Soumika Chakravorty vs Aniket Ganguly
2023 Latest Caselaw 4980 Cal

11.08.2023

Item No.04 CP C.O. 3399 of 2022 Soumika Chakravorty Vs.

Aniket Ganguly

Mr. Supratik Basu ...for the petitioner.

The revisional application has been filed by the

wife, challenging an order dated May 5, 2022, passed

by the learned Additional District Judge, 4th Court,

Barasat, in Matrimonial Suit No. 1912 of 2016. By

the order impugned, the learned court below rejected

an application under Order 23 Rule 1 of the Code of

Civil Procedure filed by the petitioner.

The wife had filed a suit for dissolution of

marriage on the ground of the marriage being a

nullity and the husband had filed a counter claim for

dissolution of marriage as per the provisions of the

Hindu Marriage Act. When the suit had progressed to

a considerable extent, the application for withdrawal

of the suit with liberty to file afresh was not allowed.

The learned court, upon considering the entire

application, did not find any cogent reason to arrive

at a conclusion that the suit would fail by reason of a

formal defect or there was sufficient ground to allow

the petitioner/wife to file a fresh suit on the self-

same cause of action. It has been recorded that there

is an application pending for passing of a judgment

on admission. It has also been recorded by the

learned court that the suit could be disposed of on

the basis of Order 8 Rule 6A of the Code.

Thus allowing the wife to withdraw the suit

with liberty to file afresh would prejudice the

husband. The learned court also found that just a

single sentence indicating that the learned advocate

had not drafted the petition properly, would not be

sufficient ground to allow the petitioner to withdraw

the suit and file a fresh suit, on the self-same cause

of action.

I do not find any illegality in the order

impugned as the application for withdrawal does not

disclose any reason at all.

The plaintiff can at all times abandon her claim

but the counter claim has to proceed. However, the

right to withdraw and opportunity to file afresh on

the self-same cause of action can only be given when

there is a formal defect in the suit, for which the suit

may fail or there are other sufficient grounds to allow

withdrawal with opportunity to file afresh. These two

ingredients not having been satisfied, the learned

court below rightly did not exercise discretion in the

matter.

The revisional application is dismissed.

It appears that trial has not commenced.

Hence, the factual inconsistencies or defects which

the petitioner is aggrieved of, can always be amended

as per the settled principles of law. However, this

order should not be construed as a direction upon

the learned court below to allow an amendment. If

any such application is filed later, the same shall be

disposed of independently and strictly in accordance

with law and upon allowing the husband to contest

the same.

There shall be no order as to costs.

Parties are to act on the server copy of this

order.

(Shampa Sarkar, J.)