TATIA, J. - (1.) HEARD learned counsel for the parties.
(2.) THIS appeal is against the judgment dated 13. 9. 2002 passed by the learned Addl. District Judge, Sojat Camp Jaitaran District Pali in Divorce Case No. 30/99. The trial Court passed the divorce decree in favour of the respondent-husband. Hence, this appeal has been preferred by the wife-non-applicant-appellant. It will be worthwhile to mention that the present divorce petition was filed by the respondent-husband in the court of Addl. District Judge, Sojat camp Jaitaran on 24. 11. 1999 with the allegation of cruelty against the appellant-wife. It appears from the facts of the case that marriage of the appellant and respondent solemnized on 31. 1. 1990. The respondent-husband's contention is that wife treated him with cruelty and ultimately after more than nine years, the appellant-wife created dispute n 9. 11. 1999 in front of house of the appellant and insisted for going to her father's house. Number of persons gathered there and the non-applicant-wife threatened that in case she will not be sent to her father's house forthwith, she will commit suicide. In view of the said threat, husband's family members with other persons, took the wife to the wife's parents' house and since then that is from 9. 11. 1999, the wife is residing in the parents' house. During the pendency of the said divorce petition, the wife submitted a petition under Section 9 of the Hindu Marriage Act for restitution of conjugal rights in the court of District Judge, Merta. Though the wife submitted the petition under Section 9 of the Hindu Marriage Act subsequent to the filing of the divorce petition, the said petition under Section 9 of the Hindu Marriage Act filed by the wife, was decided by the learned District Judge, Merta vide judgment and decree dated 17. 7. 2002. While deciding the petition of the wife moved under Section 9 of the Hindu Marriage act, the learned District Judge, Merta decided issue in favour of the appellant and held that the non-applicant husband left the wife without any reasonable cause and, therefore, the wife is entitled to decree for restitution of conjugal rights. While deciding the said petition under Section 9 of the Hindu Marriage act, the learned District Judge, Merta rejected the husband's plea that wife has committed cruelty upon the husband. In view of the facts mentioned above, it is clear that the crucial questions for decision before both the courts below were whether the wife was turned out by the husband in the month of November, 1999 without any reasonable cause and whether the wife has committed any cruelty towards the husband before November, 1999. As stated above, though the divorce petition was filed earlier in time but it appears from the record that no application under Section 10 CPC was submitted by any of the parties for staying the proceedings in subsequently filed petition under Section 9 of the Hindu Marriage Act. Not only this, the wife-appellant, in the present appeal, merely submitted certified copy of the judgment and decree dated 17. 7. 2002 in the trial court i. e. before the Court of Addl. District Judge, Sojat camp Jaitaran and when the said certified copy of the judgment and decree dated 17. 7. 2002 was tendered in evidence, an objection was raised from the side of the husband about the admissibility of the document but that was rejected by the trial Court and the certified copy of the judgment passed in petitioner under Section 9 of the Hindu Marriage act, dated 17. 7. 2002 was exhibited as Ex. NA-3. Though certified copy of the judgment was produced by the appellant-wife in defence to the divorce petition but she did not amend the written statement nor prayed for framing any issue on the basis of the plea of res judicata as both the issues involved in the present divorce petition were also involved in the petition filed by the wife under Section 9 of the Hindu Marriage Act. The learned counsel for the appellant vehemently submitted that the trial Court committed serious error of law in recording finding just contrary to the finding which has been recorded by the competent court of law in appellant's petition under Section 9 of the Hindu Marriage Act in its judgment dated 17. 7. 2002. Not only this, but the trial Court even did not look into the said judgment dated 17. 7. 2002. According to he learned counsel for the appellant, the judgment of the court below vitiates because of non-consideration of material piece of evidence, i. e. the judgment dated 17. 7. 2002 (Ex. NA-3) passed by the court of the District Judge, Merta in petition under Section 9 of the Hindu Marriage Act. It is also submitted that in view of the finding recorded in the judgment dated 17. 7. 2002 and which has attained the finality, as no appeal has been preferred by the husband against the judgment dated 17. 7. 2002, the trial Court should have dismissed the divorce petition filed by the respondent-husband. The learned counsel for the respondent submitted that the plea of res judicata is required to be raised by the defendant is pleading and the court can decide the issue of res judicata in case the plea is raised by the defendant. Admittedly, the defendant-appellant in the divorce petition, did not raise the plea of res judicata, despite the fact that the learned District Judge, Merta decided the appellant's non-applicant's petition under Section 9 of the Hindu Marriage Act, before decision of the respondent's divorce petition. According to the learned counsel for the respondent, if the plea is not raised then the judgment recording finding can be considered as opinion of the court at the most. However, according to the learned counsel for the respondent, the respondent proved in case by positive evidence in his case and, therefore, the court below has not committed any error of law.
(3.) THE learned counsel for the respondent also submitted that the court can look into the evidence which has been recorded in the case itself and not the evidence recorded in any other case. It is also submitted that the reasons given on the issues are also not relevant for the purpose of deciding the issues raised in the respondent's divorce petition. THE only finding may be binding but in this case the plea of res judicata has not been raised by the appellant-non-applicant, therefore, that judgment itself could not have been considered by the court below. The learned counsel for the respondent further submitted that all the evidence produced by the respondent totally proved the case of cruelty committed by the appellant against the respondent and his family members. I considered the submissions of the learned counsel for the parties and perused the facts of the case. ;