The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 05-Jan-2024 13:57:02 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 35543 OF 2023 Sushma Bhoi @ Sushma Barik Petitioner Mr. Satyanarayan Mohapatra, Advocate …. Dr. Hrushikesh Barik …. Opp. Party -versus-
Legal Reasoning
Mr. Sidharth Mishra, Advocate on behalf of Mr. Agnihotra Sahu, Advocate (For Caveator/Opposite Party) CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 04.01.2024 3. 1. This matter is taken up through hybrid mode. 2. The Petitioner in this writ petition seeks to assail the order dated 14th February, 2023 (Annexure-7) passed in MAT Case No.71/67 of 2021, wherein learned Judge, Family Court, Bargarh while adjudicating the petition to hear the issue of res judicata as preliminary issue, recorded finding on the said issue. 3. Mr. Mohapatra, learned counsel for the Petitioner submits that the Opposite Party had filed Civil Proceeding No.157 of 2014 with a prayer to dissolve the marriage with the Petitioner by a decree of divorce. The said civil proceeding was initially filed before learned Judge, Family Court, Bhubaneswar. Subsequently, pursuant to the direction of this Court in TRP(C) No.83 of 2014, the civil proceeding was transferred to the Court of learned Civil Judge (Senior Division), Bargarh. The said proceeding was dismissed on merit. Assailing the same, the Opposite Party preferred MAT Appeal No.2 of 2016 before learned District Judge, Bargarh, which was dismissed vide judgment dated 17th February, 2021. However, the Opposite Page 1 of 5 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 05-Jan-2024 13:57:02 // 2 // Party preferred MATA No.30 of 2021 against the said judgment, which was subsequently withdrawn on 1st September, 2021. After withdrawal of the appeal, the Opposite Party again filed the present MAT Case for the self-same relief. After issues were framed, the Petitioner filed an application under Order XIV Rule 2 CPC to decide the issue of res judicata as a preliminary issue. Learned Judge, Family Court, Bargarh while adjudicating the petition, erroneously exceeded its jurisdiction and recorded finding on the said issue of res judicata holding that the present proceeding is not hit by the principles of res judicata. Hence, this writ petition has been filed assailing the said order under Annexure-7. 4. Mr. Mohapatra, learned counsel for the Petitioner submits that when prayer with regard to dissolution of marriage between the parties has already been set at rest, a subsequent proceeding for dissolution of marriage by a decree of divorce is not maintainable, as it is hit by principles of res judicata. Accordingly, an application was filed under Order XIV Rule 2 CPC to decide the issue of res judicata as a preliminary issue. Learned Judge, Family Court was required to answer as to whether the issue could be heard as a preliminary issue or not. But exceeding its jurisdiction, learned Judge, Family Court recorded finding on the said issue, which is prejudicial to the Petitioner, more particularly, when evidence has not yet been led in the matter. He, therefore, prays for setting aside the impugned order under Annexure-7 and to direct learned Judge, Family Court, Bargarh to hear the issue of res judicata as preliminary issue. Page 2 of 5 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 05-Jan-2024 13:57:02 // 3 // 5. Mr. Mishra, learned counsel being authorized by Mr. Sahu, learned counsel for the Opposite Party vehemently objects to the same. It is his submission that issue of res judicata cannot be decided as a preliminary issue as it is a mixed question of fact and law. It is his submission that an issue of law can only be decided as preliminary issue. But, when the issue involves mixed question of fact and law, the same cannot be decided as a preliminary issue. The issue has to be decided along with other issues in the suit or proceeding. It is further submitted that an issue, which would arose out of undisputed facts, may be decided as a preliminary issue. But the situation is not such in the present case. He also relied upon the decision in the case of Sathyanath and another –v- Sarojamani, reported in (2022) 7 SCC 644, wherein it is held as under: in para 66.1 “32. A perusal of the said judgment would show that only Issues 5 and 6 were decided relating to res judicata and limitation as preliminary issues by judgment dated 3-2-2006. This Court set aside the finding on the preliminary issue by judgment dated 23-9-2021 [Jamia Masjid v. K.V. Rudrappa, (2022) 9 SCC 225 : 2021 SCC OnLine SC 792] i.e. almost more than 15 years later when the matter was remanded back to the trial court. The absence of the decision on all issues has necessitated the matter to be remanded back, defeating the object of expeditious disposal of lis between the parties. The conclusion in Jamia Masjid case [Jamia Masjid v. K.V. Rudrappa, (2022) 9 SCC 225 : 2021 SCC OnLine SC 792] is that the plea of res judicata in appropriate cases may be determined as preliminary issue when it is neither a disputed question of fact nor a mixed question of law and fact. Such finding is what this Court held in Ramesh B. Desai [Ramesh B. Desai v. Bipin Vadilal Mehta, (2006) 5 SCC 638] . 33. We find that the order of the High Court to direct the learned trial court to frame preliminary issue on the issue of res judicata is not desirable to ensure speedy disposal of the lis between parties. Order 14 Rule 2 of the Code had salutary object in mind that mandates the court to pronounce judgments on all issues subject to the provisions of sub-rule (2). However, in case where the issues of both law and fact arise in the same suit and the court is of the opinion that the case or any part Page 3 of 5 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 05-Jan-2024 13:57:02 // 4 // thereof may be disposed of on an issue of law only, it may try that suit first, if it relates to jurisdiction of the court or a bar to the suit created by any law for the time being in force. It is only in those circumstances that the findings on other issues can be deferred. It is not disputed that res judicata is a mixed question of law and fact depending upon the pleadings of the parties, the parties to the suit, etc. It is not a plea in law alone or which bars the jurisdiction of the court or is a statutory bar under clause (b) of sub-rule (2).” He, therefore, submits that the Court has to decide all the issues after receiving evidence from the parties. He further submits that learned Judge, Family Court has, in fact, exceeded its jurisdiction in recording finding on the issue of res judicata. It is, however, submitted that since the trial of the suit has already commenced, parties may participate in the trial of the suit by adducing evidence and the issue of res judicata should be decided along with other issues basing on the materials available on record without being influenced by the observation/finding in the impugned order under Annexure-7. He, therefore, submits that the impugned order under Annexure-7 should be modified to the aforesaid extent. 6. Considering the submissions made by learned counsel for the parties and on perusal of the record, more particularly, the order under Annexure-7, it appears that learned Judge, Family Court has acted illegally in recording the finding on the issue of res judicata when it was only required to decide as to whether the issue of res judicata could be adjudicated as a preliminary issue or not. No doubt, the issue of res judicata involves mixed question of fact and law. Thus, it cannot be decided as a preliminary issue. 7. As it is submitted by learned counsel for the Opposite Party that trial of the suit has already commenced, this Court Page 4 of 5 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 05-Jan-2024 13:57:02 // 5 // while holding that the finding recorded by learned Judge, Family Court on the issue of res judicata is an outcome of improper exercise of jurisdiction, this Court directs that the parties to participate in the trial of the MAT case by adducing evidence and the issue of res judicata shall be decided along with other issues on the basis of material available on record without being influenced by any observation made in the impugned order under Annexure-7. 8. With the aforesaid observation and direction, the writ petition is disposed of. 9. Interim order dated 2nd November, 2023 passed in I.A. No.17185 of 2023 stands vacated. Urgent certified copy of this order be granted on proper application. ms (K.R. Mohapatra) Judge Page 5 of 5