Ravikant Hardenia vs Smt.Deepshikha
2022 Latest Caselaw 7735 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

RESERVED ON 02.03.2022
 
DELIVERED ON 22.7.2022
 
Court No. - 5
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 5912 of 2021
 

 
Petitioner :- Ravikant Hardenia
 
Respondent :- Smt.Deepshikha
 
Counsel for Petitioner :- In Person
 
Counsel for Respondent :- Sujan Singh
 

 
Hon'ble Salil Kumar Rai,J.

The respondent is the wife of the petitioner. The respondent filed Case No. 1312 of 2016 under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as, ''Act, 1955') against the petitioner in the Family Court, District Agra praying for a decree of divorce dissolving her marriage with the petitioner. The petition was filed on grounds of desertion and cruelty allegedly meted out to the wife / respondent. The petitioner contested the aforesaid proceedings and filed his written statement. Subsequently, the respondent filed an application under Order VI Rule 17 of the Code of Civil Procedure, 1908 (hereinafter referred to as, ''CPC') praying for permission to amend the petition instituting Case No. 1312 of 2016 alleging that the petitioner had entered into a second marriage with one Rashmi Singh and, therefore, the petition was to be amended incorporating a fresh ground of adultery in support of the relief claimed in Case No. 1312 of 2016. The application under Order VI Rule 17 of CPC filed by the respondent was numbered as Paper No. 24-Ga and was allowed by the Family Court vide its order dated 13.10.2020. The plaint instituting Case No. 1312 of 2016 was consequently amended incorporating the pleas stated in Paper No. 24-Ga. Subsequently, the respondent, on 9.2.2021, filed an application stating that certain facts regarding cruelty and adultery could not be clearly stated in the petition instituting Case No. 1312 of 2016 and, therefore, prayed that she may be permitted to withdraw the case with the liberty to file a fresh case for the same relief as prayed in Case No. 1312 of 2016. The said application was numbered as Paper No. 28-Ga and the Family Court, Agra vide its order dated 10.2.2021 permitted the respondent to withdraw Case No. 1312 of 2016. However, the order dated 10.2.2021 is silent regarding liberty to the respondent - wife to file a fresh suit as prayed by her in Paper No. 28-Ga. After the order dated 10.2.2021, the respondent instituted Case No. 526 of 2021, again under Section 13 of the Act, 1955 praying for a decree of divorce dissolving her marriage with the petitioner. In the aforesaid case, the respondent also impleaded the woman with whom the petitioner had allegedly entered into a second marriage and was living in adulterous relationship. In the aforesaid case, the respondent also prayed for a direction for return of certain goods given to the petitioner at the time of marriage and an application under Section 27 of the Act, 1955 was filed for the said purpose.

In Case No. 526 of 2021, the petitioner raised a preliminary objection that the case was not maintainable as the respondent had withdrawn her previous Case No. 1312 of 2016 and by order dated 10.2.2021, no liberty was granted to the respondent to file a fresh suit. On the aforesaid objection of the petitioner, a preliminary issue was framed by the Family Court, Agra as to ''whether Case No. 526 of 2021 was not maintainable in light of the fact that previous Case No. 1312 of 2016 instituted by the respondent under Section 13 of the Act, 1955 had been dismissed as withdrawn without the liberty to file a fresh case?' The Principal Judge, Family Court, District Agra vide his order dated 23.9.2021 decided the said issue against the petitioner and held that Case No. 1312 of 2016 had not been decided on merit, therefore, Case No. 526 of 2021 was not barred by the principals of res-judicata and was maintainable.

The present petition under Article 227 of the Constitution of India has been filed challenging the order dated 23.9.2021 passed by the Principal Judge, Family Court, Agra in Case No. 526 of 2021.

It was argued by the petitioner that after amendment of the petition instituting Case No. 1312 of 2016, the respondent had incorporated the plea of adultery and second marriage by the petitioner and, therefore, Case No. 1312 of 2016 related to the right of the respondent for a decree of divorce on grounds of cruelty and adultery. Case No. 1312 of 2016 was dismissed as withdrawn by the Family Court vide its order dated 10.2.2021. Case No. 526 of 2021 has also been filed for a decree of divorce on the grounds of cruelty allegedly meted out to the respondent and also on ground of the alleged second marriage of the petitioner and is living in adultery with the same woman as mentioned in Case No. 1312 of 2016. It was argued that Case No. 526 of 2021 is regarding the same subject-matter as Case No. 1312 of 2016 and, therefore, in view of the Order XXIII Rule 1 (4) (b), Case No. 526 of 2021 was not maintainable. It was argued that for the aforesaid reason, the order dated 23.9.2021 is contrary to law, the present petition is to be allowed and the order dated 23.9.2021 as well as entire proceedings in Case No. 526 of 2021 are liable to be quashed. In support of his contention, the counsel for the petitioner has relied on the judgments of the Supreme Court in Sarguja Transport Service vs. State Transport Appellate Tribunal, M.P., Gwalior & Ors. (1987) 1 SCC 5 and Anil Kumar Singh vs. Vijay Pal Singh & Ors. (2018) 12 SCC 584.

Rebutting the contention of the petitioner, the counsel for the respondent has supported the order dated 23.9.2021 passed by the Principal Judge, Family Court, District Agra and has argued that the present petition is liable to be dismissed.

I have considered the submission of the petitioner and the counsel for the respondent. In support of his contention, the petitioner has relied on the observations of the Supreme Court in Paragraph No. 7 of Sarguja Transport (supra). The observations of the Supreme Court in Paragraph No. 7 in Sarguja Transport (supra) are reproduced below : -

"7. The Code as it now stands thus makes a distinction between 'abandonment' of a suit and 'withdrawal' from a suit with permission to file a fresh suit. It provides that where the plaintiff abandons a suit or withdraws from a suit without the permission, referred to in sub-rule (3) of Rule 1 of Order XXIII of the Code, he shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. The principle underlying Rule 1 of Order XXIII of the Code is that when a plaintiff once institutes a suit in a court and thereby avails of a remedy given to him under law, he cannot be permitted to institute a fresh suit in respect of the same subject-matter again after abandoning the earlier suit or by withdrawing it without the permission of the court to file fresh suit. Invito beneficium non datur. The law confers upon a man no rights or benefits which he does not desire. Whoever waives, abandons or disclaims a right will loose it. In order to prevent a litigant from abusing the process of the court by instituting suits again and again on the same cause of action without any good reason the Code insists that he should obtain the permission of the court to file a fresh suit after establishing either of the two grounds mentioned in sub-rule (3) of Rule 1 of Order XXIII. The principle underlying the above rule is founded on public policy, but it is not the same as the rule of res judicata contained in Section 11 of the Code which provides that no court shall try any suit or issue in which the matter directly or substantially in issue has been directly or 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. The rule of res judicata applies to a case where the suit or an issue has already been heard and finally decided by a court. In the case of abandonment or withdrawal of a suit without the permission of the court to file a fresh suit, there is no prior adjudication of a suit or an issue is involved, yet the Code provides, as stated earlier, that a second suit will not lie in sub-rule (4) of Rule 1 of Order XXIII of the Code when the first suit is withdrawn without the permission referred to in sub-rule (3) in order to prevent the abuse of the process of the court."

For reason to be stated presently, the said observations do not help the case of the petitioner.

It is true that a suit withdrawn without the permission of the court to file a fresh suit bars institution of a fresh suit on the same subject-matter on which the previous suit was instituted. However, the aforesaid proposition does not reflect the complete law relating to Order XXIII Rule 1 (3) of CPC. Order XXIII Rule 1 of CPC is reproduced below : -

"1. Withdrawal of suit or abandonment of part of claim.-- (1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim: Provided that where the plaintiff is a minor or other person to whom the provisions contained in Rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court.

(2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other, person.

(3) Where the Court is satisfied,-- (a) that a suit must fail by reason of some formal defect, or

(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim.

(4) Where the plaintiff-- (a) abandons any suit or part of claim under sub-rule (1), or

(b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3),

he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.

(5) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiff."

Order XXIII Rule 1 (3) of CPC is different from Order XXIII Rule 1 (1) of CPC. Under Order XXIII Rule 1 (1) of CPC, the plaintiff abandons his suit or part of his claim in the suit. A reading of Order XXIII Rule 1 (3) and Order XXIII Rule 1 (4) of CPC also show that if the plaintiff withdraws a suit without the permission of the court to institute a fresh suit in respect of the same subject-matter, he is precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. However, if the plaintiff files an application under Order XXIII Rule 1 (3) praying that he may be permitted to withdraw the suit with the permission to institute a fresh suit in respect of the same subject-matter, the concerned court does not have the power to split up the prayer in the application and the court may either allow the application as a whole or dismiss it as a whole. The court has no jurisdiction to dismiss the suit as withdrawn while refusing to grant permission to the plaintiff to bring a fresh suit in respect of the same subject-matter and on the same cause of action. If liberty to bring fresh suit is not to be granted by the court, it has to dismiss the application requiring the plaintiff to prosecute the suit on merits as it stands. An application filed under Order XXIII Rule 1 (3) cannot be treated as an application filed under Order XXIII Rule 1 (1) CPC. An order passed by the court on an application under Order XXIII Rule 1 (3) of CPC permitting the plaintiff to withdraw the suit without granting permission to institute a fresh suit for the same subject-matter would be an order without jurisdiction. Thus, an application filed by the plaintiff under Order XXIII Rule 1 (3) for withdrawal of the suit with liberty to file a fresh suit if allowed by the court, even without expressly passing an order granting permission to file fresh suit, the order would be construed to be one granting withdrawal of the suit with liberty to institute a fresh suit. In this context, it would be relevant to refer to the observations of a Division Bench of this Court in Paragraphs 14 to 16 of its judgment reported in Bharat & Ors. vs. Ram Pratap & Ors. AIR (1985) Allahabad 61 : -

"14. In this view of the matter it appears to us to be well settled that where an application is moved by the plaintiff to withdraw the suit with liberty to bring a fresh suit under Order 23 Rule 1(2) of the Code, the Court may either allow the application as a whole or dismiss it as a whole. It has no jurisdiction to consign the suit as withdrawn while refusing to grant permission to the plaintiff to bring fresh suit in respect of the same subject matter and on the same cause of action. If liberty to bring fresh suit is not to be granted by the court, it has to dismiss the application requiring the plaintiff to prosecute the suit on merits as it stands. The court while refusing to grant permission to institute fresh suit cannot treat the application to be one under Order 23 Rule 1(1) of the Code (old) for withdrawal of the suit simpliciter. Thus, if the application moved by the plaintiff under Order 23 Rule 1(2) of the Code (old) for withdrawal of the suit with liberty to file a fresh suit is allowed by the court even without expressly passing an order granting permission to file fresh suit, the order would be construed to be one granting withdrawal of the suit with liberty to institute fresh suit. The order allowing the application moved under Order 23 Rule 1(2) of the Code (old) cannot be construed to be one passed under sub-clause (1) of Rule 1 of Order 23 because the prayer in the application could not be split up by the Court. The order passed by the court, unless otherwise expressly expressed, would be construed to be one which it could validly pass in exercise of jurisdiction so vested in it and with reference to the provision under which such an order could be passed. Thus, there is no escape from the conclusion that the order dated 28-9-1967 passed in earlier suit on the application of withdrawal of suit with liberty to file fresh suit cannot be construed to have been passed under sub-clause (1) of Rule 1 of Order 23 of the Code when the application was in fact not moved under said provision, but it was moved under sub-clause (2) of Rule 1 of Order 23 of the Code and, therefore, the same could not be treated by the Court under sub-clause (1) of Rule 1 of Order 23 of the Code by splitting up the prayer or rejecting the prayer seeking liberty to file fresh suit. The court in that event would have no option but to reject the application in toto.

15. An application under Order 23, Rule 1(2) of the Code for permission to withdraw the suit with liberty to institute a fresh suit on the same subject matter has got to be treated as an indivisible whole and the court cannot split up the prayer while refusing permission to institute a fresh suit and that it could not treat the application to be one under Order 23 Rule 1(1) of the Code (old) for withdrawal of the suit simpliciter and, as such, the order allowing the application without expressly granting or refusing permission to institute a fresh suit is to be taken to have been passed granting the composite prayer made in the application under Order 23 Rule 1(2) of the Code, under which an order either allowing the application in toto or rejecting it in toto, could alone be legally passed by the Court. Therefore, when an application moved under Order 23 Rule 1(2) is allowed there is no escape from the conclusion that the prayer made in the application has been allowed in toto although no specific order is passed granting permission to institute fresh suit in respect of same subject matter and on the same cause of action.

16. In Lallu's case (supra) AIR 1973 All 195, the learned single Judge has not considered the aforesaid aspect of the matter and we are unable to subscribe to the view taken in the said decision. Although we have no hesitation in accepting the view expressed by the learned single Judge in said decision to the effect that : "The court is empowered to grant liberty to institute a fresh suit only after finding that the suit must fail by reason of some formal defect or that there are other sufficient grounds for granting liberty," but we find it difficult to hold that the Court must pass specific order granting liberty to institute fresh suit and that if no specific order is passed granting liberty to institute fresh suit, it would not be permissible to infer from such an order by constructive interpretation that permission to institute fresh suit has been granted. In our opinion if the Court passed an order allowing the application containing the composite prayer to the effect that the plaintiff be permitted to withdraw the suit with liberty to file fresh suit, then no other inference can be drawn than the one that the composite prayer as it stands has been granted in toto because the court could not split up the prayers and accept only one of the prayers and reject the other. Since the Court would have no jurisdiction to pass an order by splitting up the prayers contained in an application moved under Order 23 Rule 1(2) of the Code, and, as such, no such inference can be drawn that the second prayer was refused, although not said so expressly in the order. Thus, in this view of the matter, we find it difficult to persuade ourselves to take the view expressed in Lallu's case (AIR 1973 All 195) (supra) to the effect that where the order permitting withdrawal of the suit was silent about granting permission to institute fresh suit, it must be taken that the court in earlier suit refused to grant permission to file fresh suit. With due respect to the learned Judge we are unable to subscribe to said view taken in Lallu's ease (supra)."

The application filed by the respondent on 9.2.2021 which was allowed by the Family Court vide its order dated 10.2.2021 passed in Case No. 1312 of 2016 was an application filed under Order XXIII Rule 1 (3) of CPC in as much as in the aforesaid application, the respondent had prayed that she be permitted to withdraw Case No. 1312 of 2016 with the liberty to institute a fresh case for the same subject-matter as because of certain formal defects in the pleadings, Case No. 1312 of 2016 could not be continued. In light of the legal propositions stated above, the Family Court had no jurisdiction to allow the said application without granting permission to institute a fresh suit and, therefore, the order dated 10.2.2021 passed by the Family Court in Case No. 1312 of 2016 has to be construed as granting permission to withdraw Case No. 1312 of 2016 with the liberty to institute a fresh suit on the same subject-matter.

For the aforesaid reason, Case No. 526 of 2021 is maintainable and the Family Court vide its impugned order dated 23.9.2021 has rightly decided the preliminary issue against the petitioner.

In view of the aforesaid, the order dated 23.9.2021 passed by the Family Court, District Agra in Case No. 526 of 2021 is affirmed though for reasons different from that stated by the Family Court in its impugned order.

For the aforesaid reasons, the writ petition lacks merit and is dismissed as such.

Order Date :- 22.7.2022

Satyam