5] We have considered the submissions canvassed by the learned counsel for respective parties, so also, have gone through the record and proceedings. On perusal of the R. & P. it transpires that the pleadings in H.M.P. No. 123/86 and 429 of 2003 were not placed on record. In absence of the pleadings, the learned Judge has ventured to give a finding on resjudicata. Same finding could not have been arrived at in absence of the pleadings of the earlier proceedings. The issue of resjudicata involves mixed question of law and fact. Moreover, one of the grounds agitated for cruelty is regarding filing of false complaint under Section 494 of IPC, in which the appellant is acquitted in the year 2008. Certainly, said cause of action was not available to the appellant when the earlier proceedings for divorce were filed. Whether, the appellant would succeed on the said ground is altogether different aspect, which the learned Judge is required to consider on the basis of the evidence adduced before it. However, non-suiting the appellant on the ground of resjudicata was certainly improper as the present petition was also filed on the ground which has arisen according to the appellant subsequently, so also, no pleadings of the earlier proceedings were placed before the Court.
