Mr. Vijay Shah vs Mrs. Padmini Shah
2008 Latest Caselaw 1351 Del

*      HIGH COURT OF DELHI : NEW DELHI

                 MAT APP.No.3 of 2008

%               Judgment reserved on:4th August, 2008

                Judgment delivered on:14th August, 2008

Mr. Vijay Shah,
Son of Shri Vikram Shah,
R/o. F-79/5A, Sainik Farms
New Delhi.                                ..... Appellant
                Through: Ms.Malavika Rajkotia with
                           Ms.Jyoti Sharma, Adv.

                     Versus

Mrs. Padmini Shah
W/o Sh.Vijay Shah,
R/o 66, Allerton Road,
Parsippany,
New Jersey-07054
U.S.A.

Also at:

Ms.Kiran/Hardeep Advani
Power of Attorney holder for
Ms. Padmini Shah
R/o B-26, First Floor,
Chanakya Puri,
New Delhi-110021.                         ....Respondent

                Through: Mr. Aman Hingorani, Adv.

Coram:
HON'BLE MR. JUSTICE V.B. GUPTA

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                      Yes

2. To be referred to Reporter or not?                   Yes

MAT No.3/2008                                  Page 1 of 13
 3. Whether the judgment should be reported
   in the Digest?                                            Yes


V.B.Gupta, J.

The present appeal under section 28 of the Hindu

Marriage Act, 1955 (for short as the "Act") has been

filed by the Appellant/Husband against the

judgment/order dated 03.12.07 passed by Gurdeep

Saini, ADJ, Delhi praying for setting aside the

impugned order.

2. The question that arises in the present appeal for

consideration is as to whether a subsequent divorce

petition, when earlier petition for divorce has been

dismissed in default, is barred under Order IX Rule 9

of the Code of Civil Procedure, 1908 (for short as the

"Code")?

3. Appellant had filed a divorce petition at Family

Court, in Jaipur on 25.07.94 on the grounds of cruelty.

The said petition was dismissed in default in the

presence of Respondent on 21.07.95.

4. It is alleged by the Appellant that no application

was made for restoration as the Respondent had

promised for reconciliation. She, however,

subsequently refused to do so. Thereupon the

Appellant filed a fresh petition for divorce in Delhi on

22.01.96 on the additional ground of desertion besides

cruelty.

5. The matter was fixed for evidence and during the

cross examination, an application was moved for

framing of the additional issues regarding bar of

petition under Order IX Rule 9 of the Code and

thereafter vide order dated 06.03.07, the additional

issue was framed by the Trial Court which reads as

under;

"(iii)a, Whether the present petition is barred under Order IX Rule 9 of the Code on account of dismissal of previous petition at the Family Court at Jaipur?" OPR

6. The Respondent preferred revision and this Court

vide order dated 11.10.07 directed that this issue be

decided as preliminary issue.

7. The Trial Court vide impugned judgment

dismissed the divorce petition by holding that the

petition is barred under Order IX Rule 9 of the Code.

8. It has been contended by the Ld. Counsel for the

Appellant that the Trial Court after holding that para18

and 19 of the petition have raised additional grounds

that requires trial to prove the same has yet failed to

apply its mind and illegally dismissed the petition

whereas, the Appellant had raised additional cause of

action of desertion which alone would have entitled

him the relief of divorce. Although certain facts

pleaded in both the petitions are same, yet the

additional cause of action with respect to desertion

was not available to the Appellant when the earlier

petition for divorce was filed and could not have been

filed earlier and this cause of action had materially

altered this petition from the earlier petition.

9. It is also contended that the Trial Court has failed

to appreciate that the previous petition filed in the

Family Court of Jaipur was dismissed in default and the

same could not be restored as the Respondent

prolonged the compromise talks and the Appellant's

right to restore his petition lapsed and now after 11

years of the present litigation and after 14 years of

previous litigation, the present petition has been

dismissed on a technical issue.

10. It is further argued that the Respondent kept the

Appellant engaged in negotiation talks for settling the

issue of divorce for a sufficient long time until his right

to move appropriate application for restoration lapsed

and this cause of action amounted to an act of cruelty.

11. The Trial Court was wrong in holding that

"compromise talks" is not an independent cause of

action and has not destroyed the earlier causes of

action whereas, holding of such talks between the

parties in general only shows that the parties are

willing to resolve their disputes inter-se rather than by

mechanism of courts for which previous pleadings are

not relevant and is an independent cause of action.

12. On the other hand, it is contended by the Ld.

Counsel for the Respondent that the present petition

filed before this Court on 22.2.96 shows in its title as

petition u/s 13(1)(i-a) and (i-b) of the Act and paras

number 1 to 15 are that same, as that filed in the

petition before the Family Court at Jaipur. Para No.16

and 17 are the facts regarding the filing of the divorce

petition and its dismissal. Para No.18 and 19 are the

only additional paras and lastly, the prayer clause

shows that the present petition is for decree of divorce

and continuous desertion and these are the only

additional facts pleaded in the petition.

13. Ld. Counsel for the Respondent has relied upon

Suraj Ratan Thirani & Ors. v. The Azambad Tea

Co. & Ors.,(1964) 6 SCR 192; Manjit Kaur v.

Gurdial singh, AIR 1978 P&H 150; C.Sarla v. K.

Nalinakshan, AIR 1991 Ker. 362; Gurcharan

Singh v. Mukhtiar Kayr, I (2002) DMC 747; Shree

Bhagwan & Ors. v. Suraj Bhan & Ors., 2006 VIII

AD (DELHI) 380 in support of its contentions.

14. Order IX Rule 8 & 9 of the Code reads as under;

"8. Procedure where defendant only appears.---

Where the defendant appears and the plaintiff does not appear when the suit is called on hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit as far as it relates to the remainder.

9. Decree against plaintiff by default bars fresh suit. ---

(1) Where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an

order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non- appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.

(2) No order shall be made under this rule unless notice of the application has been served on the opposite party."

15. Section 21 of the Act is also relevant for the

purpose of deciding the issue. The said section reads

as under;

"21. Application of Act 5 of 1908.-- Subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908."

16. In C. Sarla (supra) and Gurcharan Singh

(supra) cited by the Respondent, it has been opined

that the provisions of Order IX Rule 9 of the Code are

applicable to the subsequent proceedings under the

Act.

17. A similar view has also been taken by this Court

in Smt. Malti v. Ramesh Kumar, 2006 VI AD

(DELHI) 1.

18. Thus, section 21 of the Act makes the procedure

prescribed under the Code, including its sections and

orders applicable to the proceedings under the Act,

unless there is provision in the said Act or under the

Rules framed to the contrary.

19. In Manjit Kaur (supra), cited by the

Respondent, the Punjab and Haryana High Court while

referring the decision of Privy Council in Mohammad

Khalil Khan v. Mahbub Ali Mian, AIR 1949 P. C.

78 has observed as under;

"The question of the meaning of the expression "same cause of action" in O. 2 R. 2 of the Code arose before the Privy Council. It was observed that the cause of action means every fact which will be necessary for the

plaintiff to prove if traversed in order to support his right to the judgment. Their Lordships held that if the evidence to support the two claims is the same then the cause of action is the same, but if the evidence to be led in the two cases is different, the causes of action are also different. On the facts of that case it was decided that where the facts which would entitle the plaintiffs in their new suit to recover property 'Y', to establish their title are substantially the same as those alleged in their former suit to recover property 'X', the causes of action in the two suits are identical."

20. As regards to the independent cause of action, the

Trial Court held as under;

"Now the question arises whether the facts pleaded by the petitioner are independent cause of action, independent from the previous petition or are in substance the same. The cause of action are facts which the petitioner must necessary prove in order to have judgment in his favour. If these two paras i.e. para 18 and 19 are divorced from the total petition it cannot be said that the facts pleaded can constitute independent cause of action. In sum and substance the cause of action are the same and facts pleaded in earlier petition are integral to the facts in present petition. Therefore it cannot be said that these

are independent cause of action. As regards the relief, it is settled principle of law that the cause of action are distinct from the relief claimed. The cause of action, therefore cannot take its sustenance from the relief rather it should be other way round. In order to support the ground of the relief, the facts mentioned as cause of action must be sufficient to support the same."

The Trial Court further held as under; "I am of the opinion that these two additional paragraphs containing the subsequent allegations did not destroy the earlier cause of action as the allegations regarding the compromise is based on the previous pleadings and unless the same is proved one cannot come to the allegations of compromise. The allegations contained in other para is also dependent on the previous pleadings alone."

The Trial Court further held as under; "I have also perused the affidavit of evidence filed by the petitioner, except para 24, the remaining facts are the same which are pleaded and even the documents in support are the same, except PW 1/N1 to N3 and PW 1/O. I am of the opinion that the facts are in sum and substance the same as in the previous petition and only these two new facts have been mentioned to create a further cause of action. These two additional para do not in any

manner destroy the earlier cause of action."

21. In the present case, para no. 1 to 15 are the same

as that filed in the previous petition before the Family

Court at Jaipur. Para no. 16 & 17 are the facts

regarding the filing of the divorce petition and its

dismissal. Para no. 18 and 19 are the only additional

paras than the previous petition and lastly, the prayer

clause shows that the present petition is for decree of

divorce and continuous desertion for more than 2

years. Thus these 2 paras along with the grounds of

desertion are only additional pleaded facts in the

petition.

22. There is also no dispute that the previous petition

was dismissed in default and no application has been

moved for restoration of the same petition. It is also

not disputed that some proceedings were pending even

at the time of filing of the present petition before the

Jaipur High Court arising out of the said petition.

23. In sum and substances, the cause of action of

both the petitions is same and the facts pleaded in the

earlier petition are integral to the facts mentioned in

the present petition. So, it cannot be said that these

are independent cause of action.

24. The additional paras containing the subsequent

allegations did not destroy the earlier cause of action

and these allegations are dependent on previous

pleading alone.

25. In view of the above discussion, I am fully in

agreement with the finding of Trial Court and no

infirmity can be found with the impugned judgment

and thus, there is no merit in this appeal and the same

is dismissed.

26. No order as to costs.

27. Trial Court record be sent back forthwith.

August 14, 2008                    V.B.GUPTA, J.
Bisht