SYED FAREES AHMED Vs. SAMEENA MISBAH

JUDGEMENT

(1.) Even though the matter came-up at interlocutory stage, both the learned Counsel have requested us to hear and dispose of the appeal as the subject matter is a marriage dispute and it was filed against a preliminary finding.

(2.) Thisappeal is directed against the Judgmentand Decree dated 21-12-1995 rendered by the Family Court, Hyderabad in O.S.No. 154 of 1995. The Suit was originally instituted as O.S.No. 5277 of 1994 on the file of the IX Assistant Judge, City Civil Court, Hyderabad seeking a relief of restitution of conjugal rights by the appellant herein against the 1st respondent on the premise that there was a marriage inter se him and the 1st respondent on 28-12-1993. The same was denied and the case was being contested. The denial was in toto and the 1st respondent is very categorical mat the marriage was never performed as stated by the plaintiff-appellant, mat the marriage certificate is a forged one. On the rival contentions, triable issues were framed and issue No.5 was tried as a preliminary issue, which reads "whether the suit is barred by principles of res judicata in view of the dismissal of W.P. No.16400 of 1994". In the above issue, the number of the Writ Petition was wrongly mentioned as W.P.No.5849 of 1993. The said issue was held in favour of the 1st defendant (1st respondent herein) and then the suit was terminated on the ground of res judicata, and the result is this appeal. It is needless to mention that other issues were not tried because of the finding on the above issue No.5.

(3.) We have heard either counsel and perused the Order passed by this Court in W.P. No.16400 of 1994, dated 19-10-1994.