RABINDRA BISWAL Vs. HEMALATA BISWAL

JUDGEMENT

(1.) The petitioner has moved this Court under S.482, Cr. P.C. against the revisional order and the original orders directing him to pay maintenance to opposite party No. 1 at the rate of Rs. 200/- per month. The opposite party No. 1 filed a petition under S.125, Cr. P.C. against the petitioner and his father the present opposite party No. 2 claiming herself to be the wife of the petitioner and pleading that at the time of the marriage in 1981 the petitioner had demanded a sum of Rs. 4,000/- out of which a sum of Rs. 1,500/- had been paid within one year of the marriage. She was not permitted to visit her father's place unless the balance amount was paid and was also ill-treated for non-payment of the amount. After two years and 4 months of the marriage, the petitioner sent for the uncle of opposite party No. 1 and drove her out of the house after obtaining her signature on a blank paper and gave out that he would divorce her. Contesting the application, the petitioner denied the fact of marriage with opposite party No. 1 stating that she had been falsely set up by some other persons inimically disposed towards him to harass him, and further contended that the petition was not maintainable since a suit filed by the opposite party No. 1 in which the fact of relationship of the petitioner and opposite party No. 1 was to be decided, was pending at the time.

(2.) Mr. A.K. Mishra, learned counsel appearing for the petitioner has mainly urged in assailing the order, the finding of the learned Magistrate as also of the revisional Court of the petitioner being the husband of opposite party No. 1 as not available to have been reached since T.S.S. of 1984 filed in the court of the Munsif, Banki by the opposite party No. 1 for injunction against the petitioner seeking to restrain him from entering a second marriage was dismissed for default under O.9, R.8, C.P.C. and hence the bar under O.9, R.9, C.P.C. operated for which the opposite party No. 1 could not have brought any fresh suit which substantially involved determination of relationship of the parties as husband and wife and for such reason no finding could be reached on the application under S.125, Cr. P.C. of the parties having a mutually married status. The fact that opposite party No. 1 had filed the suit for injunction and that the same has been dismissed for default without any restoration is not disputed by the learned counsel for opposite party No. 1.

(3.) Order 9, R.9, C.P.C. provides that where a suit has been dismissed for the plaintiff's non-appearance even though the defendant had appeared when the suit was called for hearing, the plaintiff is not eligible to bring a fresh suit on the same cause of action but may apply to set aside the order of dismissal on showing sufficient cause for his non-appearance. The bar contemplated under the provision is a prohibition to bring a new suit on the same cause of action. On the face of it, the provision cannot apply to an application under S.125, Cr. P.C. and hence even if a suit is dismissed for default and another suit on the same cause of action would be barred, yet an application under the Criminal Procedure Code statutorily provided for would not suffer from any disqualification. It is well settled that the bar contemplated under O.9, R.9, C.P.C. is not that of res judicata since there is no adjudication of the issues involved in the suit by the competent court. The provisions of O.9, R.9, C.P.C. are only procedural in character and hence would not have any overriding effect over statutory rights.