Yuvraj Kashwaha vs Nirashpati

R.S. Garg, J.—The appellant, being aggrieved by the order, dated 7-5-1988, passed in Misc. Judicial Case No. 40 of 1984, by the District Judge, Ambikapur, holding him guilty of breach of the injunction order and sentencing him to undergo one month''s civil imprisonment, has filed the present appeal. Brief facts, giving rise to the appeal are as follows. The plaintiff-respondent, Smt. Nirashpati, filed Civil Suit No. 10-A of 1983 in the Court of the District Judge, Ambikapur, seeking an injunction against the defendant-appellant that the appellant be restrained from marrying one Shivmangli. On 16-5-1983, an ex parte interim injunction was granted against the present appellant. It was alleged that despite the order of injunction, the appellant married the said Shivmangli on 20-5-1983. The said application for grant of injunction was dismissed as infructuous on 12-3-1985. Thereafter, an application under Order 39, Rule 2A of the Civil Procedure, Code was filed by Smt. Nirashpati on 10.12.1984, alleging therein that despite the order of injunction, the appellant had married Shivmangli on 20-5-1983 and for committing breach of the order, the appellant be punished in accordance with law.

The appellant in reply to the application submitted that neither he had committed breach of the order, nor he had married Shivmangli and, therefore, he requested that the application be rejected. The Trial Court record evidence of the parties and after hearing them, held that the appellant had committed breach of the order dated 16-5-1983 and was, therefore, liable to be punished and ordered him to be lodged in the civil prison for a period of one month.

Being aggrieved by this order, the appellant has preferred this appeal. It was contended by the Counsel for the appellant that in Civil Suit No. 38-A. of 1984 (Smt. Nirashpati v. Yuvraj), which wan filed u/s 9 of the Hindu Marriage Act, for restitution of conjugal rights, an allegation was made against the appellant that despite the injunction order, dated 16-5-1983, the appellant had married Shivmangli and the said marriage was void and may be declared as void. The Trial Court in its judgment, dated 27-7-1987 in Civil Suit No. 38-A of 1984. decided the issue in favour of the appellant and has specifically held that there was no evidence in support of issue No. 3, and, therefore, it was negatived, meaning thereby that the appellant did not marry Shivmangli. In view of the said decision, it was contended that the findings were res judicata between parties and therefore, after the said judgment dated 27-7-1987, the learned Trial Court could not held that the appellant married Shivmangli and committed breach of the injunction.

Contesting the allegations, it was submitted on behalf of the respondent that the proceedings were different and, therefore, the Court below was justified on the basis of the evidence adduced before it, in holding that the appellant committed breach of the injunction order and, therefore, he was rightly punished.

Once, by a Competent Court of jurisdiction, it has been held that the appellant did not marry Sivmangli, then the said finding would be res judicata between the parties and. therefore, there cannot be a second trial. It was not disputed before me that the judgment in C.S. No. 38-A/84 has become final. In view of these circumstances, when a finding has already been recorded in C.S. No. 38-A/84 that the appellant has not married Shivmangli, then the continuation of the proceedings in the present Misc. Judicial Case No. 40 of 9984 was virtually an abuse of law. The proceedings could not be continued and were liable to be dropped. However, in view of the above facts, the order passed by the learned Court below is liable to be set aside.

The appeal is allowed. Accordingly, the order passed by the Court below is set aside. No order as to costs.