SIMARJIT KAUR Vs. GURMAIL SINGH

JUDGEMENT

(1.) By virtue of instant revision preferred under Article 227 of the Contitution of India, petitioner has sought the quashing/setting aside of order dated March 17, 2014 passed by learned District Judge, Sri Muktsar Sahib whereby, an application moved by the petitioner for treating issue No. 3 pertaining to the applicability of principle of res judicata, as preliminary issue; has been dismissed.

(2.) The contention of learned counsel for the petitioner is that an application was moved by the petitioner-wife for treating the preliminary issue with regard to the applicability of principle of res judicata in the divorce petition preferred by her husband against her, in view of the decision of previous petition preferred by him under section 13 of the Hindu Marriage Act, 1955 (for short 'Act'), which was dismissed vide judgment dated April 11, 2009 passed by learned Additional District Judge, Sri Muktsar Sahib but that application has been erroneously and illegally dismissed by learned District Judge, Sri Muktsar Sahib vide impugned order dated March 17, 2014 by observing that an issue with regard to the applicability of principle of res judicata cannot be treated as preliminary issue as the grounds taken in the divorce petition i.e. desertion and cruelty are continuous wrong and each day would give a fresh cause of action to the wronged spouse and further that even issue of principle of res judicata cannot be treated as preliminary issue even when only little evidence to be produced i.e. Copies of judgment in earlier litigation between the parties etc. but the afore-said observations made by learned District Judge, Sri Muktsar Sahib are wrong. In fact the principles of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a res judicata, it shall not be adjudged again. When a matter, whether on a question of fact or a question of law has been decided between two parties in one suit or proceedings and the decision is final. Neither party to it would be allowed in a future suit or proceedings between the same parties to canvas the matter again. Earlier petition was also filed by respondent-husband on the same grounds i.e. desertion and cruelty, which has already been dismissed vide judgment and decree dated April 11, 2009 and on the same grounds another petition has been filed by respondent-husband in the month of last week of November 2013. Moreover, an application was only filed by the present petitioner-wife for treating an issue with regard to the applicability of principle of res judicata and the matter in issue was to be decided by learned District Judge after hearing the parties and appraisal of documents to be tendered by the parties to the petition, which has not been done in the instant case. Thus, the impugned order is not sustainable in the eyes of law and deserves to be set aside.

(3.) On the other hand learned counsel for the respondent has supported the impugned order and while controverting the pleas to be put forth by the petitioner, has submitted that issue pertaining to the applicability of principle of res judicata is being a mixed question of law and facts cannot be treated as preliminary issue. The second contention put forth by learned counsel for the petitioner is that desertion and cruelty are continuous wrong and each day there is fresh cause of action to the wrong spouse. In support of his contention learned counsel for the petitioner has placed reliance upon the pronouncement of this Court delivered in the case of Major S.S. Khanna v. Brig. F.J. Dillon; AIR 1964 SC 497 as well as Shyam Lal v. Leelawati; 2007 (4) RCR (Civil) 477.