They have file a suit, status/capacity of parties have changed, no res judicata applies. But you are not legal heir of first wife, if you were not adapted but class I heir of husband.
Still you and sister will inherit her properties.
Res Judicata
My father name was Halappa Ganiger. He was working as a Police Head Constable. Unexpectedly he was died in 1998. At the time of my father life time he was married two wife's. After his death both wife's are getting equal pension. First wife has no child. Second wife has 3 childrens. One boy and Two girls. Recently my father's first wife was died in road accident in 2016. After her death we claimed legal hireship between by sisters and me in court as a legal hires of my father's first wife. But unfortunately the lawyer did the mistake. She was not produced or asked from us to fight the case what kind of documents has to produce in court. And in petition she confused what exactly we wanted from court she did not write. Because of lack of evidences and lawyer mistake the case was dismissed.Case Type: O.S. - Original Suit Filing Number: 670/2016Filing Date: [deleted] Registration Number: 670/2016Registration Date: [deleted] CNR Number: KADW[deleted] For reference you can check through online Case judgment. After rectification of error to appeal the case in next court we started collect the evidence from Haveri District SP Office through RTI. Mean while my fathers brothers and sisters are come forward and put the case against us saying that they are the legal hires of my father. Here the issue is in fresh case they put in the same court which already came from the judgment. Now in their petition they telling res judicate will apply. Kindly give me a opinion in this case res judicata will apply or not. If it applies then what will happen. If applies how it will apply. Because in earlier case petioner and respondents are within my family members. But now they are the petitioners and we are respondents. My lawyer was suggesting us to appeal in a higher court just to show the in court as a evidence. Is it worth Kindly give me a answers pls
Asked 6 years ago in Civil Law
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9 Answers
To apply res judicata , the issue might have been substantially raised and heard and finally decided by the court.
It appears from the contents of your questions, no such things happened.
So res judicata clause would not be applicable here.
Your father brothers and sisters are not legal heirs
on father demise first wife and second wife children from your father would be class 1 legal heirs
you can file detailed reply in said suit filed by father brothers and sisters denying that they are class 1 legal heirs
file appeal against st dismissal of case
In my considered opinion the law of res judicata may not operate in this situation.
In the fresh suit your cause of action is different and the parties are not same as plaintiffs.
Moreover the previous case was dismissed for not attaching the required documents to establish your case, but now you have modified the cause of action and presented the suit in a proper manner, if there was any res judicata, then the court would not have accepted the case on file.
You may fight it out and prefer an appeal if the court is dismissing the same on the basis of the claim made by the opposite party.
The opposite party are not the legal heirs to their deceased brother especially when his own legal heirs i.e., his second wife and his children born to the second wife are alive.
In present facts in my opinion the principle of Res Judicata shall not apply. In the fresh suit the parties and cause of action both are different.
You can file counter claim and reply in there suit and can.claim to be legal heirs and can seek share in the property.
If the case is decided by sane court on same facts and same cause of action Resjudicata will apply
no res judicata applies here but second wife children's are legal heirs. Consult and engage a local prudent lawyer for better appreciation of facts, analyse, guidance and proceeding professsionally.
1. Doctrine of res Judicata will not apply on this case as the parties to the suit are different from previous suit.
2. No you should appear in civil court to claim your share from the property of father and get the suit dismissed.
Why was the case dismissed?file a restoration application in the same court. A judgement and order must have been given by the judge.
