Sonu Seth vs Suresh Seth
2010 Latest Caselaw 3065 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI


+               CM(M) No.1108 /2009 & CM No.14330/2009

                                            Reserved on: March 09, 2010
                                          Date of Decision : July 02, 2010

       SONU SETH                                          ..... Petitioner
                               Through:       Mr.Parinay D. Shah and
                                              Ms.Akanksha Munjhal,
                                              Advocates.
                      versus

       SURESH SETH                                       ..... Respondent
                               Through:       Mr.P. Norula, Advocate.

       %
       CORAM:
       HON'BLE MS. JUSTICE ARUNA SURESH

     (1)        Whether reporters of local paper may be
                allowed to see the judgment?
     (2)        To be referred to the reporter or not?              Yes
     (3)        Whether the judgment should be reported
                in the Digest ?                                     Yes

                           JUDGMENT

ARUNA SURESH, J.

1. In this petition, petitioner has challenged the order of

the learned Additional District Judge dated 13th July, 2009 rejecting

her application filed under Order 7 Rule 11 CPC seeking rejection of

the petition.

2. Mr.Parinay D.Shah, counsel for the petitioner has

argued that Trial Court went wrong in dismissing the application

observing that in para-12 of the petition, petitioner has pleaded

subsequent events which arose after dismissal of the first petition

filed under Section 13 (1) (i-a) of the Hindu Marriage Act

(hereinafter referred to as „the Act‟) and that the subsequent events

as detailed in para-12 were not covered under Section 11 of the Code

of Civil Procedure (hereinafter referred to as „CPC‟).

3. Mr.P.Norula, counsel appearing for the respondent has

submitted that his second petition seeking divorce is maintainable as

in para-12 he has narrated subsequent events which arose after

dismissal of the first petition. He has emphasized on sub-para (iv),

grounds „f‟ and „h‟ of para-12 of the petition that certain acts of

cruelty were committed by the respondent even after dismissal of the

first petition and therefore, this petition is maintainable. He has

referred to 'Malti Vs. Ramesh Kumar', I (2006) DMC 878.

4. Order 7 Rule 11 CPC empowers the Court to reject a

plaint on any of the grounds narrated therein. Some of the grounds

are that, where plaint does not disclose a cause of action or, where

the suit appears from the statement in the plaint to be barred by any

law. Though a plea of res judicata under Section 11 CPC has been

raised by the petitioner, however, principles of res judicata contained

therein are not applicable to the facts and circumstances of this case.

5. Respondent had filed a petition for decree for divorce

under Section 13(1)(i-a) of the Act. In the said petition, petitioner

had moved an application under Section 24 of the Act seeking

interim maintenance. Trial Court vide its order dated 24th August,

2002 awarded maintenance of Rs.20,000/- per month to the

petitioner and her two children along with litigation expenses of

Rs.20,000/-. Subsequently, this order was modified on 29th January,

2003 reducing the quantum of maintenance to Rs.13,000/- per month

and the arrears of maintenance payable were also reduced from 50%

to 25%. Despite this order, respondent failed to pay the

maintenance as awarded and also did not clear the arrears of

maintenance. Thereafter, he did not appear in the court to contest the

petition and it was dismissed in default on 7th July, 2003.

6. Subsequently, on 21st July 2003, respondent filed an

application under Order 9 Rule 9 CPC seeking restoration of the

petition. The said application was allowed by the Trial Court subject

to the condition that respondent would comply with the order of

payment of maintenance. Since respondent failed to comply with the

condition imposed upon him while allowing his application under

Order 9 Rule 9 CPC, Trial Court, vide its order dated 31st January

2004, dismissed the application observing:-

"Petitioner has failed to comply with the conditions subject to which petitioner‟s application u/o 9 r 9 CPC was allowed despite last opportunity being granted on the last date of hearing.

In view of the above, petitioner‟s application is dismissed."

7. This order was never challenged by the respondent and

it attained finality.

8. After about four years of dismissal of the first petition,

respondent filed another petition under Section 13(1)(i-a) of the Act

in December, 2007 averring same grounds of cruelty which were

alleged by him in his first petition filed on 27th May, 1998. In view

of dismissal of the first petition, petitioner filed an application under

Order 7 Rule 11 CPC seeking rejection/dismissal of the petition as

barred by res judicata.

9. As discussed above, principles of res judicata do not

strictly apply to the facts and circumstances of this case. Since

petition was not dismissed by the court on merits, therefore, rights of

the parties were not finally adjudicated upon to have any binding

force on the parties.

10. Order 9 Rule 9 CPC bars fresh suits where plaintiff‟s

earlier suit is dismissed in default under Order 9 Rule 8. The only

remedy available with such party is to file an application for setting

aside dismissal order on showing sufficient cause for his non-

appearance on the date when the suit was dismissed in default.

11. Respondent-husband did file an application under

Order 9 Rule 9 CPC, which was allowed. However, Trial Court had

to dismiss the application as respondent failed to fulfill the

conditions imposed upon him by the court for restoration of the suit.

Resultantly, the petition remained dismissed in default. Order of

dismissal of the first petition on the ground of default cannot come in

the way of the respondent in establishing and proving a ground for

divorce on the basis of cause of action that may/might have accrued

to him after filing of the first petition for divorce. Divorce

proceedings based upon the cause of action on which first

proceeding was filed is barred and not maintainable. However,

respondent is entitled to file and institute fresh proceedings for

divorce on the basis of continuation of cause of action, provided the

said cause of action had continued after the dismissal of the petition

in default. Reference is made to Malti's case (supra).

12. Counsel for the respondent has submitted that para-12

of the petition contains cause of action which continued after the

dismissal of the first petition and also a fresh cause of action which

entitled the respondent to file fresh petition under Section 13 ( 1)(i-a)

of the Act. His emphasis is only on para-12 sub-para (iv) grounds „f‟

and „h‟ of the petition. It is pertinent that in sub-para (iv) of para-12,

respondent has reproduced the averments made by him in the suit for

partition filed by the petitioner, which is pending adjudication in this

Court. Averments of the petitioner in the suit for partition, in no

manner, can be considered as subsequent cause of action or

continuation of cause of action for filing the present petition for

divorce. It is also noted that a half-hearted attempt has been made by

the respondent to make out a ground of cruelty, when he averred in

the petition that petitioner was influencing the mind of children, who

are now major, against the respondent. Son is already studying

abroad for which respondent is bearing the expenses, as claimed by

him. None of the averments contained in para-12 of the present

petition, in any manner, indicate any fresh cause of action or

continuing cause of action to entitle the petitioner to file this petition

seeking divorce on the grounds of cruelty.

13. While dismissing the application, Trial Court did not

take into consideration the averments made in para-12 of the petition

but, simply observed that para-12 of the petition dealt with

subsequent events and therefore, the petition could not be dismissed

under Order 7 Rule 11 CPC. Trial Court could have been more

elaborate in its order while deciding the application of the petitioner

under Order 7 Rule 11 CPC. Be that as it may, as discussed above,

para-12 of the present petition does not disclose any continuing

cause of action or any fresh cause of action which entitled him to file

this petition. It is noted that the parties did not start living together

after the dismissal of the first petition and therefore, there could not

have been any occasion for the respondent to commit acts of cruelty

within the provisions of Section 13(1)(i-a) of the Act. This petition,

therefore, is barred by law.

14. Consequently, the petition is allowed. Impugned order

of the Trial Court dated 13th July, 2009 is set aside. Main petition is

dismissed as not maintainable. Under the circumstances, there are

no orders as to costs.

CM No.14330/2009 (for stay)

15. With dismissal of the petition, this application has become

infructuous and is accordingly dismissed.

ARUNA SURESH (JUDGE)

JULY 02, 2010 sb