TMI Blog1992 (8) TMI 310X X X X Extracts X X X X X X X X Extracts X X X X ..... deprived her of the company of her then seven month old minor child between the period 10-11-1991 and 2-12-1991 and had in fact sought to leave the country with the minor child on the night of 8-12-1991 which the appellant with the intervention of the police and pursuant to a complaint to the police was able to stop at a last minute. She said in her return as follows : .....In fact, the respondent with the minor child had gone to the airport to leave the country and was stopped by the airport staff from checking in for the flight on account of the police complaint and it was only pursuant thereto that the applicant was able to recover the custody of the minor child. 2. In his reply to the return of Radhika, Konel, however, said, I submit that during the period November 10, 1991 to December 2, 1991 the minor child was under the custody of the respondent herein. The events that had happened during this period have been stated by me in my statement made to the police as reply to the FIR filed by the applicant. I wish to state that on 7-11-1991 I, by chance ascertained that my wife was expecting a child. This was the second child. On Friday the 8th November 1991 the pregnan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or Friday the 6th December 1991. While so, taking advantage of the fact that I was taking the child to Singapore she made a false complaint to the police as if I am taking the child out of India for ever and she made a false complaint to the police on 2nd December 1991 presumably under the Dowry Prohibition Act so that the police will take immediate action. The FIR filed with the police is full of false statements and for the first time the case of illtreatment by my parents and demand for jewellery and cash had been stated. 3. It has, however, transpired that Konel, who is an Indian born has, however, become a citizen of the United States of America. He intended to visit Singapore with the child and that a Police complaint was filed which stopped him from taking away the child to Singapore, according to him for a temporary period; according to Radhika with a view to taking away the child from her permanently. The filing of the case for divorce in the family Court at Bombay on 6-12-1991 and the order dated 11-12-1991 are such facts that are not in doubt, according to Konel, however, he did not know about the filing of the case in the Family Court at Bombay or any order passed i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondent be ordered and directed to return all the clothes and personal effects, ornaments and silverware of the petitioner which are in the matrimonial home; (j) that ad interim and interim reliefs in terms of prayer (c) to (i) hereinabove. (k) and for such other and further reliefs as this Hon'ble Court may deem fit and proper in the circumstances of the case. It is significant to notice that the main relief is for divorce. Interim custody of the child is only ancillary to the main relief. On the other hand original petition No. 694 of 1991 filed by the husband is for being appointed as the guardian of the minor's person and property. Therefore, it is plain that the questions involved in the Original Petition No. 694 of 1991 of this Court and the proceedings in the Family Court cannot be the same although there may be a little overlapping in the matter of evidence to be adduced in both. Therefore unless the matter in issue in an earlier proceeding is identically in issue in the later proceeding, there cannot be a stay of the later proceeding. That is the principle under S. 10 Civil Procedure Code which whether applicable to the proceedings in quest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the stay of trial of a suit is not a judgment within the meaning of that term in Cl. 15 of the Letters Patent and would, therefore, be not appealable. The Full Bench of this Court in this behalf mainly relied upon a judgment of the Supreme Court in Asrumati Debi v. Rupendra Deb, in which two tests have been laid down to find out whether an adjudication in a particular proceeding is a judgment or not; if they are so, (1) whether it terminates the suit or proceeding and (2) whether it affects the merits of the controversy between the parties in the suit itself. 6. Learned counsel for the respondent has cited, however, another judgment of this court in Angadu Narasimhalu Chettier v. Selvarajan, (1991) 2 Mad LJ (NRC) page 1 (DB) in which an order of transfer of a suit from one Court to another was sought to be challenged and in which case reliance was placed upon the judgment of the Supreme Court in Asrupathi Debi's case, (supra). In that case, the Division Bench observed, In yet another decision Govindarajulu v. Devar and Co., , Raja-manner, C.J., and Venkatarama Aiyar, J., had to consider the maintainability of an appeal under Cl. 15 of the Letters Patent against an order t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gone into and it is stated in no uncertain terms that an order staying or refusing to stay a suit under Section 10, C.P.C. is appealable under Cl. 15 of the Letters Patent. There is, however, no reference in this judgment of the Supreme Court to the Full Bench judgment of this Court in the case of Central Brokers', (supra), (supra) which has been relied upon by the Full Bench of this Court as stating the law on the subject, has been referred to, and the Supreme Court has, said as follows (Paras 7, at p. 1789 of AIR) : This Court also has incidentally gone into the interpretation of the word 'judgment' and has made certain observations but seems to have decided the cases before it on the peculiar facts of each case without settling the conflict or the controversy resulting from the divergent views of the High Courts. This Court, however, has expressed a solemn desire and a pious wish that the controversy and the conflict between the various decisions of the High Courts has to be settled once for all some time or the other. In this connection, in Asrumati Debi v. Kumar Rupendra Deb Raikot, , this Court observed as follows (at p. 200) :-- In view of this wide dive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der and not a narrower sense. In other words, a judgment can be of three kinds :-- (1) A final judgment A judgment which decides all the questions or issues in controversy so far as the trial Judge is concerned and leaves, nothing else to be decided. This would mean that by virtue of the judgment, the suit or action brought by the plaintiff is dismissed or decreed in part or in full. Such an order passed by the trial Judge indisputably and unquestionably is a judgment within the meaning of the Letters Patent and even amounts to a decree so that an appeal would lie from such a judgment to a Division Bench. (2) A preliminary judgment-- This kind of a judgment may take two forms-- (a) where the trial Judge by an order dismisses the suit without going into the merits of the suit but only on a preliminary objection raised by the defendant or the party opposing on the ground that the suit is not maintainable. Here also, as the suit is finally decided one way or the other, the order passed by the trial Judge would be a judgment finally deciding the cause so far as the trial Judge is concerned and, therefore, appealable to the larger Bench, (b) Another shape which a preliminary judgm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to him is not direct or immediate but of a minimal nature and rather too remote because the plaintiff still possesses his full right to show that the defence is false and succeed in the suit. Thus, such an order passed by the trial Judge would not amount to a judgment within the meaning. of clause 15 of the Letters Patent but will be purely an interlocutory order. Similarly, suppose the trial Judge passes an order setting aside an ex parte decree against the defendant, which is not appealable under any of the clauses of O. 43, R. 1 though an order rejecting an application to set aside the decree passed ex parte falls within Order 43, Rule 1, clause (c) and is appealable, the serious question that arises is whether or not the order first mentioned is a judgment within the meaning of Letters Patent. The fact, however, remains that the order setting aside the ex parte decree puts the defendant to a great advantage and works serious injustice to the plaintiff because as a consequence of the order, the plaintiff has now to contest the suit and is deprived of the fruits of the decree passed in his favour. In these circumstances, therefore, the order passed by the trial Judge settin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rescinding leave of the trial Judge granted by him under Cl. 12 of the Letters Patent, (5) An order deciding a preliminary objection to the maintainability of the suit on the ground of limitation, absence of notice under Section 80, bar against competency of the suit against the defendant even though the suit is kept alive; (6) An order rejecting an application for a judgment on admission under 0. 12, Rule 6; (7) An order refusing to add necessary parties in a suit under Section 92 of the Code of Civil Procedure; (8) An order varying or amending a decree; (9) An order refusing leave to sue in forms pauperis; (10) An order granting review; (11) An order allowing withdrawal of the suit with liberty to file a fresh one; (12) An order holding that the defendants are not agriculturists within the meaning of the special law; (13) An order staying or refusing to stay a suit under Section 10 of the Code of Civil Procedure; (14) An order granting or refusing to slay execution of the decree; (15) An order deciding payment of COURT-fees against the plaintiff. Item No. 13 is an order staying or refusing to stay a suit under Section 10, C. P.C., the order impu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dge has said that the questions involved in the Original Petition No. 694 of 1991 of this Court and the proceedings in the Family Court cannot be the same although there may be a little overlapping in the matter of evidence to be adduced in both. We have, however, noticed that Radhika has moved the Family Court at Bombay in a suit for divorce which is under Section 13(1A) of the Hindu Marriage Act, 1955 and a declaration that she is entitled to the custody of her minor child. The Hindu Marriage Act, 1955 has got a salutary provision in Section 26 thereof which reads as follows : In any proceeding under this Act, the Court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, after the decree, upon application by petition for the purpose, make from time to time, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceeding for obtaining such decree were still pendi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its and to determine what is the matter directly and substantially in issue in the two suits. Having ascertained this, the Court has further to consider whether or hot the matter directly and substantially in issue in both the suits is the same. The test to be applied for this purpose is not whether the cause of action or the reliefs claimed in both the suits are the same, nor whether one of the issues arising in both of them is the same. The test is whether the decision of the matter directly and substantially arising in the former suit will decide not merely that suit, but will also operate as res judicata in the subsequent suit between the same parties. It will be noticed that the expression 'directly and substantially in issue', which has been employed in S. 10, is also to be found in S. 11 of the Code. While S. 10 relates to res sub judice that is, a matter which is pending a judicial adjudication, S. 11 relates to res judicata, that is to say, a matter already adjudicated upon by a competent Court. Whereas S. 10 bars the trial of a suit in which the matter directly and substantially in issue is pending adjudication in a previous suit. Section 11 bars the trial of a su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... guardian appointed or declared by a Court, and (iv) a person empowered to act as such by or under any enactment relating to any Court of Wards; and in S. 4(c) 'natural guardian' to mean any of the guardians mentioned in S. 6, namely, in respect of the minor's person as well as in respect of the minor's property, in the case of a boy or an unmarried girl -- the father, and after him, the mother; provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother; in the case of an illegitimate boy or an illegitimate unmarried girl -- the mother and after her, the father and in the case of a married girl -- the husband. The powers of the natural guardian are circumscribed by the provisions in S. 8 of the said Act which besides other things, states that the Guardians and Wards Act, 1890, shall apply to and in respect of an application for obtaining the permission of the Court under sub-sec. (2) in all respects as if it were an application for obtaining the permission of the Court under S. 29 of the Act (VIII of 1890) and in particular proceedings in connection with the application shall be deemed to be proceedings under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lved in O.P. No. 694 of 1991 in this Court and the proceedings in the Family Court cannot be the same although there may be a little overlapping in the matter of evidence to be adduced in both. 23. Since we are of opinion that the suit in this court should be stayed until the disposal of the issue as to the custody of the child in the Family Court at Bombay we have no hesitation in holding that any direction on the application of the respondent-husband as to the right of the respondent visiting the child or to take away the child as long as he desired for the outings subject to his leaving the child in the custody of the wife while returning from Bombay will not be justifiable. We have no reason to think that the Family Court where the issue is pending shall not exercise its judicial discretion properly and shall not thus bestow all relevant considerations to the rights of the respondent-husband vis-a-vis that of the wife (appellant) as well as their liabilities and responsibility. It shall always be open to any of the parties including the respondent to move for appropriate directions before the Family Court where the suit for divorce in which a decree for custody of the child ..... X X X X Extracts X X X X X X X X Extracts X X X X
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