# High Court of Judicature at Allahabad #42867

- **Citation:** High Court of Judicature at Allahabad #42867
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-04-10
- **Bench:** Ashok Bhushan, Manoj Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/high-court-of-judicature-at-allahabad-42867-42867
- **Pages:** 18

## Headnote

Code
of
Civil
Procedure
Section-11-
'Resjudi-cata' explained-application under
guardian & Wards Act-decided on merit-by
which grand father given custody of minor
child-subsequent change of circumstances
when respondent being natural mother of
the
child-got
working-as
lecturerconsidering welfare of minor-mother being
natural guardian-can not be denied the
custody
of
minor
girl-principle
of
Resjudicata-has no application

Held: Para-17
The Apex Court in the above judgment
said that the terms of Section 11 of
C.P.C. would not be strictly applicable in
a case where decree was passed in terms
of compromise, however, principle of
estoppel would still apply.

Held: Para-22
There is one more reason on account of
which
we
are
of
the
view
that
Application No.19 of 2012 filed by the
respondent cannot be held to be barred
by Section 11 of C.P.C. or principle of
estoppel. There are series of judgments
taking the view that the order of custody
of a child under the provisions of the
1890 Act are temporary in nature and
are in the nature of interlocutory order
which cannot be held to be final
adjudication.
The
appointment
of
guardian to one person and custody of
child given at one set of circumstances
may no longer be beneficial to the
welfare of the child and the custody and
guardianship can be changed from time
to time looking to the relevant facts and
circumstances. The Apex Court in Rosy
Jacob's case (supra) held that all orders
relating to the custody are temporary in
nature. Following was laid down in
paragraph 18 of the judgment:

Held: Para-28
In view of the foregoing discussions, we
are of the view that application filed by
the respondent could not have been
barred by res-judicata or estoppel and
the respondent had every right to
maintain the application and pray for
custody.

CPC-Order XXIII, Rule 3-A- Application
decided in terms of compromise-when
the respondent being natural mother of
minor girl was unemployed-by change of
circumstances after getting appointed as
lecturer in Govt. Girls Inter Collegemov

## Text

_Characters 0–39,946 of 58,907. This is a partial read: ask again with offset=39946 for what follows._

450 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
Collector under sub-section (3) of section
198 of the Act.

12. I am of the opinion that once the
irregularity in the process of allotment
was pointed out by the aggrieved persons,
i.e., the petitioners, it was incumbent upon
the Assistant Collector in-charge, who
was dealing with the matters, to return the
application for presentation before the
Collector, who was competent to deal
with such matters in view of amended
sub-section (2) of section 198 of the Act
vide U.P. Act No. IV of 1969 and in view
of sub-section (3) of section 198 of the
Act vide U.P. Act No. 35 of 1970, but the
Assistant Collector in-charge had failed to
return the application for presentation
before the Collector and exercised power
which was not vested in him. The learned
Member, Board of Revenue although had
held that the order passed by the Sub
Divisional Officer is without jurisdiction,
but he also failed in performing his duties
being a supervisory authority of the
revenue courts relating with such matters
taking note of the statutory right conferred
by the statute to the petitioner to seek
cancellation of the lease in view of subsection (2) of section 198 of the Act vide
U.P. Act No. IV of 1969 and in view of
sub-section (3) of section 198 of the Act
vide U.P. Act No. 35 of 1970, by giving a
liberty to the petitioners either to
approach the Collector or by directing the
Collector to look into the grievance of the
petitioners
on
merit
and
pass
an
appropriate order on the application of
thte petitioners in accordance with law.

13. Sri Tyagi has submitted that the
petitioner are not aggrieved persons
within the meaning of sub-section (1) of
section 198 of the Act and they do not fall
in the eligibility zone for grant of lease
and they have filed application only on
the ground that on the leased land, their
old trees are standing. This Court in the
case of Munshi Vs. State of U.P. and
Others 2012 (11) ADJ 70 has held that the
persons, who is in possession of the
leased land and if the lease has been
granted
without
evicting
him
in
accordance with the provisions contained
under section 122-B of the Act, he can
always be treated to be a person aggrieved
and he can maintain the application for
cancellation of the lease.

14. Reverting back to the facts of
this case, as I have noticed and found that
there can be no illegality in the order
passed by the learned Member, Board of
Revenue, so far as it is held that the order
cancelling the lease by the Sub Divisional
Officer was without jurisdiction, but
simultaneously,
looking
into
the
grievance of the petitioners on merit,
which is still unredressed, this Court
provides an opportunity to the petitioners
to approach the Collector for cancellation
of the lease granted in favour of the father
of respondent nos. 5/1 and 5/2.

15. In case such application is filed by
the petitioners, along with a certified copy of
the order of this Court, the Collector
concerned is directed either to decide the
application of the petitioners himself or by
directing it to be decided by any other
Additional Collector, as the case may be,
without entertaining any objection to the
limitation. The parties are at liberty to lead
their evidence and advance their submissions
before the Collector concerned.

16. With the aforesaid observation /
direction, this writ petition is disposed of.
---------
APPELLATE JURISDICTION
1 All Ram Awadh and another Vs. The Board of Revenue Allahabad and others
451
CIVIL SIDE
DATED: ALLAHABAD 10.04.2013

BEFORE
THE HON'BLE ASHOK BHUSHAN,J.
THE HON'BLE MANOJ MISRA, J.

First appeal No. 212 of 2013

Smt. Pushpa and another

 ...Respondents/appellants
Versus
Smt. Anshu chaudhary . ..Respondent

Counsel for the Petitioners:
Sri Sumit Daga, Sri Alok Kumar Singh

Counsel for the Respondent:
Sri S.K.Tripathi, Sri Shailendra Singh
Sri M.A. Qadeer

Code
of
Civil
Procedure
Section-11-
'Resjudi-cata' explained-application under
guardian & Wards Act-decided on merit-by
which grand father given custody of minor
child-subsequent change of circumstances
when respondent being natural mother of
the
child-got
working-as
lecturerconsidering welfare of minor-mother being
natural guardian-can not be denied the
custody
of
minor
girl-principle
of
Resjudicata-has no application

Held: Para-17
The Apex Court in the above judgment
said that the terms of Section 11 of
C.P.C. would not be strictly applicable in
a case where decree was passed in terms
of compromise, however, principle of
estoppel would still apply.

Held: Para-22
There is one more reason on account of
which
we
are
of
the
view
that
Application No.19 of 2012 filed by the
respondent cannot be held to be barred
by Section 11 of C.P.C. or principle of
estoppel. There are series of judgments
taking the view that the order of custody
of a child under the provisions of the
1890 Act are temporary in nature and
are in the nature of interlocutory order
which cannot be held to be final
adjudication.
The
appointment
of
guardian to one person and custody of
child given at one set of circumstances
may no longer be beneficial to the
welfare of the child and the custody and
guardianship can be changed from time
to time looking to the relevant facts and
circumstances. The Apex Court in Rosy
Jacob's case (supra) held that all orders
relating to the custody are temporary in
nature. Following was laid down in
paragraph 18 of the judgment:

Held: Para-28
In view of the foregoing discussions, we
are of the view that application filed by
the respondent could not have been
barred by res-judicata or estoppel and
the respondent had every right to
maintain the application and pray for
custody.

CPC-Order XXIII, Rule 3-A- Application
decided in terms of compromise-when
the respondent being natural mother of
minor girl was unemployed-by change of
circumstances after getting appointed as
lecturer in Govt. Girls Inter Collegemoved application for getting custody of
her
minor
child-whether
second
application maintainable? held-"Yes'

Held: Para-31
The Durga Prasad Tandon's case (supra)
was a case where suit was filed for
setting aside the decree which was
obtained
by
compromise.
In
above
circumstances the Court held that bar of
Order XXIII, Rule 3-A of C.P.C. shall
apply. The said case has no application in
the
present
case
since
firstly
the
subsequent application was not for
setting aside the earlier order passed on
compromise and secondly the application
was filed on the basis of changed
circumstances. In view of the aforesaid,
we are of the view that Application
452 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
No.19 of 2012 was not barred by Order
XXIII, Rule 3-A of C.P.C.

Case Law discussed:
2011 All. C.J. 700=(2011) 3 SCC 408; 2000(2)
379; 1973(1) SCC 840; 1989 Supp (2) SCC
627; AIR 1964 SC 82; (1886) ILR 8 All 324, p.
32; AIR 1967 SC 591; AIR 1970 SC 406; AIR
2000 Madhya Pradesh 1; (1998) 1 SCC 112;
(2001) 4 SCC 71; AIR 1992 Kerala 290;

(Delivered by Hon'ble Ashok Bhushan, J.)

1. This first appeal has been filed by
the appellants, who are grandmother and
grandfather of a minor girl Km. Resha
aged about 6 years, against the judgment
and order dated 27th February, 2013
passed by the Additional Principal Judge,
Family Court, Meerut by which the Court
has allowed the application filed by the
respondent, the mother of child, for
custody of the child.

2. We have heard Sri Sumit Daga
and Sri Alok Kumar Singh learned
counsel for the appellants and Sri M.A.
Qadeer, Senior Advocate, assisted by Sri
S.K. Tripathi for the respondent.

3. Brief facts giving rise to this first
appeal are necessary to be noted. The
respondent Smt. Anshu Chaudhary was
married on 6th December, 2005 with
Amit
Chaudhary,
the
son
of
the
appellants. Km. Resha, a girl child, was
born from the wedlock on 28th January,
2007. The husband of the respondent died
on 8th December, 2010 in a car accident.
The respondent along with her daughter
continued to live with appellants till 28th
February, 2011 after which it is alleged
that respondent along with her child were
turned
out
from
the
house.
The
respondent started living with her parents
at T.P. Nagar, Meerut. The respondent's
further case is that on 18th March, 2011
the appellants with their daughter and
son-in-law came to T.P. Nagar, residence
of the respondent's father, and snatched
Km. Resha with regard to which a
complaint was also submitted. Smt.
Pushpa,
appellant
No.1,
filed
an
application being Application No.18 of
2011 under Section 7 of the Guardians
and Wards Act, 1890 (hereinafter referred
to as the 1890 Act) praying that she be
appointed as guardian of the minor Km.
Resha. Smt. Anshu Chaudhary also filed
an application being Application No.19 of
2011 praying that Km. Resha be given in
her custody. In both the cases a joint
application
for
compromise
was
submitted by appellant Smt. Pushpa and
respondent Smt. Anshu Chaudhary that
Smt. Pushpa shall be guardian of Km.
Resha with whom the minor shall live and
the minor in vacation shall live with her
mother. The Court on the basis of the
compromise passed an order on 29th
October, 2011. In the end of the year
2011, the respondent was appointed as
Lecturer in Government Girls Inter
College, Bareilly where she joined and
started working. The respondent filed an
application under Section 10/12 of the
1890 Act being Application No.19 of
2012 in the Court of Principal Judge,
Family
Court, Meerut
praying
that
custody of minor child be given to her
who is her natural mother. In the
application it was pleaded that minor is
not getting good education and she is not
being looked after well. It was pleaded
that respondent is earning and shall well
look after the child. Affidavits were filed
by the respondent in support of her case.
The statement of respondent was also
recorded by the Principal Judge, Family
Court and she was cross examined by the
appellants. Affidavits were also filed by
1 All Smt. Pushpa and another Vs. Smt. Anshu Chaudhary
453
the appellants and the statements of the
appellants were also recorded. The
Additional Principal Judge, Family Court
by judgment and order dated 27th
February, 2013 allowed the application of
the respondent and directed the appellants
to handover the custody of child within 30
days. This first appeal under Section 19 of
the Family Court Act has been filed by
the appellants against the judgment and
order of the trial Court.

4.

Learned
counsel
for
the
appellants, challenging the order of the
Additional Principal Judge, Family Court,
submitted that the application filed by
respondent being Application No.19 of
2012 was barred by principles of resjudicata in view of the fact that earlier the
custody was given to appellant No.1 on
the basis of a compromise dated 29th
October, 2011 between the parties. It is
submitted
that
the
respondent,
if
aggrieved by the earlier order of the Court
dated 29th October, 2011 appointing
appellant No.1 as guardian, should
challenge the earlier order dated 29th
October, 2011 instead of filing another
application. It is submitted that earlier
decision
dated
29th
October,
2011
operated
as
res-judicata
and
the
Application No.19 of 2012 was liable to
be dismissed on this ground alone. It is
further submitted that appellants, who are
grandmother and grandfather of the child,
are financially well off to take care of all
the needs of the child. It is submitted that
child is studying in an institution and all
expenses of the child are being borne by
the appellants. It is submitted that
appellant No.2, who was working as
Electrician in Daurala Sugar Mill, is also
running a medical store from where
sufficient
income
is
received.
The
appellants have also taken life insurance
policy in favour of the child. It is further
stated that appellants have also engaged a
home tutor to teach the child at home. The
appellants are fully competent to take care
of the child and there was no occasion to
change the guardianship or to give
custody of the child to the respondent.

5. Learned counsel for the appellant
has placed reliance on judgment of the
Apex
Court
in
the
case
of
M.
Nagabhushana vs. State of Karnataka
and others reported in 2011 All. C.J.
700=(2011) 3 SCC 408 and judgment of a
learned Single Judge of this Court in the
case of Durga Prasad Tandon and
others vs. Gaur Bramhan Sabha,
Nainital and others reported in 2000(2)
Allahabad Rent Cases 379.

6.

Sri
M.A.
Qadeer,
Senior
Advocate, appearing for the respondent,
refuting the submissions of learned
counsel for the appellants, submitted that
the Additional Principal Judge, Family
Court has rightly allowed the application
filed by the respondent, mother of the
child. It is submitted that earlier decision
dated 29th October, 2011 was only a
compromise decision and was not a
decision on merits, hence principles of
res-judicata are not attracted. It is
submitted that respondent, the mother, is
working as teacher in Government Girls
Inter College and receiving a salary of
about 32,000/- per month and is fully
competent to take care of all the needs of
the child. It is stated that mother being
natural guardian is entitled to have
custody of the child. It is further
submitted
that
circumstances
have
changed after 29th October, 2011 and
application filed by the respondent for
custody
of
the
child
was
fully
maintainable.
454 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

7. Sri Qadeer, Senior Advocate,
appearing for the respondent has placed
reliance on a judgment of the Apex Court
in the case of Rosy Jacob vs. Jacob a
Chakramakkal reported in 1973(1) SCC
840.

8.

We
have
considered
the
submissions of learned counsel for the
parties and have perused the record.

9. From the pleadings on the record
and submissions made by learned counsel
for the parties, following issues emerge
for consideration in the present appeal:-

(i)Whether earlier order of the
Principal Judge, Family Court dated 29th
October, 2011 giving custody of child to
appellant
No.1
on
the
basis
of
compromise submitted by both the
parties, shall operate as res-judicata in
subsequent application No.19 of 2012
filed by the respondent praying for
custody of the child?

(ii)Whether Application No.19 of
2012 filed by the respondent was barred
by the provisions of Order XXIII, Rule
3A of C.P.C.?

(iii)Who among, mother on one hand
and grand parents on other hand, is best
entitled to have custody of the child
taking into consideration relevant facts
and circumstances specially the welfare of
the child?

10. Before we proceed to consider
the issues, as noted above, it is necessary
to have a look over the relevant statutory
provisions governing the field. The 1890
Act was enacted to consolidate and amend
the law relating to guardian and wards.
Section 7 of the 1890 Act provides for
power of the Court to make order as to the
guardianship. Section 8 provides for
persons entitled to apply for orders.
Section 9 provides that application in
respect of guardianship of a person shall
be made to the District Court having
jurisdiction to the place. Section 10
provides for form of the application and
the facts which are required to be stated in
the application. Section 12 empowers the
Court to make interlocutory order for
production
of
minor
and
interim
protection of person and property. Section
13 provides for hearing of evidence
before making the order. Section 17
enumerates the matters to be considered
by the Court in appointing guardian.
Section 17 of the 1890 Act, which is
relevant for the purpose, is quoted below:-

"17. Matters to be considered by
the Court in appointing guardian.- (1)
In appointing or declaring the guardian of
a minor, the Court shall, subject to the
provisions of this section, be guided by
what, consistently with the law to which
the minor is subject, appears in the
circumstances to be for the welfare of the
minor.

(2) In considering what will be for
the welfare of the minor, the Court shall
have regard to the age, sex and religion of
the minor, the character and capacity of
the proposed guardian and his nearness of
kin to the minor, the wishes, if any, of a
deceased parent, and any existing or
previous
relations
of
the
proposed
guardian with the minor or his property.

(3) If the minor is old enough to form
an intelligent preference, the Court may
consider that preference.
1 All Smt. Pushpa and another Vs. Smt. Anshu Chaudhary
455

* * * * *

(5) The Court shall not appoint or
declare any person to be a guardian
against his will."

11. The Hindu Minority and
Guardianship
Act,
1956
(hereinafter
referred to as the 1956 Act) was enacted
to amend and codify certain parts of the
law relating to minority and guardianship
among Hindus. Section 5 of the 1956 Act
gives overriding effect to the Act. Section
6 deals with natural guardian of a Hindu
minor. Section 6(a) which is relevant, is
quoted below:-

"6. Natural guardians of a Hindu
minor - The natural guardian of a Hindu
minor, in respect of the minor's person as
well as in respect of the minor's property
(excluding his or her undivided interest in
joint family property), are-

(a) in the case of a boy or unmarried
girl- the father, and after him, the mother,
provided that the custody of a minor who
has not completed the age of five years
shall ordinarily be with the mother;

........"

12. Section 13 of the 1956 Act
enumerates welfare of minor to be
paramount consideration, which is quoted
below:-

"13. Welfare of minor to be
paramount consideration - (1) In the
appointment or declaration of any person
as guardian of a Hindu minor by a court,
the welfare of the minor shall be the
paramount consideration.

(2) No person shall be entitled to the
guardianship by virtue of the provisions
of this Act or of any law relating to
guardianship in marriage among Hindus,
if the court is of opinion that his or her
guardianship will not be for the welfare of
the minor."

13. Now we come to the first issue
as to whether application filed by the
respondent being Application No.19 of
2012 was barred by principles of resjudicata. Section 11 of the Code of Civil
Procedure provides for res-judicata. For
applicability of Section 11 of C.P.C.
Certain ingredients have to be fulfilled
which have been enumerated in Section
11 itself. Section 11 of the C.P.C. is
quoted below:-

"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
I-
The
expression
"former suit" shall denote a suit which has
been decided prior to the suit in question
whether or not it was instituted prior
thereto.

Explanation II.- For the purposes of
this section, the competence of a Court
shall be determined irrespective of any
provisions as to a right of appeal from the
decision of such Court.
456 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

Explanation III.- The matter above
referred to must in the former suit have
been alleged by one party and either
denied
or
admitted,
expressly
or
impliedly, by the other.

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.

Explanation V.- Any relief claimed
in the plaint, which is not expressly
granted by the decree, shall, for the
purposes of this section, be deemed to
have been refused.

Explanation VI- Where persons
litigate bona fide in respect of public right
or of a private right claimed in common
for themselves and others, all persons
interested in such right shall, for the
purposes of this section, be deemed to
claim under the persons so litigating.

*[Explanation VII.- The provisions
of this section shall apply to a proceeding
for the execution of a decree and
reference in this section to any suit, issue
or former suit shall be construed as
references, respectively, to proceedings
for the execution of the decree, question
arising in such proceeding and a former
proceeding for the execution of that
decree.

Explanation VIII.-An issue heard and
finally decided by a Court of limited
jurisdiction, competent to decide such
issue, shall operate as res judicata in as
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."

14. To constitute a matter resjudicata, the following conditions must
exist:-

(i)The
matter
directly
and
substantially in issue in the subsequent
suit or issue must be the same matter
which was directly and substantially in
issue either actually (explanation III) or
constructively (explanation IV) in the
former suit.

(ii)The former suit must have been a
suit between the same parties or between
parties under whom they or any of them
claim. Explanation VI is to be read with
this condition.

(iii)The parties as aforesaid must
have litigated under the same title in the
former suit.

(iv)The court which decided the
former suit must have been a court
competent to try the subsequent suit or the
suit in which such issue has been
subsequently raised. Explanation II is to
be read with this condition.

(v)The
matter
directly
and
substantially in issue in the subsequent
suit must have been heard and finally
decided by the court in the first suit.
Explanation V is to be read with this
condition.

15. The Apex Court in the case of
Pandurang Ramchandra Mandlik and
another vs. Shantibai Ramchandra
Ghatge and others reported in 1989 Supp
(2) SCC 627, had occasion to consider the
expression "heard and finally decided". It
1 All Smt. Pushpa and another Vs. Smt. Anshu Chaudhary
457
was held by the Apex Court that
expression "heard and finally decided"
means a matter on which the court has
exercised its judicial mind and has after
argument and consideration come to a
decision on a contested matter. Following
was observed by the Apex Court in
paragraph 20 of the said judgment:-

"20. The expression 'heard and
finally decided' in Section 11 means a
matter on which the court has exercised
its judicial mind and has after argument
and consideration come to a decision on a
contested matter. It is essential that it
should have been heard and finally
decided...."

16. Present is a case where in earlier
applications
filed
for
custody
and
guardianship, a compromise application
was submitted by appellant No.1 and
respondent on 29th October, 2011 on the
basis of which appellant No.1 was
appointed as guardian. Whether on the
basis of an order passed on compromise,
the plea of res-judicata can be sustained is
the
issue
which
had
come
for
consideration in several cases before the
Apex Court. In the case of Sunderbai
and
another
vs.
Devaji
Shankar
Deshpande reported in AIR 1964 SC 82,
the Apex Court had occasion to consider
the issue "whether the suit was barred by
res-judicata by reason of consent decree
passed in Suit No.291 of 1937". The Apex
Court laid down following in paragraph
12 of the said judgment:-

"12. The bar of 'res judicata'
however, may not in terms be applicable
in the present case, as the decree passed in
Suit No. 291 of 1937 was a decree in
terms of the compromise. The terms of
section 11 of the Civil Procedure Code
would not be strictly applicable to the
same but the underlying principle of
estoppel would still apply. Vide: the
commentary of Sir Dinshaw Mulla on
section 11 of the Civil Procedure Code at
page 84 of the 11th Edition under the
caption 'Consent decree and estoppel':

"The present section does not apply
in terms to consent decrees; for it cannot
be said in the cases of such decrees that
the matters in issue between the parties
'have been heard & finally decided' within
the meaning of this section. A consent
decree, however, has to all intents and
purposes the same effect as 'res judicata'
as a decree passed 'in invitum'. It raises an
estoppel as much as a decree passed 'in
invitum."

17. The Apex Court in the above
judgment said that the terms of Section 11
of C.P.C. would not be strictly applicable
in a case where decree was passed in
terms of compromise, however, principle
of estoppel would still apply.

18. Before we proceed further, it is
useful to recall a judgment of Justice
Mahmud in the case of Sita Ram vs.
Amir Begam reported in (1886) ILR 8
All 324, p. 332 in which learned Judge
has explained the differences between the
plea of res-judicata and an estoppel.
Following was laid down by Justice
Mahmud:-

"Perhaps the shortest way to describe
the difference between the plea of res
judicata and an estoppel, is to say that
while the former prohibits the court from
entering into an inquiry at all as to a
matter already adjudicated upon, the latter
prohibits a party after the inquiry has
already been entered upon, from proving
458 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
anything which would contradict his own
previous declaration or acts to the
prejudice of another party who relying
upon those declaration or acts to the
prejudice of another party has altered his
position. In other words, res judicata
prohibits an inquiry in limine, whilst an
estoppel is only a piece of evidence."

19. The Apex Court had occasion to
consider plea of res-judicata in context of
compromise decree in the case of
Pulavarthi Venkata Subba Rao and
others vs. Valluri Jagannadha Rai
reported in AIR 1967 SC 591. In the said
case it was contended before the Apex
Court that compromise decree is a decree
which finally determine the right of the
parties, hence principles of res-judicata
can be applicable when a subsequent suit
is filed between the parties raising same
issue. Repelling the contention, following
was laid down in paragraph 10:-

"10. The appellants then seek to
reach the same result by invoking the
principle of res judicata. It is contended
that the earlier decision amounts to res
judicata and the respondents- were not
entitled to raise the same issue which by
implication must be held to be decided
against
them
by
the
compromise
judgment and decree. In the alternative, it
is contended that the earlier compromise
decree creates an estoppel against the
respondents because the appellants at that
time had shown some concession in the
amount which they were claiming and a
decree for a lessor amount was passed.
This estoppel was said to be an estoppel
by judgment. In our opinion, these
contentions cannot be accepted. The Act
as amended confers this right upon petty
agriculturists to save them from the
operation of loans taken at usurious rates
of interest. No doubt the conduct of
respondents in omitting to press the claim
for reduction of the amount of the claim
on the first occasion is significant, but this
did not Constitute res judicata, either
statutory or constructive. The compromise
decree was not a decision by the Court. It
was the acceptance by the Court of
something to which the parties had
agreed. It has been said that a compromise
decree merely sets the seal of the court on
the agreement of the parties. The court did
not decide anything. Nor can it be said
that a decision of the court was implicit in
it. Only a decision by the court could be
res judicata, whether statutory under s.11
of the Code of Civil Procedure, or
constructive as a matter of public policy
on which the entire doctrine rests. The
respondents claim to raise the issue over
again because of the new rights conferred
by the Amending Act, which rights
include, according to them, the re-opening
of all decrees which had not become final
or which had not been fully executed. The
respondents are entitled to take advantage
of the amendment of the law unless the
law itself barred them, or the earlier
decision stood in their way. The earlier
decision cannot strictly be regarded as a
matter which was "heard and finally
decided". The decree might have created
an estoppel by conduct between the
parties; but here the appellants are in an
unfortunate position, because they did not
plead this estoppel at any time. They only
claimed that the principle of res judicata
governed the case or that there was an
estoppel by judgment. By that expression,
the principle- of res judicata is described
'in English law. There is some evidence to
show that the respondents had paid two
sums under the consent decree, but that
evidence cannot be looked into in the
absence of a plea of estoppel by conduct
1 All Smt. Pushpa and another Vs. Smt. Anshu Chaudhary
459
which needed to be raised and tried. The
appellants are, however, protected in
respect of these payments by the proviso
to cl. (iii) of s. 16 of the Amending Act."

20. Again in the case of Baldevdas
Shivlal and another vs. Filmsitan
Distributors (India) Pvt. Ltd. And
others reported in AIR 1970 SC 406,
same issue came before the Apex Court.
In
the
said
case
submission
was
considered that previous judgment being a
judgment of consent, the same shall
operate as res-judicata. Repelling the
submission, following was laid down in
paragraph 8 of the said judgment:-

"8. The Trial Judge in overruling the
objection did not decide any issues at the
stage of recording evidence : he was not
called upon to decide any issues at that
stage. The observations made by him
obviously
relate
to
the
arguments
advanced at the Bar and can in no sense
be regarded even indirectly as a decision
on any of the issues. But the High Court
has recorded a finding that the agreement
dated November 27, 1954, created a lease
and that the consent decree operated as
res judicata. A consent decree, accord- ing
to the decisions of this Court, does not
operate as res judicata, because a consent
decree is merely the record of a contract
between the parties to a suit, to which is
superadded the seal of the Court. A matter
in contest in a suit may operate as res
judicata only if there is an adjudication by
the Court : the terms of s. II of the Code
leave no scope for a contrary view. Again
it was for the Trial Court in the first
instance to decide that question and thereafter the High Court could, if the matter
were brought before it by way of appeal
or in exercise of its revisional jurisdiction,
have decided that question. In our
judgment, the High Court had no
jurisdiction to record any finding on the
issue of res judicata in a revision
application filed against an order refusing
to uphold an objection to certain question
asked to a witness under examination."

21. The Madhya Pradesh High Court
in the case of Smt. Rehana Parveen vs.
Naimuddin
reported
in
AIR
2000
Madhya Pradesh 1, had occasion to
consider the similar issue raised on an
application filed under the provisions of
the Guardian and Wards Act, 1890 where
an earlier order was passed on the basis of
compromise. In the said case the issue
was custody of the minor daughter. The
application was filed by mother for
custody
of
minor
daughter
which
application was opposed on the ground
that by another order in Case No.36 of 96,
the matter of custody of minor daughter
was already decided, hence the said order
shall operate as res-judicata and the
matter cannot be agitated. The trial Court
rejected the application of mother against
which matter was taken in revision in the
High Court. It was contended that there
was substantial change of circumstances,
hence the application filed by mother
could not have been rejected on the
ground of res-judicata. The High Court
accepted the plea of mother that earlier
order shall not operate as res-judicata.
Following was laid down in paragraphs 3,
4, 5 and 6 of the said judgment by the
Madhya Pradesh High Court:-

3. The learned counsel for the
petitioner has urged firstly that the earlier
order dated 31-3-97 in Guardian and
Wards Case No. 36/96 was passed on the
basis of compromise arid was not on
merits, and would not therefore constitute
res-judicata, as has been laid down in
460 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
Pulavarthi Venkata Subba Rao v. Valluri
Jagannadha too, AIR 1967 SC 591. It is
pointed out that the petitioner is the
second wife of the respondent. It has been
submitted in the above context that the
respondent-husband after the above order
passed as a result of consent and
compromise between the parties, married
a third, wife who died an unnatural death.
A child was also born from the third
marriage. Therefore, the respondent has
married for the fourth time. It has
therefore been urged that there is
considerable change in the circumstances
since the order granting custody of minor
was passed. It was further submitted that
the view of changed circumstances, as
above, it would not be in the interest and
welfare of minor that she should remain
in the custody of the respondent-husband.
It has therefore been urged that the matter
deserves reconsideration. Reliance has
been placed on Surajmal v. Radheshyam,
AIR 1988 SC 1345.

4. As against this, the learned
counsel for the respondent has submitted
that the parties had with full knowledge of
the implications thereof in the previous
case No. 36/96, voluntarily entered into
an agreement which was duly considered
by the trial Court, where after the order
dt/- 31-3-97 was passed, keeping the
ultimate welfare of the child in mind. It
has therefore, been urged that the order
passed as above, does not call for
interference at the instance of petitionerwife.

5. It is noticed that the order of the
previous case No. 36/96 between the
parties was passed on the basis of
agreement between the parties. Hence, as
laid down in Pulavarthi Venkata Subba
Rao (supra) the same was not a decision
on merits by the Court; hence would not
operate as res-judicata and thus would not
operate as bar to the consideration of this
application for custody of the child, under
Guardian and Wards Act. Reference in
the above connection may also be made to
Baldevdas
Shivlal
v.
Filmistan
Distributors (India) Pvt. Ltd., AIR 1970
SC 406. Moreover, there is substantial
change in the circumstances of the parties
as has been averred in the application,
which requires the same to be considered
on merits.

6. It may further be pointed out that
while hearing and deciding the matter of
custody of child paramount consideration
before the Court always is the ultimate
welfare
of
the
minor.
No
other
consideration possibly could prevail with
the Court, and nothing could prohibit a
Court from consideration of the matter if
need be, even if it is for the second or
third time. The technical principle of resjudicata would not be operative more so,
if substantial change in circumstances is
averred and found prima facie justified. If
such
is
the
case,
the
subsequent
application for custody of the minor
cannot be thrown out at the threshold
holding it to be not maintainable. The
circumstances in the instant case as
averred by the petitioner in her petition
and as contended by her learned counsel
prima-facie justify reconsideration of her
petition on merits."

22. There is one more reason on
account of which we are of the view that
Application No.19 of 2012 filed by the
respondent cannot be held to be barred by
Section 11 of C.P.C. or principle of estoppel.
There are series of judgments taking the view
that the order of custody of a child under the
provisions of the 1890 Act are temporary in
nature and are in the nature of interlocutory
order which cannot be held to be final
1 All Smt. Pushpa and another Vs. Smt. Anshu Chaudhary
461
adjudication. The appointment of guardian to
one person and custody of child given at one
set of circumstances may no longer be
beneficial to the welfare of the child and the
custody and guardianship can be changed
from time to time looking to the relevant
facts and circumstances. The Apex Court in
Rosy Jacob's case (supra) held that all orders
relating to the custody are temporary in
nature. Following was laid down in
paragraph 18 of the judgment:-

"18. The appellant's argument based
on estoppel and on the orders made by the
court under the Indian Divorce Act with
respect to the custody of the children did
not appeal to us. All orders relating to the
custody of the minor wards from their
very nature must be considered to be
temporary orders made in the existing
circumstances.
With
the
changed
conditions and Circumstances, including
the passage of time, the Court is entitled
to vary such orders if such variation is
considered to be in the interest of the
welfare of the wards. It is unnecessary to
refer to some of the decided cases relating
to estoppel based, on consent decrees.
cited at the bar. Orders relating to custody
of wards even when based on consent are
liable to be varied by the Court, if the
welfare of the wards demands variation."

23. In the case of Dhanwanti Joshi
vs. Madhav Unde reported in (1998)1
SCC 112, again same proposition was laid
down. In the said case the Apex Court
held that there must be proof of
substantial change in the circumstances
presenting a new case. Following was laid
down in paragraph 21:-

"21. It is no doubt true that orders
relating to custody of children are by their
very nature not final, but are interlocutory
in nature and subject to modification at an
future time upon proof of change of
circumstances
requiring
change
of
custody but such change in custody must
be proved to be in the paramount interests
of the child [Rosy Jacob vs. Jacob a.
Chakramakkal (1973 (1) SCC 840)].
However, we may state that in respect of
orders as to custody already passed in
favour of the appellant the doctrine of res
judicata applies and the family Court in
the
present
proceedings
cannot
reexamine the facts which were formerly
adjudicated between the parties on the
issue of custody or are deemed to have
been adjudicated. There must be proof of
substantial change in the circumstances
presenting anew case before the court. It
must be established that the previous
arrangement was not conductive to the
child's welfare or that it has produced
unsatisfactory
results.
Ormerod
L.J.
pointed out in S vs. W [(1981) 11
Fam.Law 21 (82) {CA)] that

"the status quo argument depends for
its strength wholly and entirely on
whether the status quo is satisfactory or
not, the more satisfactory the status quo,
the stronger the argument for not
interfering. The less satisfactory the status
quo, the less one requires before deciding
to change".

24. In the case of R.V. Srinath
Prasad vs. Nandamuri Jayakrishna and
others reported in (2001)4 SCC 71, it was
again held by the Apex Court that custody
orders by their nature can never be final,
however, before a change is made it must
be proved to be in the paramount interest
of the children. Following was observed
in paragraph 11 of the judgment:-
462 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

"11. The High Court appears to have
overlooked the settled principle that
custody orders by their nature can never
be final; however , before a change is
made it must be proved to be in the
paramount interest of the children. In a
sensitive matter like this no single factor
can be taken to be decisive. Neither
affluence
nor
capacity
to
provide
confortable living should cloud the
consideration by the Court. Here we may
refer to the decision of this Court in Jai
Prakash Khadria vs.