MISCELLANEOUS APPLICATION 970 of 2009 on 17 December 2012

1. Whether Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporters or not?

3. Whether the judgment should be reported in the Digest?

Ajay Tewari, J. (Oral):

CM No. 14302-C of 2012

This is an application for fixing an actual date of hearing in thepresent appeal on the ground that the applicant-appellant is an old lady of86 years of age and is seriously ill.

For the reasons recorded in the application, the same is allowed.

With the consent of both the learned counsel for the appellant and learned DAG, the appeal is taken up today itself for arguments.

RSA No. 970 of 2009

This appeal has been filed against the judgment of the Lower Appellate Court reversing that of the Trial Court and thereby dismissing thesuit of the appellant. The appellant had originally filed a suit claiming thather husband Sh. Jagdish Kumar son of Sh.Shankar Dass was a freedomfighter and she should be granted all benefits being the wife of a freedomfighter.

The plea of the respondents was that earlier her husband hadfiled a suit seeking the same declaration but the said suit was dismissed. TheTrial Court held that the appellant had produced two documents viz. Ex.P6which was a letter from the Deputy Commissioner, Faridkot dated16.07.1987 wherein it had been certified that Jagdish Kumar had spent oneyear in jail during the freedom movement and Ex.P7 which was a certificatefrom the Superintendent Central Jail, Bathinda also certifying that JagdishKumar had spent one year in jail during the freedom movement. As regardsthe plea that her husband had also filed the suit which was dismissed, theCourt ignored it on the ground that the pleadings thereof were not on recordso as to enable the Court to come to a conclusion that the suit was barred bythe principle of res judicata. Before the Lower Appellate Court theappellant stated that she would not press her claim for pension but she couldnot be denied the status of being the wife of a freedom fighter and wouldrestrict her claim accordingly. The Lower Appellate Court, however, givingcredence to the earlier suit allowed the appeal and dismissed the suit.

When this appeal was admitted, the following substantialquestion of law was proposed:- a)Whether the plaintiff-appellant Bimla Wati could be nonsuited on the hyper technical ground of principle of res judicataparticularly when no previous pleadings, issues and evidence was not on records of the suit filed by Bimla Wati?”

Learned counsel for the appellant has argued that tosuccessfully maintain the plea of res judicata it would be incumbent on theparty pleading the same to place on record not only the judgment but alsothe pleadings and the issues to prove the same and has relied upon Smt.Parimal Sen and others v. Prafulla Kumar Sen reported as AIR 1985Orissa 286 and Gurbux Singh v. Bhooralal reported as AIR 1964 SC1810(1) in support thereof. Consequently when there is overwhelmingevidence to prove that the husband of the appellant was a freedom fighter inthe shape of certification given by the Deputy Commissioner, Faridkot andSuperintendent, Central Jail, Bathinda the Court should be liberal ingranting this recognition to an 86 years old woman whose husband sufferedincarceration and other prejudice for our freedom.

Learned DAG on the other hand has sought to defend the orderof the Lower Appellate Court by saying that even if res judicata could not becompletely established, yet once her husband had lost the suit it could notbe held to be not maintainable.

Conclusion

The finding of fact that the husband of the appellant was in facta Freedom Fighter has not been upset by the Lower Appellate Court and hehas based his rejection of the claim of the appellant only on the ground ofres judicata. In case the respondents wanted to raise the plea of res judicatathey were bound to prove it in accordance with law. Not having been ableto do so they cannot get the benefit thereof.

Resultantly the appeal is allowed. The judgment and decree ofthe Lower Appellate Court is set aside while that of the trial Court is maintained subject to the offer of the appellant that she is not entitled to anypension.

Since the main case has been decided, the pending Civil Misc.Application, if any, also stands disposed of.

(AJAY TEWARI)JUDGE

December 17 , 2012sunita