Semantic Analysis by spaCy
Ela Dasu Vs. Ela Lachamma
Decided On : Sep-07-1989
Court : Orissa
Notice (8): Undefined index: topics [APP/View/Case/meta.ctp, line 36]Code Context$shops2 = $shops['topics'];$viewFile = '/home/legalcrystal/app/View/Case/meta.ctp' $dataForView = array( 'title_for_layout' => 'Ela Dasu Vs. Ela Lachamma Semantic Analysis', 'shops' => array( 'LAW' => array( (int) 0 => 'Section 494', (int) 1 => 'Section 494', (int) 2 => 'Section 11', (int) 3 => 'Section 9(1', (int) 4 => 'the Hindu Marriage Act', (int) 5 => 'Section 494', (int) 6 => 'Section 11', (int) 7 => 'Section 11', (int) 8 => 'Section 494', (int) 9 => 'Section 11', (int) 10 => 'Section 324A', (int) 11 => 'Section 9', (int) 12 => 'the Hindu Marriage Act', (int) 13 => 'the Second Appeal' ), 'PERSON' => array( (int) 0 => 'G.B. Pattnaik', (int) 1 => 'J.1', (int) 2 => 'Rath', (int) 3 => 'Rath', (int) 4 => 'Rath', (int) 5 => 'Explanation VIII', (int) 6 => 'Chowdhury Prafulla Chandra Routrai', (int) 7 => 'Indramani Baral', (int) 8 => 'Krishna Asari', (int) 9 => 'Anr', (int) 10 => 'Adaikalam', (int) 11 => 'Anil Behari', (int) 12 => 'Latika Bala Dassi', (int) 13 => 'Venkatapathi v. Salappa', (int) 14 => 'Rath', (int) 15 => 'Rath', (int) 16 => 'Rath' ), 'CARDINAL' => array( (int) 0 => '2-3-1969', (int) 1 => 'Four', (int) 2 => '2', (int) 3 => '3', (int) 4 => 'two', (int) 5 => 'two', (int) 6 => '30', (int) 7 => '425', (int) 8 => '1', (int) 9 => '337', (int) 10 => '429', (int) 11 => 'two', (int) 12 => 'one', (int) 13 => 'two', (int) 14 => '9.' ), 'DATE' => array( (int) 0 => '1973', (int) 1 => 'September, 1973', (int) 2 => '8-3-1974', (int) 3 => 'four years', (int) 4 => 'the year 1969', (int) 5 => 'four years', (int) 6 => '1943', (int) 7 => '1959', (int) 8 => '1933 Mad' ), 'ORG' => array( (int) 0 => 'Ponada Poliga', (int) 1 => 'IPC', (int) 2 => 'Court', (int) 3 => 'Court', (int) 4 => 'Court', (int) 5 => 'Court', (int) 6 => 'IPC', (int) 7 => 'the Civil Court', (int) 8 => 'Court', (int) 9 => 'Court', (int) 10 => 'IPC', (int) 11 => 'Court', (int) 12 => 'the Civil Court', (int) 13 => 'Court', (int) 14 => 'Court', (int) 15 => 'IPC', (int) 16 => 'CPC', (int) 17 => 'CLT', (int) 18 => 'Court', (int) 19 => 'the Criminal Court', (int) 20 => 'the Civil Court', (int) 21 => 'IPC', (int) 22 => 'Hewthorn and Co.', (int) 23 => 'AIR', (int) 24 => 'S.C. 566', (int) 25 => 'AIR 1928 All', (int) 26 => 'the Civil Court', (int) 27 => 'the Civil Court', (int) 28 => 'the Criminal Court', (int) 29 => 'Court', (int) 30 => 'Court', (int) 31 => 'Court', (int) 32 => 'Court', (int) 33 => 'Court', (int) 34 => 'a Second Appellate Court' ), 'GPE' => array( (int) 0 => 'S.D.J.M.', (int) 1 => 'Berhampur', (int) 2 => 'Hollington', (int) 3 => 'Shubrati', (int) 4 => 'Shamsuddin' ), 'ORDINAL' => array( (int) 0 => 'Second', (int) 1 => 'first', (int) 2 => 'first', (int) 3 => 'second', (int) 4 => 'second' ), 'WORK_OF_ART' => array( (int) 0 => '1966 Mad' ) ), 'desc' => array( 'Judgement' => array( 'id' => '529963', 'acts' => '<a href="/act/50935/hindu-marriage-act-1955-complete-act">Hindu Marriage Act, 1955</a> - Sections 7 and 9; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 11', 'appealno' => 'Second Appeal No. 284 of 1982', 'appellant' => 'Ela Dasu', 'authreffered' => '', 'casename' => 'Ela Dasu Vs. Ela Lachamma', 'casenote' => ' - STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; [P.K. Tripathy, A.K. Parichha & N.Prusty, JJ] Discharge of loan Orissa Forest Act (14 of 1972), Section 56 Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled]. -- STATE FINANCIAL CORPORATIONS ACT, 1951. Section 29; Discharge of loan Orissa Forest Act (14 of 1972), Section 56 Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled]. - Rath appearing for the appellant raised two contentions in assailing the confirming judgment of the two Courts below :(i) the defendant having been prosecuted under Section 494, IPC and having been acquitted on a finding that there was no marriage between the plaintiff and the defendant, the said finding is binding on the Civil Court, particularly in view of Explanation VIII to Section 11 of the Code of Civil Procedure and ignoring the said finding has vitiated the ultimate conclusion, and (ii) even if the conditions stipulated in Section 9(1) of the Hindu Marriage Act are satisfied, the Court has still the discretion not to grant the relief depending upon the circumstances of each case and on the facts and circumstances of the present case, the Court should not have granted the relief of restitution, Both the contentions require careful examination. Rath, Explanation VIII to Section 11, which was introduced by way of amendment, clearly indicates that an issue heard and finally decided by a Court of limited jurisdiction competent to decide such issue shall operate as res judicata in a subsequent suit notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised. Before passing a decree, the Court must be satisfied that the respondent has without reasonable excuse withdrawn from the society of the petitioner and there is no legal ground why the decree should not be passed. In this view of the matter this Court as a Second Appellate Court is not entitled to interfere with the aforesaid conclusion and finding which is based on a thorough scrutiny of the evidence as well as on proper application of law on the subject. 9. Both the contentions having failed, and no other contention having been raised, the Second Appeal is devoid of any merit and is accordingly dismissed, but in the circumstances there would be no order as to costs.', 'caseanalysis' => null, 'casesref' => ' and Venkatapathi v. Salappa;', 'citingcases' => '', 'counselplain' => 'B.B. Ratho, Adv.', 'counseldef' => 'P. Palit, Adv.', 'court' => 'Orissa', 'court_type' => 'HC', 'decidedon' => '1989-09-07', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => 'G.B. Pattnaik, J.', 'judgement' => '<p style="text-align: justify;">G.B. Pattnaik, J.</p><p style="text-align: justify;">1. Defendant is the appellant against a confirming judgment in a suit for restitution of conjugal rights.</p><p style="text-align: justify;">2. It was alleged in the plaint that the plaintiff and defendant were married on 2-3-1969 and the marriage was duly consumated and they were living as husband and wife, but they did not have any issue. They continued as such till 1973 when the defendant began to illtreat the plaintiff mostly on account of the fact that no child was born. The plaintiff was driven out of the husband's house in September, 1973. She then sent a registered notice on 8-3-1974 but the defendant denied the allegations made in the notice. In reply to the registered notice, the defendant alleged that there has been no marriage between the plaintiff and defendant. On these allegations, the suit was filed for the relief of restitution of conjugal rights.</p><p style="text-align: justify;">3. The defendant in his written statement denied all the allegations made in the plaint. According to the defence case, the defendant had married the daughter of Ponada Poliga and there had been no marriage between the plaintiff and the defendant. The defendant also averred that on the basis of false complaint, a case under Section 494, IPC has been registered in the file of the S.D.J.M., Berhampur. On these averments, it was prayed that the suit is liable to be dismissed.</p><p style="text-align: justify;">4. Four issues were framed on the aforesaid pleadings, and on the question whether the plaintiff is the wife of the defendant or not, the trial Court came to the conclusion that the plaintiff had married the defendant and they had also lived as husband and wife for a period of four years after its consumation. On issues 2 and 3, the trial Court held that the plaintiff is entitled to restitution of conjugal rights and there is cause of action for the suit. On these findings, the trial Court decreed the suit.</p><p style="text-align: justify;">5. On an appeal being carried by the defendant, the lower appellate Court confirmed the findings that plaintiff had married the defendant in the year 1969 and she remained with him as husband and wife for four years and subsequently she had been deserted by the defendant and accordingly the appeal was dismissed. The defendant has, therefore, filed the present Second Appeal.</p><p style="text-align: justify;">6. Mr. Rath appearing for the appellant raised two contentions in assailing the confirming judgment of the two Courts below :</p><p style="text-align: justify;">(i) the defendant having been prosecuted under Section 494, IPC and having been acquitted on a finding that there was no marriage between the plaintiff and the defendant, the said finding is binding on the Civil Court, particularly in view of Explanation VIII to Section 11 of the Code of Civil Procedure and ignoring the said finding has vitiated the ultimate conclusion, and</p><p style="text-align: justify;">(ii) even if the conditions stipulated in Section 9(1) of the Hindu Marriage Act are satisfied, the Court has still the discretion not to grant the relief depending upon the circumstances of each case and on the facts and circumstances of the present case, the Court should not have granted the relief of restitution,</p><p style="text-align: justify;">Both the contentions require careful examination.</p><p style="text-align: justify;">7. So far as the first submission is concerned, Mr. Rath appearing for the appellant contends that the finding of the criminal proceeding under Section 494, IPC that there was no valid marriage between the present plaintiff and defendant is a finding of a Court of limited jurisdiction within the meaning of Section 11 of the Code of Civil Procedure and therefore, such a finding must be held to be binding on the Civil Court when the question of marriage between the plaintiff and defendant is in issue. According to Mr. Rath, Explanation VIII to Section 11, which was introduced by way of amendment, clearly indicates that an issue heard and finally decided by a Court of limited jurisdiction competent to decide such issue shall operate as res judicata in a subsequent suit notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised. In my opinion, to attract Explanation VIII, an issue in question must have been answered in a former suit between the parties though it may be by a Court of limited jurisdiction. An order of acquittal passed in a proceeding under Section 494, IPC will not attract the provisions of Explanation VIII to Section 11, CPC. In the case of Chowdhury Prafulla Chandra Routrai and Ors. v. Indramani Baral and Ors., 39(1973) CLT (notes) 30. It was held by this Court that an acquittal in a criminal case does not raise a presumption as to possession or dispossession and merely because of the acquittal of the accused personal in the Criminal Court, it could not be presumed or inferred that the accused persons continued in possession of the suit land and the plaintiff was dispossessed therefrom and the question of possession has to be decided by the Civil Court. In AIR 1966 Mad. 425, Krishna Asari and Anr. v. Adaikalam and Ors., an identical question came up for consideration as to whether in application for compensation for the death caused by the vehicle driven by the respondent in that case can be rejected on the ground that the petitioner is acquitted of the charge under Section 324A, IPC. It was held by the learned judge that a decision of the criminal case could not be relied on as a binding one in a civil action. In coming to the aforesaid conclusion, the learned judge relied upon the cases of Hollington v. Hewthorn and Co., (1943) 1 KB 587, Anil Behari v. Latika Bala Dassi, AIR 1959 S.C. 566, Shubrati v. Shamsuddin, AIR 1928 All. 337 and Venkatapathi v. Salappa, AIR 1933 Mad. 429. A judgment of acquittal can be used only to establish the fact that the acquittal has taken place as a fact but the acquittal of an accused in a criminal case on a finding that there has been no marriage between the complainant and the accused cannot be said to be binding on the Civil Court in a suit for restitution of conjugal rights and the Civil Court must consider the evidence on record and come to its own finding thereon. In this view of the matter, I am unable to accept Mr. Rath's contention and hold that no error has been committed by the two Courts below in deciding the issue with regard to the marriage between the plaintiff and defendant notwithstanding the judgment of the Criminal Court. The first contention of Mr. Rath is accordingly rejected.</p><p style="text-align: justify;">8. So far as the second contention is concerned, I also do not find any force in the same. It is no doubt true that the Court will have a discretion to grant the relief of restitution depending upon the circumstances of the case, under Section 9 of the Hindu Marriage Act, the foundation of the right to bring a suit for restitution of conjugal rights is the fundamental rule of matrimonial law that one spouse is entitled to the society and comfort of the other spouse, and where either spouse has abandoned or withdrawn from the society of the other without reasonable excuse or just cause, the Court should grant a decree for restitution. The Court has a duty to enquire into and pass a decree for restitution after satisfying itself that there is bona fide desire of the petitioner to resume matrimonial cohabitation and to render the rights and duties of matrimonial life. Before passing a decree, the Court must be satisfied that the respondent has without reasonable excuse withdrawn from the society of the petitioner and there is no legal ground why the decree should not be passed. The legal ground for refusing to grant relief may consist of in any of the grounds on which the respondent could have asked for a decree for judicial separation or for nullity of marriage or for divorce or any conduct on the part of the petitioner or fact tantamount to the petitioner taking advantage of her own wrong or any disability for the purpose of such relief. The two Courts below in the present case have considered the materials on record and have come to the concurrent conclusion that the defendant without reasonable cause has withdrawn from the society of the plaintiff and accordingly granted the relief of restitution. In this view of the matter this Court as a Second Appellate Court is not entitled to interfere with the aforesaid conclusion and finding which is based on a thorough scrutiny of the evidence as well as on proper application of law on the subject. The second contention of Mr. Rath must accordingly be rejected. 9. Both the contentions having failed, and no other contention having been raised, the Second Appeal is devoid of any merit and is accordingly dismissed, but in the circumstances there would be no order as to costs.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '69(1990)CLT102; I(1990)DMC281', 'ratiodecidendi' => '', 'respondent' => 'Ela Lachamma', 'sub' => 'Family', 'link' => null, 'circuit' => null ) ), 'args' => array( (int) 0 => '529963' ) ) $title_for_layout = 'Ela Dasu Vs. Ela Lachamma Semantic Analysis' $shops = array( 'LAW' => array( (int) 0 => 'Section 494', (int) 1 => 'Section 494', (int) 2 => 'Section 11', (int) 3 => 'Section 9(1', (int) 4 => 'the Hindu Marriage Act', (int) 5 => 'Section 494', (int) 6 => 'Section 11', (int) 7 => 'Section 11', (int) 8 => 'Section 494', (int) 9 => 'Section 11', (int) 10 => 'Section 324A', (int) 11 => 'Section 9', (int) 12 => 'the Hindu Marriage Act', (int) 13 => 'the Second Appeal' ), 'PERSON' => array( (int) 0 => 'G.B. Pattnaik', (int) 1 => 'J.1', (int) 2 => 'Rath', (int) 3 => 'Rath', (int) 4 => 'Rath', (int) 5 => 'Explanation VIII', (int) 6 => 'Chowdhury Prafulla Chandra Routrai', (int) 7 => 'Indramani Baral', (int) 8 => 'Krishna Asari', (int) 9 => 'Anr', (int) 10 => 'Adaikalam', (int) 11 => 'Anil Behari', (int) 12 => 'Latika Bala Dassi', (int) 13 => 'Venkatapathi v. Salappa', (int) 14 => 'Rath', (int) 15 => 'Rath', (int) 16 => 'Rath' ), 'CARDINAL' => array( (int) 0 => '2-3-1969', (int) 1 => 'Four', (int) 2 => '2', (int) 3 => '3', (int) 4 => 'two', (int) 5 => 'two', (int) 6 => '30', (int) 7 => '425', (int) 8 => '1', (int) 9 => '337', (int) 10 => '429', (int) 11 => 'two', (int) 12 => 'one', (int) 13 => 'two', (int) 14 => '9.' ), 'DATE' => array( (int) 0 => '1973', (int) 1 => 'September, 1973', (int) 2 => '8-3-1974', (int) 3 => 'four years', (int) 4 => 'the year 1969', (int) 5 => 'four years', (int) 6 => '1943', (int) 7 => '1959', (int) 8 => '1933 Mad' ), 'ORG' => array( (int) 0 => 'Ponada Poliga', (int) 1 => 'IPC', (int) 2 => 'Court', (int) 3 => 'Court', (int) 4 => 'Court', (int) 5 => 'Court', (int) 6 => 'IPC', (int) 7 => 'the Civil Court', (int) 8 => 'Court', (int) 9 => 'Court', (int) 10 => 'IPC', (int) 11 => 'Court', (int) 12 => 'the Civil Court', (int) 13 => 'Court', (int) 14 => 'Court', (int) 15 => 'IPC', (int) 16 => 'CPC', (int) 17 => 'CLT', (int) 18 => 'Court', (int) 19 => 'the Criminal Court', (int) 20 => 'the Civil Court', (int) 21 => 'IPC', (int) 22 => 'Hewthorn and Co.', (int) 23 => 'AIR', (int) 24 => 'S.C. 566', (int) 25 => 'AIR 1928 All', (int) 26 => 'the Civil Court', (int) 27 => 'the Civil Court', (int) 28 => 'the Criminal Court', (int) 29 => 'Court', (int) 30 => 'Court', (int) 31 => 'Court', (int) 32 => 'Court', (int) 33 => 'Court', (int) 34 => 'a Second Appellate Court' ), 'GPE' => array( (int) 0 => 'S.D.J.M.', (int) 1 => 'Berhampur', (int) 2 => 'Hollington', (int) 3 => 'Shubrati', (int) 4 => 'Shamsuddin' ), 'ORDINAL' => array( (int) 0 => 'Second', (int) 1 => 'first', (int) 2 => 'first', (int) 3 => 'second', (int) 4 => 'second' ), 'WORK_OF_ART' => array( (int) 0 => '1966 Mad' ) ) $desc = array( 'Judgement' => array( 'id' => '529963', 'acts' => '<a href="/act/50935/hindu-marriage-act-1955-complete-act">Hindu Marriage Act, 1955</a> - Sections 7 and 9; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 11', 'appealno' => 'Second Appeal No. 284 of 1982', 'appellant' => 'Ela Dasu', 'authreffered' => '', 'casename' => 'Ela Dasu Vs. Ela Lachamma', 'casenote' => ' - STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; [P.K. Tripathy, A.K. Parichha & N.Prusty, JJ] Discharge of loan Orissa Forest Act (14 of 1972), Section 56 Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled]. -- STATE FINANCIAL CORPORATIONS ACT, 1951. Section 29; Discharge of loan Orissa Forest Act (14 of 1972), Section 56 Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled]. - Rath appearing for the appellant raised two contentions in assailing the confirming judgment of the two Courts below :(i) the defendant having been prosecuted under Section 494, IPC and having been acquitted on a finding that there was no marriage between the plaintiff and the defendant, the said finding is binding on the Civil Court, particularly in view of Explanation VIII to Section 11 of the Code of Civil Procedure and ignoring the said finding has vitiated the ultimate conclusion, and (ii) even if the conditions stipulated in Section 9(1) of the Hindu Marriage Act are satisfied, the Court has still the discretion not to grant the relief depending upon the circumstances of each case and on the facts and circumstances of the present case, the Court should not have granted the relief of restitution, Both the contentions require careful examination. Rath, Explanation VIII to Section 11, which was introduced by way of amendment, clearly indicates that an issue heard and finally decided by a Court of limited jurisdiction competent to decide such issue shall operate as res judicata in a subsequent suit notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised. Before passing a decree, the Court must be satisfied that the respondent has without reasonable excuse withdrawn from the society of the petitioner and there is no legal ground why the decree should not be passed. In this view of the matter this Court as a Second Appellate Court is not entitled to interfere with the aforesaid conclusion and finding which is based on a thorough scrutiny of the evidence as well as on proper application of law on the subject. 9. Both the contentions having failed, and no other contention having been raised, the Second Appeal is devoid of any merit and is accordingly dismissed, but in the circumstances there would be no order as to costs.', 'caseanalysis' => null, 'casesref' => ' and Venkatapathi v. Salappa;', 'citingcases' => '', 'counselplain' => 'B.B. Ratho, Adv.', 'counseldef' => 'P. Palit, Adv.', 'court' => 'Orissa', 'court_type' => 'HC', 'decidedon' => '1989-09-07', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => 'G.B. Pattnaik, J.', 'judgement' => '<p style="text-align: justify;">G.B. Pattnaik, J.</p><p style="text-align: justify;">1. Defendant is the appellant against a confirming judgment in a suit for restitution of conjugal rights.</p><p style="text-align: justify;">2. It was alleged in the plaint that the plaintiff and defendant were married on 2-3-1969 and the marriage was duly consumated and they were living as husband and wife, but they did not have any issue. They continued as such till 1973 when the defendant began to illtreat the plaintiff mostly on account of the fact that no child was born. The plaintiff was driven out of the husband's house in September, 1973. She then sent a registered notice on 8-3-1974 but the defendant denied the allegations made in the notice. In reply to the registered notice, the defendant alleged that there has been no marriage between the plaintiff and defendant. On these allegations, the suit was filed for the relief of restitution of conjugal rights.</p><p style="text-align: justify;">3. The defendant in his written statement denied all the allegations made in the plaint. According to the defence case, the defendant had married the daughter of Ponada Poliga and there had been no marriage between the plaintiff and the defendant. The defendant also averred that on the basis of false complaint, a case under Section 494, IPC has been registered in the file of the S.D.J.M., Berhampur. On these averments, it was prayed that the suit is liable to be dismissed.</p><p style="text-align: justify;">4. Four issues were framed on the aforesaid pleadings, and on the question whether the plaintiff is the wife of the defendant or not, the trial Court came to the conclusion that the plaintiff had married the defendant and they had also lived as husband and wife for a period of four years after its consumation. On issues 2 and 3, the trial Court held that the plaintiff is entitled to restitution of conjugal rights and there is cause of action for the suit. On these findings, the trial Court decreed the suit.</p><p style="text-align: justify;">5. On an appeal being carried by the defendant, the lower appellate Court confirmed the findings that plaintiff had married the defendant in the year 1969 and she remained with him as husband and wife for four years and subsequently she had been deserted by the defendant and accordingly the appeal was dismissed. The defendant has, therefore, filed the present Second Appeal.</p><p style="text-align: justify;">6. Mr. Rath appearing for the appellant raised two contentions in assailing the confirming judgment of the two Courts below :</p><p style="text-align: justify;">(i) the defendant having been prosecuted under Section 494, IPC and having been acquitted on a finding that there was no marriage between the plaintiff and the defendant, the said finding is binding on the Civil Court, particularly in view of Explanation VIII to Section 11 of the Code of Civil Procedure and ignoring the said finding has vitiated the ultimate conclusion, and</p><p style="text-align: justify;">(ii) even if the conditions stipulated in Section 9(1) of the Hindu Marriage Act are satisfied, the Court has still the discretion not to grant the relief depending upon the circumstances of each case and on the facts and circumstances of the present case, the Court should not have granted the relief of restitution,</p><p style="text-align: justify;">Both the contentions require careful examination.</p><p style="text-align: justify;">7. So far as the first submission is concerned, Mr. Rath appearing for the appellant contends that the finding of the criminal proceeding under Section 494, IPC that there was no valid marriage between the present plaintiff and defendant is a finding of a Court of limited jurisdiction within the meaning of Section 11 of the Code of Civil Procedure and therefore, such a finding must be held to be binding on the Civil Court when the question of marriage between the plaintiff and defendant is in issue. According to Mr. Rath, Explanation VIII to Section 11, which was introduced by way of amendment, clearly indicates that an issue heard and finally decided by a Court of limited jurisdiction competent to decide such issue shall operate as res judicata in a subsequent suit notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised. In my opinion, to attract Explanation VIII, an issue in question must have been answered in a former suit between the parties though it may be by a Court of limited jurisdiction. An order of acquittal passed in a proceeding under Section 494, IPC will not attract the provisions of Explanation VIII to Section 11, CPC. In the case of Chowdhury Prafulla Chandra Routrai and Ors. v. Indramani Baral and Ors., 39(1973) CLT (notes) 30. It was held by this Court that an acquittal in a criminal case does not raise a presumption as to possession or dispossession and merely because of the acquittal of the accused personal in the Criminal Court, it could not be presumed or inferred that the accused persons continued in possession of the suit land and the plaintiff was dispossessed therefrom and the question of possession has to be decided by the Civil Court. In AIR 1966 Mad. 425, Krishna Asari and Anr. v. Adaikalam and Ors., an identical question came up for consideration as to whether in application for compensation for the death caused by the vehicle driven by the respondent in that case can be rejected on the ground that the petitioner is acquitted of the charge under Section 324A, IPC. It was held by the learned judge that a decision of the criminal case could not be relied on as a binding one in a civil action. In coming to the aforesaid conclusion, the learned judge relied upon the cases of Hollington v. Hewthorn and Co., (1943) 1 KB 587, Anil Behari v. Latika Bala Dassi, AIR 1959 S.C. 566, Shubrati v. Shamsuddin, AIR 1928 All. 337 and Venkatapathi v. Salappa, AIR 1933 Mad. 429. A judgment of acquittal can be used only to establish the fact that the acquittal has taken place as a fact but the acquittal of an accused in a criminal case on a finding that there has been no marriage between the complainant and the accused cannot be said to be binding on the Civil Court in a suit for restitution of conjugal rights and the Civil Court must consider the evidence on record and come to its own finding thereon. In this view of the matter, I am unable to accept Mr. Rath's contention and hold that no error has been committed by the two Courts below in deciding the issue with regard to the marriage between the plaintiff and defendant notwithstanding the judgment of the Criminal Court. The first contention of Mr. Rath is accordingly rejected.</p><p style="text-align: justify;">8. So far as the second contention is concerned, I also do not find any force in the same. It is no doubt true that the Court will have a discretion to grant the relief of restitution depending upon the circumstances of the case, under Section 9 of the Hindu Marriage Act, the foundation of the right to bring a suit for restitution of conjugal rights is the fundamental rule of matrimonial law that one spouse is entitled to the society and comfort of the other spouse, and where either spouse has abandoned or withdrawn from the society of the other without reasonable excuse or just cause, the Court should grant a decree for restitution. The Court has a duty to enquire into and pass a decree for restitution after satisfying itself that there is bona fide desire of the petitioner to resume matrimonial cohabitation and to render the rights and duties of matrimonial life. Before passing a decree, the Court must be satisfied that the respondent has without reasonable excuse withdrawn from the society of the petitioner and there is no legal ground why the decree should not be passed. The legal ground for refusing to grant relief may consist of in any of the grounds on which the respondent could have asked for a decree for judicial separation or for nullity of marriage or for divorce or any conduct on the part of the petitioner or fact tantamount to the petitioner taking advantage of her own wrong or any disability for the purpose of such relief. The two Courts below in the present case have considered the materials on record and have come to the concurrent conclusion that the defendant without reasonable cause has withdrawn from the society of the plaintiff and accordingly granted the relief of restitution. In this view of the matter this Court as a Second Appellate Court is not entitled to interfere with the aforesaid conclusion and finding which is based on a thorough scrutiny of the evidence as well as on proper application of law on the subject. The second contention of Mr. Rath must accordingly be rejected. 9. Both the contentions having failed, and no other contention having been raised, the Second Appeal is devoid of any merit and is accordingly dismissed, but in the circumstances there would be no order as to costs.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '69(1990)CLT102; I(1990)DMC281', 'ratiodecidendi' => '', 'respondent' => 'Ela Lachamma', 'sub' => 'Family', 'link' => null, 'circuit' => null ) ) $args = array( (int) 0 => '529963' ) $pattern = '/\(((0[1-9]|[12][0-9]|3[01])[.](0[1-9]|1[012])[.](17|18|19|20)[0-9]{2}).*\)/'include - APP/View/Case/meta.ctp, line 36 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
Warning (2): Invalid argument supplied for foreach() [APP/View/Case/meta.ctp, line 39]Code Context//$shops = $shops['entities'];foreach ($shops2 as $key => $val) {$viewFile = '/home/legalcrystal/app/View/Case/meta.ctp' $dataForView = array( 'title_for_layout' => 'Ela Dasu Vs. Ela Lachamma Semantic Analysis', 'shops' => array( 'LAW' => array( (int) 0 => 'Section 494', (int) 1 => 'Section 494', (int) 2 => 'Section 11', (int) 3 => 'Section 9(1', (int) 4 => 'the Hindu Marriage Act', (int) 5 => 'Section 494', (int) 6 => 'Section 11', (int) 7 => 'Section 11', (int) 8 => 'Section 494', (int) 9 => 'Section 11', (int) 10 => 'Section 324A', (int) 11 => 'Section 9', (int) 12 => 'the Hindu Marriage Act', (int) 13 => 'the Second Appeal' ), 'PERSON' => array( (int) 0 => 'G.B. Pattnaik', (int) 1 => 'J.1', (int) 2 => 'Rath', (int) 3 => 'Rath', (int) 4 => 'Rath', (int) 5 => 'Explanation VIII', (int) 6 => 'Chowdhury Prafulla Chandra Routrai', (int) 7 => 'Indramani Baral', (int) 8 => 'Krishna Asari', (int) 9 => 'Anr', (int) 10 => 'Adaikalam', (int) 11 => 'Anil Behari', (int) 12 => 'Latika Bala Dassi', (int) 13 => 'Venkatapathi v. Salappa', (int) 14 => 'Rath', (int) 15 => 'Rath', (int) 16 => 'Rath' ), 'CARDINAL' => array( (int) 0 => '2-3-1969', (int) 1 => 'Four', (int) 2 => '2', (int) 3 => '3', (int) 4 => 'two', (int) 5 => 'two', (int) 6 => '30', (int) 7 => '425', (int) 8 => '1', (int) 9 => '337', (int) 10 => '429', (int) 11 => 'two', (int) 12 => 'one', (int) 13 => 'two', (int) 14 => '9.' ), 'DATE' => array( (int) 0 => '1973', (int) 1 => 'September, 1973', (int) 2 => '8-3-1974', (int) 3 => 'four years', (int) 4 => 'the year 1969', (int) 5 => 'four years', (int) 6 => '1943', (int) 7 => '1959', (int) 8 => '1933 Mad' ), 'ORG' => array( (int) 0 => 'Ponada Poliga', (int) 1 => 'IPC', (int) 2 => 'Court', (int) 3 => 'Court', (int) 4 => 'Court', (int) 5 => 'Court', (int) 6 => 'IPC', (int) 7 => 'the Civil Court', (int) 8 => 'Court', (int) 9 => 'Court', (int) 10 => 'IPC', (int) 11 => 'Court', (int) 12 => 'the Civil Court', (int) 13 => 'Court', (int) 14 => 'Court', (int) 15 => 'IPC', (int) 16 => 'CPC', (int) 17 => 'CLT', (int) 18 => 'Court', (int) 19 => 'the Criminal Court', (int) 20 => 'the Civil Court', (int) 21 => 'IPC', (int) 22 => 'Hewthorn and Co.', (int) 23 => 'AIR', (int) 24 => 'S.C. 566', (int) 25 => 'AIR 1928 All', (int) 26 => 'the Civil Court', (int) 27 => 'the Civil Court', (int) 28 => 'the Criminal Court', (int) 29 => 'Court', (int) 30 => 'Court', (int) 31 => 'Court', (int) 32 => 'Court', (int) 33 => 'Court', (int) 34 => 'a Second Appellate Court' ), 'GPE' => array( (int) 0 => 'S.D.J.M.', (int) 1 => 'Berhampur', (int) 2 => 'Hollington', (int) 3 => 'Shubrati', (int) 4 => 'Shamsuddin' ), 'ORDINAL' => array( (int) 0 => 'Second', (int) 1 => 'first', (int) 2 => 'first', (int) 3 => 'second', (int) 4 => 'second' ), 'WORK_OF_ART' => array( (int) 0 => '1966 Mad' ) ), 'desc' => array( 'Judgement' => array( 'id' => '529963', 'acts' => '<a href="/act/50935/hindu-marriage-act-1955-complete-act">Hindu Marriage Act, 1955</a> - Sections 7 and 9; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 11', 'appealno' => 'Second Appeal No. 284 of 1982', 'appellant' => 'Ela Dasu', 'authreffered' => '', 'casename' => 'Ela Dasu Vs. Ela Lachamma', 'casenote' => ' - STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; [P.K. Tripathy, A.K. Parichha & N.Prusty, JJ] Discharge of loan Orissa Forest Act (14 of 1972), Section 56 Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled]. -- STATE FINANCIAL CORPORATIONS ACT, 1951. Section 29; Discharge of loan Orissa Forest Act (14 of 1972), Section 56 Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled]. - Rath appearing for the appellant raised two contentions in assailing the confirming judgment of the two Courts below :(i) the defendant having been prosecuted under Section 494, IPC and having been acquitted on a finding that there was no marriage between the plaintiff and the defendant, the said finding is binding on the Civil Court, particularly in view of Explanation VIII to Section 11 of the Code of Civil Procedure and ignoring the said finding has vitiated the ultimate conclusion, and (ii) even if the conditions stipulated in Section 9(1) of the Hindu Marriage Act are satisfied, the Court has still the discretion not to grant the relief depending upon the circumstances of each case and on the facts and circumstances of the present case, the Court should not have granted the relief of restitution, Both the contentions require careful examination. Rath, Explanation VIII to Section 11, which was introduced by way of amendment, clearly indicates that an issue heard and finally decided by a Court of limited jurisdiction competent to decide such issue shall operate as res judicata in a subsequent suit notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised. Before passing a decree, the Court must be satisfied that the respondent has without reasonable excuse withdrawn from the society of the petitioner and there is no legal ground why the decree should not be passed. In this view of the matter this Court as a Second Appellate Court is not entitled to interfere with the aforesaid conclusion and finding which is based on a thorough scrutiny of the evidence as well as on proper application of law on the subject. 9. Both the contentions having failed, and no other contention having been raised, the Second Appeal is devoid of any merit and is accordingly dismissed, but in the circumstances there would be no order as to costs.', 'caseanalysis' => null, 'casesref' => ' and Venkatapathi v. Salappa;', 'citingcases' => '', 'counselplain' => 'B.B. Ratho, Adv.', 'counseldef' => 'P. Palit, Adv.', 'court' => 'Orissa', 'court_type' => 'HC', 'decidedon' => '1989-09-07', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => 'G.B. Pattnaik, J.', 'judgement' => '<p style="text-align: justify;">G.B. Pattnaik, J.</p><p style="text-align: justify;">1. Defendant is the appellant against a confirming judgment in a suit for restitution of conjugal rights.</p><p style="text-align: justify;">2. It was alleged in the plaint that the plaintiff and defendant were married on 2-3-1969 and the marriage was duly consumated and they were living as husband and wife, but they did not have any issue. They continued as such till 1973 when the defendant began to illtreat the plaintiff mostly on account of the fact that no child was born. The plaintiff was driven out of the husband's house in September, 1973. She then sent a registered notice on 8-3-1974 but the defendant denied the allegations made in the notice. In reply to the registered notice, the defendant alleged that there has been no marriage between the plaintiff and defendant. On these allegations, the suit was filed for the relief of restitution of conjugal rights.</p><p style="text-align: justify;">3. The defendant in his written statement denied all the allegations made in the plaint. According to the defence case, the defendant had married the daughter of Ponada Poliga and there had been no marriage between the plaintiff and the defendant. The defendant also averred that on the basis of false complaint, a case under Section 494, IPC has been registered in the file of the S.D.J.M., Berhampur. On these averments, it was prayed that the suit is liable to be dismissed.</p><p style="text-align: justify;">4. Four issues were framed on the aforesaid pleadings, and on the question whether the plaintiff is the wife of the defendant or not, the trial Court came to the conclusion that the plaintiff had married the defendant and they had also lived as husband and wife for a period of four years after its consumation. On issues 2 and 3, the trial Court held that the plaintiff is entitled to restitution of conjugal rights and there is cause of action for the suit. On these findings, the trial Court decreed the suit.</p><p style="text-align: justify;">5. On an appeal being carried by the defendant, the lower appellate Court confirmed the findings that plaintiff had married the defendant in the year 1969 and she remained with him as husband and wife for four years and subsequently she had been deserted by the defendant and accordingly the appeal was dismissed. The defendant has, therefore, filed the present Second Appeal.</p><p style="text-align: justify;">6. Mr. Rath appearing for the appellant raised two contentions in assailing the confirming judgment of the two Courts below :</p><p style="text-align: justify;">(i) the defendant having been prosecuted under Section 494, IPC and having been acquitted on a finding that there was no marriage between the plaintiff and the defendant, the said finding is binding on the Civil Court, particularly in view of Explanation VIII to Section 11 of the Code of Civil Procedure and ignoring the said finding has vitiated the ultimate conclusion, and</p><p style="text-align: justify;">(ii) even if the conditions stipulated in Section 9(1) of the Hindu Marriage Act are satisfied, the Court has still the discretion not to grant the relief depending upon the circumstances of each case and on the facts and circumstances of the present case, the Court should not have granted the relief of restitution,</p><p style="text-align: justify;">Both the contentions require careful examination.</p><p style="text-align: justify;">7. So far as the first submission is concerned, Mr. Rath appearing for the appellant contends that the finding of the criminal proceeding under Section 494, IPC that there was no valid marriage between the present plaintiff and defendant is a finding of a Court of limited jurisdiction within the meaning of Section 11 of the Code of Civil Procedure and therefore, such a finding must be held to be binding on the Civil Court when the question of marriage between the plaintiff and defendant is in issue. According to Mr. Rath, Explanation VIII to Section 11, which was introduced by way of amendment, clearly indicates that an issue heard and finally decided by a Court of limited jurisdiction competent to decide such issue shall operate as res judicata in a subsequent suit notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised. In my opinion, to attract Explanation VIII, an issue in question must have been answered in a former suit between the parties though it may be by a Court of limited jurisdiction. An order of acquittal passed in a proceeding under Section 494, IPC will not attract the provisions of Explanation VIII to Section 11, CPC. In the case of Chowdhury Prafulla Chandra Routrai and Ors. v. Indramani Baral and Ors., 39(1973) CLT (notes) 30. It was held by this Court that an acquittal in a criminal case does not raise a presumption as to possession or dispossession and merely because of the acquittal of the accused personal in the Criminal Court, it could not be presumed or inferred that the accused persons continued in possession of the suit land and the plaintiff was dispossessed therefrom and the question of possession has to be decided by the Civil Court. In AIR 1966 Mad. 425, Krishna Asari and Anr. v. Adaikalam and Ors., an identical question came up for consideration as to whether in application for compensation for the death caused by the vehicle driven by the respondent in that case can be rejected on the ground that the petitioner is acquitted of the charge under Section 324A, IPC. It was held by the learned judge that a decision of the criminal case could not be relied on as a binding one in a civil action. In coming to the aforesaid conclusion, the learned judge relied upon the cases of Hollington v. Hewthorn and Co., (1943) 1 KB 587, Anil Behari v. Latika Bala Dassi, AIR 1959 S.C. 566, Shubrati v. Shamsuddin, AIR 1928 All. 337 and Venkatapathi v. Salappa, AIR 1933 Mad. 429. A judgment of acquittal can be used only to establish the fact that the acquittal has taken place as a fact but the acquittal of an accused in a criminal case on a finding that there has been no marriage between the complainant and the accused cannot be said to be binding on the Civil Court in a suit for restitution of conjugal rights and the Civil Court must consider the evidence on record and come to its own finding thereon. In this view of the matter, I am unable to accept Mr. Rath's contention and hold that no error has been committed by the two Courts below in deciding the issue with regard to the marriage between the plaintiff and defendant notwithstanding the judgment of the Criminal Court. The first contention of Mr. Rath is accordingly rejected.</p><p style="text-align: justify;">8. So far as the second contention is concerned, I also do not find any force in the same. It is no doubt true that the Court will have a discretion to grant the relief of restitution depending upon the circumstances of the case, under Section 9 of the Hindu Marriage Act, the foundation of the right to bring a suit for restitution of conjugal rights is the fundamental rule of matrimonial law that one spouse is entitled to the society and comfort of the other spouse, and where either spouse has abandoned or withdrawn from the society of the other without reasonable excuse or just cause, the Court should grant a decree for restitution. The Court has a duty to enquire into and pass a decree for restitution after satisfying itself that there is bona fide desire of the petitioner to resume matrimonial cohabitation and to render the rights and duties of matrimonial life. Before passing a decree, the Court must be satisfied that the respondent has without reasonable excuse withdrawn from the society of the petitioner and there is no legal ground why the decree should not be passed. The legal ground for refusing to grant relief may consist of in any of the grounds on which the respondent could have asked for a decree for judicial separation or for nullity of marriage or for divorce or any conduct on the part of the petitioner or fact tantamount to the petitioner taking advantage of her own wrong or any disability for the purpose of such relief. The two Courts below in the present case have considered the materials on record and have come to the concurrent conclusion that the defendant without reasonable cause has withdrawn from the society of the plaintiff and accordingly granted the relief of restitution. In this view of the matter this Court as a Second Appellate Court is not entitled to interfere with the aforesaid conclusion and finding which is based on a thorough scrutiny of the evidence as well as on proper application of law on the subject. The second contention of Mr. Rath must accordingly be rejected. 9. Both the contentions having failed, and no other contention having been raised, the Second Appeal is devoid of any merit and is accordingly dismissed, but in the circumstances there would be no order as to costs.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '69(1990)CLT102; I(1990)DMC281', 'ratiodecidendi' => '', 'respondent' => 'Ela Lachamma', 'sub' => 'Family', 'link' => null, 'circuit' => null ) ), 'args' => array( (int) 0 => '529963' ) ) $title_for_layout = 'Ela Dasu Vs. Ela Lachamma Semantic Analysis' $shops = array( 'LAW' => array( (int) 0 => 'Section 494', (int) 1 => 'Section 494', (int) 2 => 'Section 11', (int) 3 => 'Section 9(1', (int) 4 => 'the Hindu Marriage Act', (int) 5 => 'Section 494', (int) 6 => 'Section 11', (int) 7 => 'Section 11', (int) 8 => 'Section 494', (int) 9 => 'Section 11', (int) 10 => 'Section 324A', (int) 11 => 'Section 9', (int) 12 => 'the Hindu Marriage Act', (int) 13 => 'the Second Appeal' ), 'PERSON' => array( (int) 0 => 'G.B. Pattnaik', (int) 1 => 'J.1', (int) 2 => 'Rath', (int) 3 => 'Rath', (int) 4 => 'Rath', (int) 5 => 'Explanation VIII', (int) 6 => 'Chowdhury Prafulla Chandra Routrai', (int) 7 => 'Indramani Baral', (int) 8 => 'Krishna Asari', (int) 9 => 'Anr', (int) 10 => 'Adaikalam', (int) 11 => 'Anil Behari', (int) 12 => 'Latika Bala Dassi', (int) 13 => 'Venkatapathi v. Salappa', (int) 14 => 'Rath', (int) 15 => 'Rath', (int) 16 => 'Rath' ), 'CARDINAL' => array( (int) 0 => '2-3-1969', (int) 1 => 'Four', (int) 2 => '2', (int) 3 => '3', (int) 4 => 'two', (int) 5 => 'two', (int) 6 => '30', (int) 7 => '425', (int) 8 => '1', (int) 9 => '337', (int) 10 => '429', (int) 11 => 'two', (int) 12 => 'one', (int) 13 => 'two', (int) 14 => '9.' ), 'DATE' => array( (int) 0 => '1973', (int) 1 => 'September, 1973', (int) 2 => '8-3-1974', (int) 3 => 'four years', (int) 4 => 'the year 1969', (int) 5 => 'four years', (int) 6 => '1943', (int) 7 => '1959', (int) 8 => '1933 Mad' ), 'ORG' => array( (int) 0 => 'Ponada Poliga', (int) 1 => 'IPC', (int) 2 => 'Court', (int) 3 => 'Court', (int) 4 => 'Court', (int) 5 => 'Court', (int) 6 => 'IPC', (int) 7 => 'the Civil Court', (int) 8 => 'Court', (int) 9 => 'Court', (int) 10 => 'IPC', (int) 11 => 'Court', (int) 12 => 'the Civil Court', (int) 13 => 'Court', (int) 14 => 'Court', (int) 15 => 'IPC', (int) 16 => 'CPC', (int) 17 => 'CLT', (int) 18 => 'Court', (int) 19 => 'the Criminal Court', (int) 20 => 'the Civil Court', (int) 21 => 'IPC', (int) 22 => 'Hewthorn and Co.', (int) 23 => 'AIR', (int) 24 => 'S.C. 566', (int) 25 => 'AIR 1928 All', (int) 26 => 'the Civil Court', (int) 27 => 'the Civil Court', (int) 28 => 'the Criminal Court', (int) 29 => 'Court', (int) 30 => 'Court', (int) 31 => 'Court', (int) 32 => 'Court', (int) 33 => 'Court', (int) 34 => 'a Second Appellate Court' ), 'GPE' => array( (int) 0 => 'S.D.J.M.', (int) 1 => 'Berhampur', (int) 2 => 'Hollington', (int) 3 => 'Shubrati', (int) 4 => 'Shamsuddin' ), 'ORDINAL' => array( (int) 0 => 'Second', (int) 1 => 'first', (int) 2 => 'first', (int) 3 => 'second', (int) 4 => 'second' ), 'WORK_OF_ART' => array( (int) 0 => '1966 Mad' ) ) $desc = array( 'Judgement' => array( 'id' => '529963', 'acts' => '<a href="/act/50935/hindu-marriage-act-1955-complete-act">Hindu Marriage Act, 1955</a> - Sections 7 and 9; <a href="/act/51117/code-of-civil-procedure-1908-complete-act">Code of Civil Procedure (CPC) , 1908</a> - Sections 11', 'appealno' => 'Second Appeal No. 284 of 1982', 'appellant' => 'Ela Dasu', 'authreffered' => '', 'casename' => 'Ela Dasu Vs. Ela Lachamma', 'casenote' => ' - STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; [P.K. Tripathy, A.K. Parichha & N.Prusty, JJ] Discharge of loan Orissa Forest Act (14 of 1972), Section 56 Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled]. -- STATE FINANCIAL CORPORATIONS ACT, 1951. Section 29; Discharge of loan Orissa Forest Act (14 of 1972), Section 56 Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled]. - Rath appearing for the appellant raised two contentions in assailing the confirming judgment of the two Courts below :(i) the defendant having been prosecuted under Section 494, IPC and having been acquitted on a finding that there was no marriage between the plaintiff and the defendant, the said finding is binding on the Civil Court, particularly in view of Explanation VIII to Section 11 of the Code of Civil Procedure and ignoring the said finding has vitiated the ultimate conclusion, and (ii) even if the conditions stipulated in Section 9(1) of the Hindu Marriage Act are satisfied, the Court has still the discretion not to grant the relief depending upon the circumstances of each case and on the facts and circumstances of the present case, the Court should not have granted the relief of restitution, Both the contentions require careful examination. Rath, Explanation VIII to Section 11, which was introduced by way of amendment, clearly indicates that an issue heard and finally decided by a Court of limited jurisdiction competent to decide such issue shall operate as res judicata in a subsequent suit notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised. Before passing a decree, the Court must be satisfied that the respondent has without reasonable excuse withdrawn from the society of the petitioner and there is no legal ground why the decree should not be passed. In this view of the matter this Court as a Second Appellate Court is not entitled to interfere with the aforesaid conclusion and finding which is based on a thorough scrutiny of the evidence as well as on proper application of law on the subject. 9. Both the contentions having failed, and no other contention having been raised, the Second Appeal is devoid of any merit and is accordingly dismissed, but in the circumstances there would be no order as to costs.', 'caseanalysis' => null, 'casesref' => ' and Venkatapathi v. Salappa;', 'citingcases' => '', 'counselplain' => 'B.B. Ratho, Adv.', 'counseldef' => 'P. Palit, Adv.', 'court' => 'Orissa', 'court_type' => 'HC', 'decidedon' => '1989-09-07', 'deposition' => 'Appeal dismissed', 'favorof' => null, 'findings' => null, 'judge' => 'G.B. Pattnaik, J.', 'judgement' => '<p style="text-align: justify;">G.B. Pattnaik, J.</p><p style="text-align: justify;">1. Defendant is the appellant against a confirming judgment in a suit for restitution of conjugal rights.</p><p style="text-align: justify;">2. It was alleged in the plaint that the plaintiff and defendant were married on 2-3-1969 and the marriage was duly consumated and they were living as husband and wife, but they did not have any issue. They continued as such till 1973 when the defendant began to illtreat the plaintiff mostly on account of the fact that no child was born. The plaintiff was driven out of the husband's house in September, 1973. She then sent a registered notice on 8-3-1974 but the defendant denied the allegations made in the notice. In reply to the registered notice, the defendant alleged that there has been no marriage between the plaintiff and defendant. On these allegations, the suit was filed for the relief of restitution of conjugal rights.</p><p style="text-align: justify;">3. The defendant in his written statement denied all the allegations made in the plaint. According to the defence case, the defendant had married the daughter of Ponada Poliga and there had been no marriage between the plaintiff and the defendant. The defendant also averred that on the basis of false complaint, a case under Section 494, IPC has been registered in the file of the S.D.J.M., Berhampur. On these averments, it was prayed that the suit is liable to be dismissed.</p><p style="text-align: justify;">4. Four issues were framed on the aforesaid pleadings, and on the question whether the plaintiff is the wife of the defendant or not, the trial Court came to the conclusion that the plaintiff had married the defendant and they had also lived as husband and wife for a period of four years after its consumation. On issues 2 and 3, the trial Court held that the plaintiff is entitled to restitution of conjugal rights and there is cause of action for the suit. On these findings, the trial Court decreed the suit.</p><p style="text-align: justify;">5. On an appeal being carried by the defendant, the lower appellate Court confirmed the findings that plaintiff had married the defendant in the year 1969 and she remained with him as husband and wife for four years and subsequently she had been deserted by the defendant and accordingly the appeal was dismissed. The defendant has, therefore, filed the present Second Appeal.</p><p style="text-align: justify;">6. Mr. Rath appearing for the appellant raised two contentions in assailing the confirming judgment of the two Courts below :</p><p style="text-align: justify;">(i) the defendant having been prosecuted under Section 494, IPC and having been acquitted on a finding that there was no marriage between the plaintiff and the defendant, the said finding is binding on the Civil Court, particularly in view of Explanation VIII to Section 11 of the Code of Civil Procedure and ignoring the said finding has vitiated the ultimate conclusion, and</p><p style="text-align: justify;">(ii) even if the conditions stipulated in Section 9(1) of the Hindu Marriage Act are satisfied, the Court has still the discretion not to grant the relief depending upon the circumstances of each case and on the facts and circumstances of the present case, the Court should not have granted the relief of restitution,</p><p style="text-align: justify;">Both the contentions require careful examination.</p><p style="text-align: justify;">7. So far as the first submission is concerned, Mr. Rath appearing for the appellant contends that the finding of the criminal proceeding under Section 494, IPC that there was no valid marriage between the present plaintiff and defendant is a finding of a Court of limited jurisdiction within the meaning of Section 11 of the Code of Civil Procedure and therefore, such a finding must be held to be binding on the Civil Court when the question of marriage between the plaintiff and defendant is in issue. According to Mr. Rath, Explanation VIII to Section 11, which was introduced by way of amendment, clearly indicates that an issue heard and finally decided by a Court of limited jurisdiction competent to decide such issue shall operate as res judicata in a subsequent suit notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised. In my opinion, to attract Explanation VIII, an issue in question must have been answered in a former suit between the parties though it may be by a Court of limited jurisdiction. An order of acquittal passed in a proceeding under Section 494, IPC will not attract the provisions of Explanation VIII to Section 11, CPC. In the case of Chowdhury Prafulla Chandra Routrai and Ors. v. Indramani Baral and Ors., 39(1973) CLT (notes) 30. It was held by this Court that an acquittal in a criminal case does not raise a presumption as to possession or dispossession and merely because of the acquittal of the accused personal in the Criminal Court, it could not be presumed or inferred that the accused persons continued in possession of the suit land and the plaintiff was dispossessed therefrom and the question of possession has to be decided by the Civil Court. In AIR 1966 Mad. 425, Krishna Asari and Anr. v. Adaikalam and Ors., an identical question came up for consideration as to whether in application for compensation for the death caused by the vehicle driven by the respondent in that case can be rejected on the ground that the petitioner is acquitted of the charge under Section 324A, IPC. It was held by the learned judge that a decision of the criminal case could not be relied on as a binding one in a civil action. In coming to the aforesaid conclusion, the learned judge relied upon the cases of Hollington v. Hewthorn and Co., (1943) 1 KB 587, Anil Behari v. Latika Bala Dassi, AIR 1959 S.C. 566, Shubrati v. Shamsuddin, AIR 1928 All. 337 and Venkatapathi v. Salappa, AIR 1933 Mad. 429. A judgment of acquittal can be used only to establish the fact that the acquittal has taken place as a fact but the acquittal of an accused in a criminal case on a finding that there has been no marriage between the complainant and the accused cannot be said to be binding on the Civil Court in a suit for restitution of conjugal rights and the Civil Court must consider the evidence on record and come to its own finding thereon. In this view of the matter, I am unable to accept Mr. Rath's contention and hold that no error has been committed by the two Courts below in deciding the issue with regard to the marriage between the plaintiff and defendant notwithstanding the judgment of the Criminal Court. The first contention of Mr. Rath is accordingly rejected.</p><p style="text-align: justify;">8. So far as the second contention is concerned, I also do not find any force in the same. It is no doubt true that the Court will have a discretion to grant the relief of restitution depending upon the circumstances of the case, under Section 9 of the Hindu Marriage Act, the foundation of the right to bring a suit for restitution of conjugal rights is the fundamental rule of matrimonial law that one spouse is entitled to the society and comfort of the other spouse, and where either spouse has abandoned or withdrawn from the society of the other without reasonable excuse or just cause, the Court should grant a decree for restitution. The Court has a duty to enquire into and pass a decree for restitution after satisfying itself that there is bona fide desire of the petitioner to resume matrimonial cohabitation and to render the rights and duties of matrimonial life. Before passing a decree, the Court must be satisfied that the respondent has without reasonable excuse withdrawn from the society of the petitioner and there is no legal ground why the decree should not be passed. The legal ground for refusing to grant relief may consist of in any of the grounds on which the respondent could have asked for a decree for judicial separation or for nullity of marriage or for divorce or any conduct on the part of the petitioner or fact tantamount to the petitioner taking advantage of her own wrong or any disability for the purpose of such relief. The two Courts below in the present case have considered the materials on record and have come to the concurrent conclusion that the defendant without reasonable cause has withdrawn from the society of the plaintiff and accordingly granted the relief of restitution. In this view of the matter this Court as a Second Appellate Court is not entitled to interfere with the aforesaid conclusion and finding which is based on a thorough scrutiny of the evidence as well as on proper application of law on the subject. The second contention of Mr. Rath must accordingly be rejected. 9. Both the contentions having failed, and no other contention having been raised, the Second Appeal is devoid of any merit and is accordingly dismissed, but in the circumstances there would be no order as to costs.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '69(1990)CLT102; I(1990)DMC281', 'ratiodecidendi' => '', 'respondent' => 'Ela Lachamma', 'sub' => 'Family', 'link' => null, 'circuit' => null ) ) $args = array( (int) 0 => '529963' ) $pattern = '/\(((0[1-9]|[12][0-9]|3[01])[.](0[1-9]|1[012])[.](17|18|19|20)[0-9]{2}).*\)/' $shops2 = nullinclude - APP/View/Case/meta.ctp, line 39 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
LAW: Section 494, Section 494, Section 11, Section 9(1, the Hindu Marriage Act, Section 494, Section 11, Section 11, Section 494, Section 11, Section 324A, Section 9, the Hindu Marriage Act, the Second Appeal
PERSON: G.B. Pattnaik, J.1, Rath, Rath, Rath, Explanation VIII, Chowdhury Prafulla Chandra Routrai, Indramani Baral, Krishna Asari, Anr, Adaikalam, Anil Behari, Latika Bala Dassi, Venkatapathi v. Salappa, Rath, Rath, Rath
CARDINAL: 2-3-1969, Four, 2, 3, two, two, 30, 425, 1, 337, 429, two, one, two, 9.
DATE: 1973, September, 1973, 8-3-1974, four years, the year 1969, four years, 1943, 1959, 1933 Mad
ORG: Ponada Poliga, IPC, Court, Court, Court, Court, IPC, the Civil Court, Court, Court, IPC, Court, the Civil Court, Court, Court, IPC, CPC, CLT, Court, the Criminal Court, the Civil Court, IPC, Hewthorn and Co., AIR, S.C. 566, AIR 1928 All, the Civil Court, the Civil Court, the Criminal Court, Court, Court, Court, Court, Court, a Second Appellate Court
GPE: S.D.J.M., Berhampur, Hollington, Shubrati, Shamsuddin
ORDINAL: Second, first, first, second, second
WORK_OF_ART: 1966 Mad