NIMBEWWA Vs. PREMA AND ORS.

JUDGEMENT

(1.) 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.

(2.) 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.

(3.) 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.