SMT. JASWANTKAUR Vs. SHRI KAUR SINGH

JUDGEMENT

(1.) The Respondent obtained an ex -parte decree for restitution of conjugal rights against the Petitioner on May 31, 1971. On the basil of that decree, he made an application for divorce under Sec. 13 of the Hindu Marriage Act on June 5, (sic). This application was also decided in his favour and an ex parts decree for dissolution of marriage was passed on 19 (sic) 1973. The Petitioner filed applications for setting aside the ex parte decrees for restitution of conjugal rights and the dissolution of the marriage. Her application for setting aside the decree for restitution of conjugal rights was dismissed but the application for restoration of the proceedings re dissolution of marriage was allowed. It was allowed on 15.6.1976. It appears that the Respondent had also filed another petition for dissolution of marriage on June 15, 1976. The first petition came up for hearing before the learned trial Court on July 20, 197(sic) for framing of issues. On behalf of the Petitioner an issue was claimed that since the Respondent had filed another petition also, the two petitions on the same subject could not continue. Upon this, the Respondent withdrew the first petition with the leave of the Court on October 31, 1977. The Petitioner came up in revision before this Court on the ground that since the Petitioner had withdrawn one petition on the same cause of action the learned trial Court should have framed an issue about the maintainability of the second petition. When that revision petition came up for hearing before me on 3 -3 -1978(sic) I passed the following order: -

(2.) When the matter went to the learned trial court, by some oversight or omission, the Court proceeded to try the second petition after framing an issue on the point whether the decree for restitution of conjugal rights obtained by the Respondent had been satisfied or not. Beth the parties were allowed full opportunity of leading evidence on this issue which ultimately was decided against the Respondent. The Respondent did not file an appeal against that judgment but instead filed an application for review before the learned District Court on the ground that since the second petition had been stayed under my orders the Court had no jurisdiction to try the same. This review petition was allowed by the learned District Court and the Petitioner has come up in revision against that order.

(3.) Mr. Mehta, the learned Counsel for the Petitioner, has argued that both the petitions contained substantially similar allegations and the point in controversy was whether the decree for restitution of conjugal rights had been satisfied or not The learned Counsel asserts that it on account of tome inadvertent mistake the learned trial Court recorded the evidence in one file instead of the other, that should have made no difference as far as the merits of the case are concerned.