ORDER Deoki Nandan, J.
1. This revision is directed against an order dated the 5th Dec., 1980 of the Court of First Additional District Judge, Allahabad holding that the Court had jurisdiction to proceed with the trial of the petition for restitution of conjugal rights that had been made by the opposite party wife. This order was passed on an application dated the 24th July, 1980 which is paper No. 23-C made by the applicant husband and the objection thereto dated the 31st July 1980 which is paper No. 25-C on the lower Court record. The prayer made in the application 23-C was for dismissal of the suit filed by the wife and the registration of the counterclaim filed by the husband as an original suit. The counter-claim was, however sought to be withdrawn by two subsequent applications 31-C and 38-C, which was allowed by a subsequent order dated the 11th Feb., 1981 of the Court of the First Additional District Judge, though without permission to file a fresh suit on the same cause of action.
2. The opposite party wife filed the petition for restitution of conjugal rights In the District Court, Allahabad on the 13th Dec., 1979. A written statement was filed on the 26th Feb. 1980, by the applicant husband making all kinds of allegations against the opposite party wife and even seeking a decree of divorce by way of a counter-claim. The opposite party wife had also moved an application under Section 24 of the Hindu Marriage Act to which a reply was filed by the applicant husband on the 27th March, 1980. The ground, on which the application 23-C dated the 24th July, 1980 was made, was that the applicant husband had filed a Suit No. 51-A of 1979 in the Court of the District Judge, Hoshangabad, Madhya Pradesh, for restitution of conjugal rights under Section 9 of the Hindu Marriage Act; that the suit was decreed with costs on the 14th January, 1980; that the opposite party wife had full knowledge of the decree; and that the dispute between the parties having been decided by the Hoshangabad Court, the District Court at Allahabad had no jurisdiction to proceed with the trial of the wife's petition for restitution of conjugal rights under Section 9 of the Hindu Marriage Act. It was said that a certified copy of the judgment of the Hoshangabad Court had been filed in the Court of the Special Judicial Magistrate Allahabad. It was further said that the applicant husband got information of the passing of the decree in the said suit by the Hoshangabad Court when he went to his home at Itarsi on or about 19th May, 1980 and brought the certified copy from there and gave it to his counsel at Allahabad. Certified copies of the judgment and decree of the Hoshangabad Court were, however, filed on the 20th Sept., 1980 in the Court of the First Additional District Judge, Allahabad. The judgment of the Hoshangagad Court shows that the decree for restitution of conjugal rights was passed ex parte against the opposite party wife on the basis of the evidence of the applicant husband's brother, Having been registered as Suit No. 51-A of 1979 and having been decided on the 14th Jan., 1980, the suit before the Hoshangabad Court appears to have been earlier in fact as well as in law, than the suit initiated in the District Court, Allahabad by the opposite party wife's petition under Section 9 of the Hindu Marriage Act on the 13th Dec., 1979. The decree of the Hoshangabad Court stands. It was produced before the learned First Additional District Judge. It was not suggested that the District Court, Hoshangabad was not a Court competent to pass that decree. It was passed in the exercise of the matrimonial jurisdiction of that Court. It was relevant under Section 41 of the Indian Evidence Act and is good and binding until set aside. It was not suggested that it was obtained by fraud or collusion.
3. On inquiry made by me from the learned counsel for the opposite party wife during the course of the hearing of the revision, I was informed that no steps whatsoever were taken by the opposite party wife to have the judgment and decree of the Hoshangabad Court, which was passed ex parte against her, set aside on the ground that the summons of that suit had not been served on her or that she was prevented by any sufficient cause from appearing at the hearing of that suit before the Hoshangabad Court.
4. On the aforesaid facts. It appears clear to me that the trial of the suit for restitution of conjugal rights by the District Court, Allahabad between the same parties was barred by Section 11 of the Civil P. C. Yet the learned First Additional District Judge held that he had jurisdiction to proceed with the trial of the suit for restitution of conjugal rights on the petition of the opposite party wife. The reason given by him in the order sought to be revised is that the applicant husband concealed in the written statement filed by him on 26th Feb., 1980 in reply to the wife's petition, the fact of the Institution of his suit for restitution of conjugal rights in the Hoshangabad Court and even that he had obtained a decree therein on 14th Jan., 1980. It does appear rather strange that the applicant husband made all sorts of allegations in the written statement filed by him and even made a counter-claim, but did not state a word about the petition for restitution of conjugal rights which he had instituted earlier in the District Court at Hoshangabad. The explanation suggested in the application by the applicant husband was that he got information of the decree only when he went home to Itarsi on or about 19th May, 1980. It is rather extraordinary for a man to say that he was not aware of the course of the proceedings in a suit for restitution of conjugal rights instituted by him against his wife. The record does show that the applicant husband was posted in Assam on army duty and the judgment of the Hoshangabad District Court shows that it was the applicant husband's brother who had appeared as a witness for him. Be that as it may, even if it be true that the applicant husband deliberately concealed the fact of the institution of his suit for restitution of conjugal rights in the Hoshangabad Court and the passing of the ex parte decree therein against the opposite party wife, that could not confer jurisdiction on the District Court Allahabad to proceed with the trial of the suit instituted by the opposite party wife for restitution of conjugal rights against the husband, even after the judgment and decree of the Hoshangabad Court had been produced before it. At best the fact of the institution of the suit at Hoshangabad may have been concealed by the applicant husband in order to obtain an ex parte decree against the opposite party wife, but she did not make a complaint that the summons of the suit in the Hoshangabad Court was not served on her or that she was prevented by sufficient cause from appearing at the hearing of that suit. The allegation made by the opposite party wife in her objection that she had no knowledge of the decree passed by the Hoshangabad Court is of no consequence, inasmuch as she did not follow up that allegation by having the ex parte decree set aside on the ground that she had no notice or knowledge of the date of hearing fixed by the Hoshangabad Court.
5. The learned counsel for the opposite party wife suggested that the plea of res judicata has to be taken by a party by way of a pleading in the proper form and has to be tried after raising an issue on that point. It is true that no such plea was taken by the husband in his written statement, nor has a copy of his petition under Section 9 of the Hindu Marriage Act in the Hoshangabad Court been filed. But in view of the provisions of Section 41 of the Indian Evidence Act and the fact that the plea of the want of jurisdiction of the District Court, Allahabad, to proceed further with the trial of the suit was raised by an application in writing and the opposite party wife did file a written reply to it, I do not think that the cause of justice will, in any manner, be advanced by directing the applicant husband to amend his written statement raising the plea which he raised by the application dated 24th July, 1980, and then after raising an issue, to decide the matter that way. The substance of the matter has been brought out by the material on the record, and in the face of the decree of the Hoshangabad Court, the jurisdiction of the District Court at Allahabad to proceed with the trial of the suit any further does clearly appear to be barred by Section 11 of the Civil P. C.
6. This revision must, therefore, be allowed. But it is the applicant husband who has himself to blame for the rather piquant course of proceedings in the present case, He must, therefore, pay the entire costs of the opposite party wife in the District Court as well as in this Court, I must also clarify that the dismissal of the opposite party wife's suit for restitution of conjugal rights by this order will not have the effect of wiping out the order under Section 24 of the Hindu Marriage Act, which was also passed on the 5th Dec., 1980, granting the opposite party wife maintenance pendente lite at the rate of Rs. 60/- per month, and Rs. 250/- for the expenses of the suit in the trial Court, and has been confirmed by judgment dated 14th May, 1981 of this Court (per Hon'ble N. D. Ojha, J.) in Civil Revision No. 60 of 1981. The order for payment of maintenance pendente lite will remain operative up to the date of this judgment and the maintenance pendente lite shall be worked out and paid accordingly, and if not paid shall be recoverable by execution. The sum of Rs. 250/- towards the expenses payable under that order shall if paid be adjusted against the costs taxed in the decree against the applicant husband.
7. The revision is allowed. The impugned order dated 5th Dec. 1980 of the First Additional District Judge, Allahabad, on application C-23 and objection C-25 in Suit No. 244 of 1979 of the Court of the District Judge, Allahabad, is set aside. Instead that suit is dismissed but on the peculiar facts of the case, it is directed that the respondent husband, who is the applicant in this Court, shall pay the full costs throughout in the trial Court as well as in this Court, of the petitioner wife who is the opposite party in this Court, subject to adjustment of the sum of Rs. 250/- awarded to her for expenses of the proceedings by the order dated the 5th Dec., 1980 of the First Additional District Judge, Allahabad, if that has been paid, or when it is recovered from, or paid by the husband.