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Mr. Bhushan Dattatraya Kedar vs Mrs. Dipti Bhushan Kedar on 4 May, 2018

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.4011 OF 2017

Bhushan Dattatrayay Kedar .. Petitioner
Versus
Dipti Bhushan Kedar .. Respondent

WITH
WRIT PETITION NO.6225 OF 2017

Dipti Bhushan Kedar .. Petitioner
Versus
Bhushan Dattatrayay Kedar .. Respondent

Mr.S.S. Wagh i/b Mr.Vijaykumar B. Dighe for the petitioner in WP
4011/17 and for the respondent in WP 6225/17.

Ms.Dhwani Mehta for the respondent in WP 4011/17 and for the
petitioner in WP 6225/17.

CORAM: SMT.BHARATI H. DANGRE, J
RESERVED ON : 28th MARCH, 2018
PRONOUNCED ON : 4th MAY 2018

JUDGMENT :-

1 Rule. Rule made returnable forthwith.

2 Both the Writ Petitions are being heard together by

consent of the parties, and are being disposed of by this common

judgment since the factual aspect involved in both the Writ

Petitions revolve around the same set of facts.

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3 Before dealing with the legal issues raised in both the

petitions, it would be useful to refer to the chronology of facts and

events leading to the filing of the present writ petitions, one by the

husband and another by the wife.

The marriage between petitioner husband and

respondent wife is solemnized on 5th July 2006. It is not in dispute

that for a very short span of time, the parties led their marital life

as husband and wife, and on 25 th August 2006, the wife left the

matrimonial home since she was serving at Pune and she

continued to stay in Pune for approximately a period of one year.

It is the case of the husband that the wife was residing separately

on account of she serving there, whereas it the case of the wife

that because of the cruelty inflicted upon her, she had chosen to

reside separately and she was rather coerced to stay away from the

matrimonial house. However, it is not in dispute that on 29 th

August 2007, the wife came to reside in the matrimonial house,

but again due to differences between the parties, the wife left the

matrimonial home on 4th August 2008, and since then, there is no

cohabitation between the parties. In the mean time, on 5 th April

2009, a female child was born out of the wedlock.

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4 As far as the proceedings instituted by the parties

against each other are concerned, it is relevant to note that in

2009, the husband filed proceedings for divorce on the ground of

cruelty vide HMP No.218 of 2009 in the Civil Court at Nashik. In

the said petition, he sought divorce on the ground of cruelty and

also on the ground of desertion. According to the husband,

though desertion was mentioned as a ground for divorce, the said

ground was not available since the period when the wife had left

the company of the husband, was less than one year. The HMP

filed by the husband came to be decided against him by judgment

dated 31st August 2000 passed by the Civil Judge, Sr.Division

Nasik.

Being aggrieved, the petitioner filed an appeal in the

District Court which was numbered as Appeal No.243/2010. In

the mean time, the wife instituted proceedings under Section 12 of

the Protection of Women from Domestic Violence Act, 2005, which

were rejected by the Sessions Court against which the wife has

approached the High Court and the proceedings are subjudice.

5 It is pertinent to note that during the pendency of the

Appeal filed by the husband, he filed a second petition, seeking

divorce on the ground of cruelty and also on the ground of

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desertion. The said proceedings were instituted in the Family

Court as Nasik and was numbered as OA No.176/2012.

The husband moved an application Exhibit 17 on 26th

November 2014 in the appeal proceedings filed by him. In the

said application, he sought a relief of withdrawal of the original

HMP No.218 of 2009 and the District Judge permitted withdrawal

of HMP with costs of Rs.2,000/-. It is this order which forms the

basis of proceedings involved in both the writ petitions and it is

the specific contention of the wife that what was allowed to be

withdrawn was only an appeal and not the HMP which came to be

decided on merits. This controversy would be decided at a

subsequent point of time. However, in order to continue with the

chronology of events, it is to be noted that the amount of costs was

immediately paid by the husband and accepted by the Advocate

for the respondent on the same day. Subsequently, on 22 nd

January 2005, the wife moved an application before the Family

Court in the proceedings of divorce filed by the husband vide OA

No.176/12 claiming that the divorce petition is not tenable and it

is barred by res-judicata. The learned Family Court passed an

order on 22nd January 2015 and observed that HMP No.218/09 is

withdrawn, and the subsequent Divorce Petition No.176/12 is on a

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different and subsequent ground, the principle of res judicata is

not applicable and the Court rejected the application.

The wife approached this Court by filing WP

No.10810 of 2015 which came to be rejected on 20 th January 2015

with an observation that the order dated 26 th November 2014 has

not been challenged by the petitioner, and in view of that order, it

cannot be said that decree in HMP No.218/09 no longer subsists

and in such circumstances, there is no question of applicability of

doctrine of res judicata. The Court also observed that the

subsequent petition was based on different cause of action, hence,

question of res judicata would not arise. The order passed by this

Court came to be challenged before the Supreme Court by the wife

and the challenge was summarily rejected and the order passed by

the High Court came to be confirmed.

6 In the mean time, the wife moved an application

under Section 152 of the Code of Civil Procedure for correcting the

order of District Judge passed on 26th November 2014 by filing

Miscellaneous Application No.222/15 on 9th December 2005. The

said application came to be opposed by the husband on the ground

of its tenability and it was submitted that under Section 152, the

Court is authorized to correct only arithmetical and clerical

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mistakes. However, the District Judge suo moto treated the

application under Section 152 as the application for review and

reviewed the order dated 26th November 2014, by an order dated

21st January 2016, thereby rectifying its earlier order.

This order was subject matter of Writ Petition filed

before this Court vide Writ Petition No.6174/16 and the High

Court on the ground that the wife was not afforded an opportunity

of hearing, by order dated 5th January 2017 was pleased to

remand the matter back to the District Judge to be decided on its

own merits and in accordance with law.

7 The Hon’ble District Judge heard the said

Miscellaneous Application No.222/15 and allowed the same on 6 th

February 2017 by an observation that there was no order

permitting the appellant to withdraw HMP No.218/09. The Court

noted that what was sought to be withdrawn was only the Appeal

and for that limited purpose, the other side had consented, and in

any contingency, the HMP could not have been permitted to have

been withdrawn since it was already decided on merits, and

therefore, an error had occurred which was apparent on the face

of record. In this background, the learned Principal District

Judge, Nashik allowed the application filed by wife and set aside

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the impugned order passed below Exhibit-17 in Civil Appeal

No.243/10. The Court directed the parties to advance their

submissions below Exhibit-17 and directed the matter to proceed

from that stage onwards. The order of withdrawal of Civil Appeal

was also set aside and appeal stood restored and the respondent

wife was directed to refund the amount of Rs.2,000/- to the

husband/appellant.

8 Writ Petition No.4011 of 2017 is filed by the

petitioner husband who assails the said order dated 6 th February

2017 passed by the Principal District Judge at Nashik. He prays

for quashing and setting aside of the said impugned order and has

also prayed for stay to the effect and operation of the said order.

In the backdrop of the same facts, WP no.6225/17 is filed by the

wife challenging the order dated 7th March 2017 passed by the

Family Court, Nashik on an application filed by the wife to dismiss

the petition on the ground that the petition is hit by principles of

res judicata and also on the ground of abuse of the process of law.

On such an application, the Family Court has observed that the

HMP No.218/09 was filed by the husband on the ground of cruelty

and desertion and the said petition was dismissed, against which

the appeal is preferred in the District Court at Nashik. The Family

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Court relying on the judgment of the Rajasthan High Court has

held that desertion and cruelty are continuous grounds and has

recorded a finding that on subsequent ground, the husband moved

the petition, and therefore, without affording an opportunity to

the husband to deal with the contention raised by the wife, the

Court observed that it would not be desirable to straight away

dismiss the petition on the ground of res judicata or on the ground

of abuse of process of law.

9 In support of the petition, I have heard Advocate Shri

S.S. Wagh appearing for the petitioner in WP 4011/17 and

Ms.Dhwani Mehta appearing for the petitioner in WP 6225/17.

Both the respective counsel appeared for the respective

respondents in the writ petitions.

Shri Wagh, learned counsel would invite the attention

of this Court to the chronology of events and would submit that

the order passed by the Principal District Judge is erroneous as the

Court has invoked the jurisdiction under Section 151 of the Code

of Civil Procedure suo moto since the application that was

preferred was under Section 152 of CPC and the Court had no

jurisdiction to invoke its inherent powers. Further, he would

submit that in effect, the Principal District Judge had exercised the

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power of review by reviewing its own earlier order, which was

impermissible in law. He would place reliance on the judgment of

the Hon’ble Apex Court in the case of Nain Singh Vs. Koonwarjee

and ors.1, wherein the Hon’ble Apex Court has found fault with

the order of the High Court and has held that the Hon’ble High

Court has misconceived notions about its inherent powers, and

further held that under the inherent powers of the Court, as

recognized under Section 151 of CPC, Court has no power to do

that which is prescribed by the Court, and the Court cannot make

use of the special provision where a party has its remedy provided

elsewhere in the Code, and has failed to avail such a remedy. He

would also submit that the power under Section 151 of the CPC

cannot be exercised as an appellate power. He would also place

reliance on the judgment of the Apex Court in case of State of U.P

Vs. Roshan Singh Anr,2 laying down the scope of Section 151 of

CPC, and he would invite the attention of this Court to paragraph

no.7 of the said judgment, wherein their Lordships in unequivocal

terms, have held that object of Section 151 of the Code of Civil

Procedure is to supplement and not to replace the remedies

provided for in the Code.

1 1970(1) SCC 732
2 Appeal (civil) 453-455/08 dt.16/1/2008

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As against this, Ms.Dhwani Mehta would submit that

the husband had instituted proceedings for divorce on the ground

of cruelty and desertion. The Court did not find substance in the

contention of the husband and was pleased to reject the claim

seeking divorce. She would specifically submit that the cause of

action for instituting the proceedings for divorce was cohabitation

between the parties for a limited period from 5 th July 2006, and as

according to her, it is the case of the petitioner that the wife

resided away from the husband from 25th August 2006 till 29th

August 2007. She would submit that it is even the case of the

husband that when the wife came to reside at the matrimonial

house from 29th August 2007, she behaved in a cruel manner, and

she ultimately left the house on 4th August 2008 and this act of

hers amounted to cruelty and he invoked the jurisdiction of the

Court to seek decree of divorce on the said ground. She would

submit that the husband instituted proceedings in 2009 based on

the acts of cruelty which he alleged for the period of cohabitation

between the parties. She would submit that thereafter, there was

no cohabitation between the parties, and in fact, the wife had filed

the suit for restitution of conjugal rights on 8 th February 2010 at

Family Court, Nashik. She would submit that the second petition

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seeking divorce on the ground of cruelty and desertion filed before

the Family Court, is based on the same cause of action.

She would invite the attention of this Hon'ble Court to

the petition instituted by the husband vide Petition No.A-176-12 in

the Family Court at Nashik, and to the specific pleadings in

paragraph nos.5, 6, 7 and 10 and she submits that the entire

petition is based on narration of facts from 5 th July 2006 to 5th

August 2008 where the husband has alleged her misbehaviour

with him as well as family members and the quarrels that occurred

between the parties. She would submit that the same cause of

action was invoked to file the initial HMP 218/09. She would

further submit that the husband had moved an application seeking

amendment of the petition inserting certain other grounds of

invocation of provisions of section 498A against the husband and

the family members and making of wild and defamatory

allegations against him and his family, and according to him, this

amounted to cruelty. This application for amendment, however,

came to be rejected. Thus, according to her, the second petition

seeking Divorce revolves around the same cause of action which is

sought to be invoked in the HMP-1 i.e. 218/09 filed by the

husband which came to be rejected. Learned counsel would place

reliance on the judgment of Syed Mohd.Salie Labbai Vs. Mohd

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Hanifa1, to emphasize the principles of res judicata, and she

submitted that the best method of deciding the question of res

judicata is to determine the case of the parties as put forward in

the respective pleadings of their previous suits and then to find out

as to what had been decided by the judgments which operate as

res judicata. On the basis of her pleadings and submissions, she

would submit that the order passed by the Principal District Judge,

restoring the appeal and the HMP 218/09 is perfectly justified

since what could not have been withdrawn is only the Appeal and

not the HMP which was finally decided on merits.

10 On a deep consideration of the chronology of events

placed before this Court and the submissions made by the learned

counsel, two issues emerge, (1) whether the impugned order

passed by the District Judge, Nashik on 6 th February 2017 which

rectifies its earlier order is sustainable, and (2) whether

subsequent substantial proceedings in form of HMP 218/09 filed

by the husband before the Family Court is hit by principles of Res

judicata.

11 It is not in dispute that the husband filed an HMP-1

i.e. 218/09 in the Civil Court at Nashik, seeking dissolution of

1 AIR 1976 SC 1569

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marriage on the ground of cruelty and desertion. The said petition

filed by the husband came to be dismissed on 30th August 2010

with costs, and the decree was accordingly drawn. It is pertinent

to note that the said judgment came to be delivered after a full-

fledged conduct of the proceedings by the 2 nd Joint Civil Judge,

Sr.Division, Nashik. After framing of the issues, the parties filed

their affidavits of evidence and were subjected to cross-

examination. Inspite of dismissal of the said proceeding, the

petitioner instituted HMP No.176/12 before the Family Court at

Nashik under Section 13(1)(ia) and 13(i)(b) on 5 th May 2012.

Perusal of the HMP (hereinafter referred to as "HMP-1") would

reflect the incidents of the marital life of the husband and wife

from 5th July 2006 to 4th August 2008 and the respondent sought

to invoke the ground of cruelty and desertion in the HMP-1 and

sought a declaration that the marriage be dissolved. Perusal of

the second HMP (hereinafter referred to as "HMP-2") filed before

the Family Court, Nashik which was numbered as 176/12, would

reveal that the husband had sought dissolution of marriage on the

ground of misbehaviour of the wife in the marital life and her

quarrelsome nature. It refers to certain incidents between the

parties from the date of marriage till 5th August 2008, and it is

alleged in the petition that the wife had inflicted unbearable and

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unparallel cruelty on the petitioner and his family members. In

HMP-2, a statement is made that an earlier HMP was filed which

came to be dismissed on 30th August 2010. The caption 'cause of

action' in the HMP-2 reads thus :

Cause of action : The cause of action to this
petition arose because of consistent and
continued cruelty to which petitioner is subjected
by respondent and also because the respondent
has deserted the petitioner since 5/8/2008 without
any reasonable excuse for a period of more than
two years since before the date of this petition.
And also because the marital tie has broken
irretrievably.

Perusal of both the HMPs filed by the petitioner would

reveal that the cause of action in both the cases is the marital

relationship between the parties from the date of marriage till 5 th

August 2008, when the wife left the company of the husband. In

HMP-1, the husband has narrated certain incidents in this span of

marital life, whereas in the HMP-2, certain other instances have

been cited, which the petitioner had not mentioned in HMP-1

though they were within his knowledge. In any contingency, the

said grounds were available to him, but he had not referred to the

said instances as acts constituting cruelty on the basis of which he

sought a decree for dissolution of marriage. The husband had

chosen to relinquish or omit the instances, which he had

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specifically mentioned in HMP-2. However, what is to be looked

into is the cause of action in both these petitions to find out

whether HMP-2 is hit by the principle of res judicata, since for

attracting the principle of res judicata, the ingredients to be

proved are that the litigation is between the same parties and that

the subject matter of the petition is also identical, and the matter

is finally decided between the parties by a Court of competent

jurisdiction.

12 What is cause of action has been laid down by the

Privy Council in Moh. Khalil Khan Vs. Mahbub Ali Mian 1 where

it is held that the correct test in cases falling under Order II Rule 2

of CPC is whether the claim in the new suit is in fact founded upon

a cause of action distinct from that, which was the foundation for

the former suit. The cause of action was held to be every fact

which will be necessary for the plaintiff to prove a traverse in

order to support his right to the judgment. If the evidence to

support the two claims is different than the cause of action, are

also different. For this purpose, it would be necessary to examine

the proceedings to find out the cause of action involved.

Therefore, the cause of action which is a bundle of

facts necessary to be alleged in order to seek the relief, will have

1AIR (36) 1949 P.C. 78.

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to be carefully seen and in the present case, it is necessary to find

out as to what is the cause of action in both the HMPs. The

Hon'ble Apex Court in the case of Syed Mohd Salie vs. Mohd

Hanifa (supra) has categorically held that the best method to

decide the question of res judicata is first to determine the case of

the parties as put forward in their respective pleadings of their

previous suits and then to find out as to what has been decided by

the judgments which operate as res judicata. Perusal of the

pleadings which have been placed on record in WP No. 6225/17

by the respondent wife would reveal that the pleadings in HMP-1

and 2 are based on the same cause of action, and though the

subsequent event of filing proceedings under Section 498A by the

wife as an additional ground for cruelty had been attempted to be

raised by the husband by way of an amendment, the same came to

be rejected. In such circumstances, this Court is of the clear

opinion that HMP-1 and HMP-2 are based on identical cause of

action and specifically when both the parties agree that they

stayed together only from 5th July 2006 till 27th August 2006, and

thereafter, for a period of one year from 29 th August 2007 to 4th

August 2008 when the wife parted the company of the husband.

HMP-1 is based on the acts of cruelty alleged by the husband to

have been inflicted by the wife during the said period of

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cohabitation and the HMP-2 is also based on the pleadings of

cruelty based on the same period of cohabitation, though with a

slight variation in the acts alleged to be constituting cruelty. In

any contingency, if the husband had omitted to mention some of

the acts in the HMP-1 which were available to him, but if he

chooses to intentionally not rely upon those instances which he

has referred to and mentioned in HMP-2, that do not give him a

distinct cause of action.

13 In order to avoid the attack on the HMP-2 on the

ground of res judicata, the husband adopted a novel way. The

husband had filed an appeal against the judgment of the Civil

Judge, Sr. Division, Nashik in HMP No.218/09 which had

culminated into a decree refusing him the declaration under

Section 13 of the Hindu Marriage Act. The husband preferred an

Appeal vide Appeal No.243/10 against the said judgment. He

moved an application vide Exhibit-17 before the Principal District

Judge, Nashik in Appeal No.243/10 under the caption 'withdrawal

of HMP'. The application is reproduced below :

"Before the Honourable District Judge Nasik
Civil Appeal No.243 of 2010
Appellant - Bhushan D. Kedar
Respondent - Dipti B. Kedar

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Withdrawal of HMP

The appellant most humbly submits that this appeal is
filed against dismissal of HMP No.218/09 which was for divorce.

After filing of the original HMP 218/09, there was further
cruelty to husband so also a new ground of desertion. Therefore,
appellant has filed another HMP before Family Court Nasik for
seeking divorce on the grounds of cruelty, desertion and false
and malacious prosecution and arrest of husband in that
prosecution.

Considering all these circumstances, and as rightly
pointed out by this Hon'ble Court, the appellant is praying for
withdrawal of HMP 218/09.

It is therefore humbly prayed that
(1) The appellant may kindly be permitted to withdraw HMP
No.218/09 and appeal no.243/10.
(2) Any other just and proper order as may be deemed fit.

(S.S.Wagh)
Advocate for appellant"

On the said application, the say of the other side was
called and the respondent wife submitted her say as follows :

SAY

May it please your Honour.

Respondent submits that the appellant already have filed
Divorce Petition before the Hon'ble Family Court it is
pending.

However, they have filed this Civil Appeal. So, it was
not proper legal.

Hence, so, no objection for withdraw this Appeal but
subject to 10,000/- Rs. (ten thousand) costs.

Dt. 26/11/14.

On the said application, the Principal District Judge,

Nashik passed an order on 26 th November 2014. The Court

specifically recorded the objection of the wife for withdrawing the

HMP. The Court observed thus :

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"The application is opposed by the respondent on
the ground that subject to awarding costs
Rs.10,000/- appellant be permitted to withdraw the
Hindu Marriage Petition. No person can be
compelled to prosecute any appeal against his will,
he has every right to withdraw the appeal. But
while granting permission to withdraw the appeal,
the prejudice cause to the other side the amount
spend for defending shall be taken into account.
As another Hindu Marriage Petition for divorce is
filed by the appellant and it is pending before the
Family Court, Nashik, therefore, it is necessary to
permit the appellant to withdraw the Hindu
Marriage Petition No.218/2009. The appellant to
pay costs Rs.2,000/- (Rs.Two thousand only) to the
respondent. The certified copy of the judgment
and decree be handed over to the appellant so also
the original documents filed by the appellant, on
furnishing copies.

14 The wife moved an application in the proceedings

before the Family Court seeking to invoke the bar of res judicata in

filing the HMP-2 which came to be rejected by an order dated 24 th

November 2015 passed by the Judge, Family Court, Nashik. This

order came to be challenged before the Hon'ble High Court in WP

No.10810 of 2015. This Court did not go into the issue about the

principle of res judicata, however, was pleased to observe that the

decree earlier made in HMP-1 no longer survives and there is no

question of applicability of doctrine of res judicata. It is pertinent

to note that the High Court was only dealing with the order passed

by the Judge, Family Court as regards the principles of res judicata

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being made available to HMP-2 and had no occasion to deal with

the order passed on 26th November 2014.

15 The wife, however, realizing the mistake committed

while passing an order below Exhibit-17 on 26 th November 2014

moved an application for modification of the order by preferring

Miscellaneous Application No.222/15.

In the said application, she invited the attention of the

Court to the fact that on passing of the order dated 26 th November

2014, and it being uploaded, it was noted by her that in the open

court, the learned Judge has informed orally that only the appeal

was permitted to be withdrawn and not the HMP. In such

circumstances, she sought clarification of the order dated 26 th

November 2014 which permitted to withdraw the HMP along

with the appeal. She stated that she had moved an application on

18th December 2014, but it was not decided. Resultantly, she

moved the present Miscellaneous Application on 4 th December

2015 for recalling/modifying the order dated 26 th November 2014.

The said application is decided by order dated 21 st January 2016

by which the Principal District Judge set aside the order dated 26 th

November 2014, and restored the Regular Civil Appeal as well as

HMP-1 to the file.

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16 The issue came to be again remanded to the District

Judge at Nashik in pursuance of the directions issued by this Court

on 8th January 2007 in WP No.6174/16 and the Principal District

Judge, on 6th February 2007, allowed the said application filed by

the wife and held that the impugned order passed below Exhibit-

17 is set aside and parties were directed to proceed as from that

stage onwards.

17 A perusal of Exhibit-17 moved by the husband reveals

that the application stated that the husband had filed HMP

No.218/09 for divorce. However, on filing of the said HMP, a new

ground of desertion became available, and therefore, he filed

another HMP seeking divorce on the ground of cruelty and arrest

of the husband in that proceedings under Section 498A. He had

sought withdrawal of HMP 218/09 and also withdrawal of Appeal

243/10 by the said application. The wife had submitted her say by

stating that the husband has already filed another divorce petition

before the Family Court. She granted no objection for withdrawal

of the Appeal, but subject to costs of Rs.10,000/-. The order dated

26th November 2014 passed by the Principal District Judge,

Nashik, however reveals that the permission is granted to

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withdraw the HMP 218/09. The Court wrongly observed that the

application is opposed by the wife on the ground that subject to

awarding costs of Rs.10,000/-, the HMP may be permitted to be

withdrawn. However, the Principal District Judge has completely

fell into error in making such observations. The respondent wife

did not grant her objection for withdrawal of HMP, and in any

contingency, she could not have, since the HMP-1 was decided by

the Court on merits and dismissed against the husband after

leading of evidence by the parties and a decree was drawn

accordingly. The proceedings which were sought to be withdrawn

and could have been permitted to withdraw was only the appeal

and the Principal District Judge, Nashik has rightly observed that

no person can be compelled to prosecute any Appeal against his

will and he has right to withdraw the appeal and also directed

payment of costs of Rs.2,000/- to the wife. However, there was no

question of withdrawal of HMP since for that, the wife had not

granted any no objection.

18 By the impugned order, the Principal District Judge,

Nashik, considered the application filed under Section 152 and

held that the error needs to be rectified. Though the specific

objection of the counsel for the husband was that it was not an

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Tilak 23/28 WP-4011-6225-17(J)

arithmetical or clerical mistake which could be corrected under

section 152 of CPC, the Court assumed jurisdiction under Section

151 of CPC and in any contingency, when it had arrived at a clear

opinion that a gross error had occurred in permitting to allow the

HMP, it sought to rectify the error by invoking the powers under

Section 151 of the CPC. The Hon'ble Judge also noted that

Section 151 was recorded in the title of the application, and in any

contingency, the Court was of the opinion that the caption under

which the jurisdiction is invoked is not relevant to do substantial

justice. The impugned order clearly records that the purport of

section 151 being the inherent powers of the Court is not effected

or limited by any provisions in the Code and the Court in exercise

of the inherent powers may pass such order as it may deem

necessary to meet the ends of justice, or to prevent the abuse of

process of the Court.

It is true that Section 151 of CPC which is the

inherent power of the Court is intended to secure the ends of

justice and the ends of justice would extend to the litigating

parties before the Court and should not go to the benefit of only

one of the party. However, when the Court notices that it has

committed a gross error and the said error was brought to the

notice of the Court, the Court thought it fit to invoke its inherent

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Tilak 24/28 WP-4011-6225-17(J)

jurisdiction. The contention of the learned counsel for the

husband that it amounted to reviewing its own order, and

therefore, the remedy of appeal could have been invoked which is

permissible under the statute, is not a justiceable argument since

Section 151 itself begins with the words "Nothing in this Code

shall be deemed to limit or otherwise affect the inherent powers of

the Court to make such orders, as may be necessary for the ends of

justice or to prevent abuse of the process of the Court". No fault

can be found with the impugned order passed by the Principal

District Judge, Nashik who has noted that the order which was

passed below Exhibit 17 was not sustainable, and the Court was of

the opinion that though the order could not have been corrected

under Section 152, the Court has assumed its inherent jurisdiction

and exercised the same by correcting the order passed by it on 26 th

November 2014. In any contingency, it is a settled proposition of

law that the proceedings which could had been put to rest and in

the present case, the HMP-1 on the basis of which a decree was

drawn could not be permitted to be withdrawn. It can be

rectified/corrected in an appeal and that appeal can be

withdrawn. However, withdrawal of the said Appeal would not

nullify the effect of a decree pronounced by a Court of competent

jurisdiction and this is the error which was committed by order

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Tilak 25/28 WP-4011-6225-17(J)

dated 26th November 2014 which is rectified on an application

preferred for review, by passing the impugned order on 6 th

February 2017. In such circumstances, the order impugned in WP

4011 of 2017 dated 6th February 2017 do not suffer from any

illegal infirmity and needs to be upheld.

19 Further, in WP No.6225/2017, the wife has assailed

the impugned order dated 7th March 2017 and raised an issue of

res judicata. As noted in the para above, the ground of cruelty

which has been raised in the HMP-1 is identical to the one which

has been raised in the HMP-2, and since this Court has arrived at a

conclusion that the cause of action on the basis of which HMP-1 is

filed, is similar to the cause of action on the basis of HMP-2 is

filed. In this backdrop, this Court is of the clear opinion that it will

attract the principles of res judicata since the essential

characteristics of principles of res judicata have been recognized as

(i) the litigation between the parties must be same (ii) the subject

matter of the suit must be identical (iii) that the matter must be

finally decided between the parties (iv) that the suit must be

decided by the Court of competent jurisdiction.

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 Tilak                                   26/28                   WP-4011-6225-17(J)

20 On perusal of the pleadings in HMP-1 and HMP-2, it is

clear that all the ingredients of the principles of res judicata

satisfied and in such circumstances, the observation made by the

Judge, Family Court in the impugned order that the desertion and

cruelty are continuous grounds giving fresh cause of action for the

spouse to institute fresh proceedings is not applicable in the

present case. The cruelty alleged in the HMP-1 is based on the

same set of facts which are found in the pleadings canvassed in

HMP-2. The Court of competent jurisdiction has, after due

consideration of the material placed before it, rejected the ground

of cruelty and did not find favour with the said ground and also

did not find favour on the ground of desertion.

In any contingency, when by the impugned order

passed by the Principal District Judge, Nashik on 21 st June 2016,

the HMP-218-09 as well as the Appeal filed in the District Court

vide Appeal No.243/10 have been restored and directed to be

proceeded on its own merits, the said proceedings being made

alive, the HMP-2 filed before the Family Court, is not maintainable.

The HMP-2 which is filed on the basis of same cause of action

seeking a decree for divorce cannot be sustained since the decree

passed in HMP-1 is revived and continues its existence, along with

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Tilak 27/28 WP-4011-6225-17(J)

the proceedings in Appeal. The impugned order passed by the

Judge, Family Court on 7th March 2017 which is assailed in WP

6225/17 rejecting the application filed by the wife by invoking

principle of res judicata cannot be sustained. The said order

passed on 7th March 2017 do not take into consideration the order

passed by the Principal District Judge, Nashik who has rectified his

earlier order and restored the HMP-1 as well as the Appeal. In the

present scenario, the rejection of the application is, therefore,

without consideration of the aforesaid facts and therefore, the

order dated 7th March 2017 is liable to be set aside.

In any contingency, since the HMP-218/09 being

decreed against the husband, and since there is no stay granted to

such a decree, the Family Court could not have rejected the

application filed by the wife claiming res judicata. The decree

passed in HMP 218-09 refuses to grant divorce to the husband on

the ground of cruelty and desertion. As long as the said decree is

not set aside, there is no question of the second HMP being dealt

with by the Family Court at Nashik in form of second HMP. In such

circumstances, the impugned order passed by the Family Court on

7th March 2017 rejecting the application of the petitioner is

quashed and set aside, being unsustainable in the peculiar facts of

the case.

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 Tilak                                   28/28                  WP-4011-6225-17(J)

21 In light of the aforesaid discussion, Writ Petition

No.4011/17 assailing the order dated 21 st January 2016 passed by

the District Court Nashik is dismissed. Writ Petition No.6225/17

challenging the order dated 7th March 2017 passed by the Judge,

Family Court is allowed.

In any contingency, since the HMP-1 and the Appeal

filed against the said judgment are now restored, and are directed

to proceed by the impugned order passed by the Principal District

Judge, the Family Court would deal with the second HMP in the

backdrop of the existing decree in HMP-1 declining Divorce Decree

on ground of cruelty and desertion. As far as ground of desertion

is concerned, the Court is at liberty to consider whether a fresh

cause of action would survive in HMP-1, since the parties are

residing separately since more than one year.

Writ Petitions are allowed in the aforesaid terms.

Rule is made absolute accordingly.

No order as to costs.

(BHARATI H. DANGRE, J)

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