IN THE HIGH COURT OF JUDICATURE AT PATNA

CIVIL MISCELLANEOUS JURISDICTION No.207 of 2019

Smt. Priyanka Srivastava (Female) aged about 40 years wife of Bipin Bihari
Lal Daughter of Sachindra Nath Srivastava Resident of Mohalla- Nirala
Nagar, Garwar Road, Main Post Office- Balia, P.S.- Balia, District- Balia
(U.P.). At present- Awadhesh Abha Niwas, Behind C.M.C. Kali Asthan,
Sasaram, P.S. Sasaram, District- Rohtas.

… … Petitioner
Versus

Bipin Bihari Lal age 45 years Male son of Late Ujagir Prasad Resident of
Mohalla- Mishra Bazar (Behind Rai Saheb Hotel), Gajipur, P.S. Gajipur,
District- Gajipur (U.P.).

… … Respondent

Appearance :

For the Petitioner : Mr.Arun Kumar Singh, Advocate
For the Respondent/s : Mr.

CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
ORAL JUDGMENT
Date : 11-04-2019

Heard learned counsel for the petitioner.

2. This application under Article 227 of the

Constitution of India has been filed by the petitioner for setting

aside the order dated 13.02.2018 passed by the learned Principal

Judge, Family Court, Rohtas in Guardianship Case No.01 of 2014

whereby he has rejected the petition dated 07.10.2015 filed under
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Order 7 Rule 11 and Section 11 of the Code of Civil Procedure (for

short ‘CPC’).

3. Learned counsel for the petitioner has

submitted that the order impugned is perverse. The court below

failed to appreciate that the guardianship case filed by the

respondent was barred under Section 11 of the CPC. Having

regard to Section 11 of the CPC, the court below ought to have

rejected the plaint at the threshold, as the matter had already been

decided in a proceeding by the Hon’ble Allahabad High Court. He

has contended that the respondent ought not to have been allowed

to re-agitate the matter again and again by abusing the process of

law.

4. At this stage, it would be apt to take brief note

of the facts of the case. The petitioner was married to respondent

in December, 2003. From the said wedlock, a male child was born

on 30.11.2004. Subsequently, since there was matrimonial discord

and incompatibility, the petitioner filed a case, inter alia, under

Section 498 A of the Indian Penal Code against the respondent.

She also filed Maintenance Case No. 25 of 2009 under Section 125

of the Code of Criminal Procedure at Sasaram. The respondent

filed a Writ Petition No.14722 of 2010 before the Allahabad High

Court. The said writ petition was dismissed vide order dated
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22.03.2010. The operative part of the order dated 22.03.2010 is

extracted hereinbelow:-

“The petitioner no.2, corpus, aged about 5
years, son of the petitioner no.1 is in the custody
of the respondent no.4, who is mother of the
child and it cannot be said that child is under
illegal detention.

Accordingly, the petition lacks merit and
is dismissed.

However, it is open for the petitioner no.
1 to approach forum for the relief as claimed in
this petition, if so advised.”

Thereafter, the respondent filed Guardianship Case No.

1 of 2014 in the court of Principal Judge, Family Court, Rohtas at

Sasaram seeking custody of the minor Yash Shrivastava. The

petitioner filed an application under Order 7 Rule 11 and Section

11 of the CPC and prayed to reject the plaint of Guardianship Case

No. 1 of 2014 on the ground that the suit is hit by the principle of

res judicata. Having heard learned counsel for the parties, the

learned Principal Judge Family Court, vide impugned order dated

13.02.2018, rejected the application filed by the petitioner.

5. Being aggrieved by the aforesaid order dated

13.02.2018, the instant civil miscellaneous case has been filed

before this Court.

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6. Section 11 of the CPC reads as under:-

“11. Res judicata.–No Court shall
try any suit or issue in which the matter directly
and substantially in issue has been directly and
substantially in issue in a former suit between
the same parties, or between parties under
whom they or any of them claim, litigating
under the same title, in a Court competent to try
such subsequent suit or the suit in which such
issue has been subsequently raised, and has
been heard and finally decided by such Court.”

7. In order to constitute res judicata, the

following ingredients are essential; (i) there must be two suits-one

former suit and the other subsequent suit; (ii) the matter directly

and substantially in issue must be the same either actually or

constructively in both the suits; (iii) the matter directly and

substantially in issue in the subsequent suit must have been heard

and finally decided by the Court in the former suit; (iv) the parties

to the suits or the parties under whom they or any of them claim

must be the same in both the suits; and (v) the Court which

decided the former suit must be competent to try the subsequent

suit.

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8. If these requisites are fulfilled, only then it can

be said that the subsequent suit is barred by the principal of res

judicata.

9. The object behind the doctrine of res judicata

is that once matter has been determined in a former proceeding, it

should not be open to the parties to re-agitate the matter again and

again.

10. In the instant case, as seen from the pleading of

the petitioner as well as the order passed by the Allahabad High

Court in Writ Petition No.14722 of 2010, it would be manifest

that there is no similarity between the case filed before the

Allahabad High Court and the suit brought before the Principal

Judge, Family Court, Rohtas. The suit before the Allahabad High

Court was for production of the corpus claimed to be in illegal

detention. Having considered that the child aged about 5 years is in

custody of mother, the Allahabad High Court dismissed the writ

petition filed by respondent giving liberty to the respondent to

approach the appropriate forum for the custody of the child.

11. The suit filed before the Principal Judge,

Family Court, Rohtas is under Section 25 of the Guardians and

Wards Act, 1890. Said Section 25 provides that if a ward leaves or

is removed from the custody of a guardian of his person, the Court,
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if it is of opinion that it will be for the welfare of the ward to return

to the custody of his guardian, may make an order for his return

and for the purpose of enforcing the order may cause the ward to

be arrested and to be delivered into the custody of the guardian.

12. The word ‘guardian’ has been defined under

Section 4(2) of the Guardians and Wards Act, 1890 as under:-

“4(2) “guardian” means a person having
the care of the person of a minor or his property,
or of both his person and property.”

13. Section 4(3) of the said provision defines

‘ward’. It states that ‘ward’ means a minor for whose person or

property, or both, there is a guardian.

14. The father claiming himself to be guardian of a

minor child has a right to file a suit under Section 25 of the

Guardians and Wards Act, 1890.

15. Having regard to the facts and circumstances

of the case, it is quite clear that there is neither existence of two

suits nor the proceeding before the Principal Judge covers the

matter involved in the writ petition nor the issues raised by the

respondent before the Principal Judge has ever been decided by the

writ court. Hence, the suit in question is neither barred by the
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principle of res judicata nor the same requires to be rejected at the

threshold.

16. In that view of the matter, the order passed by

the court below is neither without jurisdiction nor perverse.

17. Having found no error with the order

impugned, I see no merit in this application. It is dismissed,

accordingly.

(Ashwani Kumar Singh, J)
kanchan/-

AFR/NAFR NAFR
CAV DATE NA
Uploading Date 16.04.2019
Transmission Date NA