.nic.in/judis_andhra/qrydisp.aspx?filename=11940

 Or.7, Rule 11 C.P.C. - for rejection of O.P. for Divorce and for Declaration that the decree given by Arizona is not binding on her and for return of gold , cash and for permanent alimony - husband filed application for rejection of main OP - Trial court dismissed - their lordships held that In the instant case, the petitioner is not able to demonstrate that any ground pleaded by him fits into Rule 11 of Order VII, CPC.  Even if the facts pleaded by him are taken as true, he is
entitled to rely upon the decree passed by the Court at Arizona as a defence.  
In other words, he can raise the plea of res judicata as one of the defences.  It is fairly well established that the plea of res judicata is a mixed question of fact and law.  It is only when the relevant facts, namely, that as between the same parties, a Court of competent jurisdiction has decided the issue which falls for consideration in the subsequent set of proceedings, that the Court can refuse to adjudicate the same issue once again.  On such facts being proved, it operates as a bar in law.  Even when there is no dispute regarding a judgment or decree in a different set of proceedings as operating res judicata, it cannot be a basis for rejection of the plaint.  The trial Court has taken the correct view of the matter and this Court is not inclined to interfere with the same. =

The respondent filed O.P No. 1456 of 2012 in the
Additional Family Court, City Civil Court, Hyderabad, for
divorce under Section 13 of the Hindu Marriage Act, 1955 (for
short, the Act) against the petitioner.  Declaration was
sought to the effect that divorce obtained by the petitioner in
the Superior Court of the State of Arizona is not binding on
her.  Other ancillary reliefs in the form of a decree for return
of gold, cash etc., and permanent alimony were also claimed.-

The basis for the petitioner to file an application under
Order VII Rule 11 CPC for rejection of the O.P is a decree
stated to have been obtained from the Court at Arizona,
granting the decree for dissolution of marriage between him
and the respondent.  Even the respondent took note of the
same and claimed the relief by making a specific reference
thereto.

      It is only when the defendant in a suit or a respondent
in the O.P is able to establish the grounds enlisted in Rule 11
of Order VII CPC that the Court can consider the feasibility of
rejecting the plaint or the O.P., as the case may be.  In the
instant case, the petitioner is not able to demonstrate that
any ground pleaded by him fits into Rule 11 of Order VII,
CPC.
Even if the facts pleaded by him are taken as true, he is
entitled to rely upon the decree passed by the Court at
Arizona as a defence.
In other words, he can raise the plea of
res judicata as one of the defences.
It is fairly well established
that the plea of res judicata is a mixed question of fact and
law.
It is only when the relevant facts, namely, that as
between the same parties, a Court of competent jurisdiction
has decided the issue which falls for consideration in the
subsequent set of proceedings, that the Court can refuse to
adjudicate the same issue once again.
On such facts being
proved, it operates as a bar in law.  Even when there is no
dispute regarding a judgment or decree in a different set of
proceedings as operating res judicata, it cannot be a basis for
rejection of the plaint.
The trial Court has taken the correct
view of the matter and this Court is not inclined to interfere
with the same.
      The C.R.P is accordingly dismissed.

2014 - Oct. Month - http://judis.nic.in/judis_andhra/qrydisp.aspx?filename=11940

HONBLE SRI JUSTICE L. NARASIMHA REDDY        

CIVIL REVISION PETITION No. 5336 OF 2013    
       
02-09-2014

Hareesh Kakarla... PETITIONER

E. Sweetha .. RESPONDENTS    

Counsel for the Petitioner: Smt. K. Lalitha

Counsel for 1st Respondent: Smt. D. Pramada

<GIST:

>HEAD NOTE:  

? Cases referred

THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY        

CIVIL REVISION PETITION No. 5336 OF 2013    
Dated:02-09-2014
       

ORDER:


      The petitioner is the husband of the respondent.  Their
marriage took place in the year 2003 at Hyderabad and both
of them started living in USA after marriage.  A child was
born in the year 2009.  Disputes appear to have arisen
between the parties.  According to the petitioner, proceedings
were initiated before the Superior Court in the State of
Arizona and a decree of divorce was granted.

      The respondent filed O.P No. 1456 of 2012 in the
Additional Family Court, City Civil Court, Hyderabad, for
divorce under Section 13 of the Hindu Marriage Act, 1955 (for
short, the Act) against the petitioner.  Declaration was
sought to the effect that divorce obtained by the petitioner in
the Superior Court of the State of Arizona is not binding on
her.  Other ancillary reliefs in the form of a decree for return
of gold, cash etc., and permanent alimony were also claimed.
After receipt of notice in the O.P., the petitioner filed I.A No.
355 of 2013 under Section 7of the Act read with Section 13
and Rule 11 of Order VII CPC, with a prayer to reject the O.P.
According to him, the O.P is not maintainable once the
marriage between the parties has been dissolved by a Court of
competent jurisdiction in USA and where there is no
subsistence of marriage at all, the question of granting
divorce does not arise.

      The respondent opposed the I.A by filing a counter
affidavit.  She pleaded that the decree from the Superior
Court at Arizona was obtained fraudulently and that it is not
binding upon her.  It was also pleaded that even if there
existed a decree, it would constitute the basis for the plea of
res judicata and the O.P cannot be rejected.

      The trial Court dismissed the I.A., through order dated
26-11-2003. Hence this revision.

      Heard Smt. K. Lalitha, learned counsel for the petitioner
and Smt.D. Pramada, learned counsel for the respondent.

      The basis for the petitioner to file an application under
Order VII Rule 11 CPC for rejection of the O.P is a decree
stated to have been obtained from the Court at Arizona,
granting the decree for dissolution of marriage between him
and the respondent.  Even the respondent took note of the
same and claimed the relief by making a specific reference
thereto.

      It is only when the defendant in a suit or a respondent
in the O.P is able to establish the grounds enlisted in Rule 11
of Order VII CPC that the Court can consider the feasibility of
rejecting the plaint or the O.P., as the case may be.  In the
instant case, the petitioner is not able to demonstrate that
any ground pleaded by him fits into Rule 11 of Order VII,
CPC.  Even if the facts pleaded by him are taken as true, he is
entitled to rely upon the decree passed by the Court at
Arizona as a defence.  In other words, he can raise the plea of
res judicata as one of the defences.  It is fairly well established
that the plea of res judicata is a mixed question of fact and
law.  It is only when the relevant facts, namely, that as
between the same parties, a Court of competent jurisdiction
has decided the issue which falls for consideration in the
subsequent set of proceedings, that the Court can refuse to
adjudicate the same issue once again.  On such facts being
proved, it operates as a bar in law.  Even when there is no
dispute regarding a judgment or decree in a different set of
proceedings as operating res judicata, it cannot be a basis for
rejection of the plaint.  The trial Court has taken the correct
view of the matter and this Court is not inclined to interfere
with the same.
      The C.R.P is accordingly dismissed.


      The miscellaneous petitions filed in this revision shall
also stand disposed of.  There shall be no order as to costs.

___________________________    
L. NARASIMHA REDDY, J    
02-09-2014

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