Seen. Heard. This is a suit for child maintenance. Perused the Plaint, written statement, the petition dated 05/10/20 under section 11 of the Code of Civil Procedure, 1908, and the suit record. Upon such perusal, it appears to the court that the defendant has come up with a petition dated 05/10/2020 with the prayer that the trial of the suit is barred under the principle of res judicata as per section of the Code.
The fact appears in the petition is that
there was a family suit (No. 30/2012) instituted by the plaintiff against the
defendant and the suit was decreed on the contest. In that suit, the minor in
question was also decreed to have an entitlement to child maintenance at the
rate of TK 700 monthly from his father, who is the defendant of the instant
suit. Then, an execution case (family) No. 19/2013 was filed accordingly.
Thereafter, upon the payment of unpaid dower money by the defendant to the
mother of the minor in question, the suit was withdrawn by the latter on
compromise. The defendant claims that since then, he has been paying child
maintenance to her minor child, the plaintiff of the instant suit, through the NGO
named BLAST. He also claims that the mother of the child, Mst. Rozina Bibi has
been taking up money from the defendant in terms of maintenance of her custodian
child. Because the issue of child maintenance with regard to the subject matter
of the instant suit is already adjudged in another suit between the same parties,
it is prayed that the court should not go with the trail of the instant suit. The
defendant petitioner claimed that the trial of the previous suit is to be barred by
the principle of Res Judicata.
No doubt, this principle prohibits
adjudication of the same issue between the same parties more than once. However,
in legal parlance, the principle of Res Judicata is of the question of law and
facts, and such facts and issues ought to be proved or not proved at trial with
evidence. In addition to fact is that the instant suit is for child maintenance,
it is also the legal position is that non-payment of child maintenance at a
time causes new cause of actions against the person who is liable to pay. Moreover,
although there is no skepticism that the earlier suit was ‘finally heard and
decided, and the disputed issue was settled, it cogently appears to the court
that before taking further evidence at trial, the court finds no other way than
proceeding with the suit in order to decide whether the defendant has actually been
paying maintenance for the child in question. Hence, the court is of view that the
latter suit having new facts should go into the trial for its adjudication
irrespective of the plea raised by the defendant at this stage of the suit. So,
in such a situation, it is hence ordered that the petition dated 05/10/2020 is
not allowed. The next date is 10/01/18 for FPH for both sides.