C.R. No. 7750 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No. 7750 of 2010 Date of Decision: 29.11.2010 Puja Chopra .... Petitioner Versus Amit Chopra ... Respondent CORAM: HON'BLE MR. JUSTICE ALOK SINGH Present : Mr. H.S. Bedi, Advocate for the petitioner 1. Whether Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporters or not? Yes 3. Whether the judgment should be reported in the Digest? Yes ALOK SINGH, J. (ORAL) Present petition is filed challenging the order dated 7.9.2010 passed by Addl. District Judge, Ludhiana whereby an application moved by the wife-petitioner under Section 151 CPC for enhancement of interim maintenance was rejected. Undisputedly on an application under Section 24 of the Hindu marriage Act, learned Court below was pleased to direct the husband to pay pendente lite maintenance to wife ` 3,000/- per month and for the minor son ` 2,000/- per month during the pendency of matrimonial case. Learned counsel for the petitioner vehemently argued that at the time of hearing on the application seeking pendente lite maintenance, husband has taken wrong stand that his income is only C.R. No. 7750 of 2010 2 ` 3000/- per month and wife does not controvert that stand of the husband, hence, pendente lite maintenance was granted on the lower side. Learned counsel for the petitioner further argues that now wife is entitled to receive more pendente lite maintenance on the basis of evidence placed on record after the disposal of the application under Section 24 of the Hindu Marriage Act. Section 11 of Code of Civil Procedure and Explanation IV thereof reads as under:- “11. Res judicata. - No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. Explanation IV. - Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.” In the opinion of this Court, any plea or defence which ought to have been taken shall not be permitted to be taken in a subsequent proceeding and shall be barred by principle of res judicata. Hence, in the opinion of this Court wife can not be permitted to move second application seeking more maintenance C.R. No. 7750 of 2010 3 and second application certainly would be barred by principle of res judicata. It is no more res integra that principle of res judicata would also be available during the pendency of the suit. If previous application is decided during the pendency of the suit, the subsequent application seeking same relief during the suit would be barred by principle of res judicata. Moreover, if wife wants to claim regular maintenance on the basis of income of the husband, she has still right to move an application either under Section 125 of the Code of Criminal Procedure or under the provision of Hindu Adoption and Maintenance Act and any observation made on application under Section 24 of the Hindu Marriage Act shall not be taken as res judicata in a regular proceeding under Section 125 or under Hindu Adoption and Maintenance Act. In view of this, I am not inclined to interfere with the impugned order. Dismissed. (ALOK SINGH) 29.11.2010 JUDGE reena