SUMITRA DEVI Vs. GAURI SHANKAR

JUDGEMENT

(1.) The instant appeal is preferred against order dated 29.06.2018 passed in Civil Matrimonial Suit No. 61 of 2018, Shri. Gauri Shankar Vs. Smt. Sumitra Devi by the Court of learned Family Judge, District Almora (for short "the case"). By the impugned order, an application filed under Section 11 of the Code of Civil Procedure, 1908 (for short "CPC") read with Order 7 Rule 11 CPC has been rejected.

(2.) The facts necessary to resolve the controversy are in a very short span. The respondent filed a suit for divorce on the ground of desertion and cruelty. During hearing of the case, an application under Section 11 read with Order 7 Rule 11 CPC was moved by the appellant with the averments, therein, that earlier also the respondent had filed suits for divorce, on the ground of desertion. The first suit was Matrimonial Case No. 22 of 2004 which was dismissed on 21.04.2005. Thereafter, the respondent filed a Matrimonial Suit No. 20 of 2012 which was decided on 19.12.2013 and the court held that the suit was barred by the principle of res-judicata. The third Matrimonial Suit No. 19 of 2019 was filed by the respondent which he withdrew on 24.05.2018 with the permission to file fresh suit. Therefore, according to the application, the petition for divorce filed by the respondent in the case was barred by the principle of res-judicata. Learned court below after hearing the parties rejected the application. The court held that the period of desertion in earlier suit was distinct, therefore, the case cannot be said to be barred by the principle of res-judicata. Aggrieved by it, the appeal has been preferred.

(3.) Learned counsel for the appellant would argue that the first Matrimonial Suit No. 22 of 2004 was filed by the respondent on the ground of desertion but it was dismissed on 21.04.2005. The second Matrimonial Suit No. 20 of 2012 filed by the respondent for divorce, was dismissed on the ground that it is barred by the principle of resjudicata. Third Matrimonial Suit No. 19 of 2018 was again filed by the respondent on the ground of desertion but it was withdrawn by him on 24.052018. Learned counsel would argue that on the same ground successive divorce petitions are not maintainable? It would be against the concept of finality of the judgment. According to learned counsel, the petition for divorce filed by the respondent is clearly barred by the principle of res-judicata, therefore, the application filed by the appellant under Section 11 read with Order 7 Rule 11 CPC ought to have been allowed by the learned court below. Therefore, the appeal may be allowed.