Delhi High Court
Kirtika Mukesh Bura vs Jagjit Singh on 23 March, 2015
Author: Kailash Gambhir
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of hearing and order: 23rd March 2015.
+ MAT.APP.(F.C.) 98/2014
KIRTIKA MUKESH BURA ..... Appellant
Through: Appellant in person.
versus
JAGJIT SINGH ..... Respondent
Through: Mr. Sunil Kumar Mittal, Mr. Aman
Usman, Advocates
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
HON'BLE MR. JUSTICE I.S.MEHTA
ORDER
%
KAILASH GAMBHIR, J. (ORAL)
The appellant has filed an appeal under Section 19 of the Family
Courts Act, 1984 to challenge the order dated 21st May 2014 passed by
the Principal Judge, Family Court, South East, Saket, New Delhi,
whereby the learned Family Court has dismissed the application of the
appellant filed under Order 7 Rule 11 of the CPC.
Assailing the legality and correctness of the impugned order dated
21st May 2014, the appellant who argued the case herself, submits that the
learned Principal Judge has not appreciated the true scope and meaning of
Rule 1 of Order XXIII of the CPC which is in clear contravention with
the principles attracting Section 11 of the CPC. Differentiating the two
provisions, the appellant submits that in the case of abandonment or
withdrawal of the suit in term of Order 23 Rule 1, there is no proper
adjudication of a suit or issue involved and without seeking leave of the
Court, the respondent is precluded from instituting any fresh suit in
respect of the same subject matter while under Section 11 of the CPC,
fresh suit will be hit by the principles of res judicata if the suit or an issue
has been heard and finally decided by the Court of competent jurisdiction,
in a former suit between the same parties. Appellant further submits that
the earlier petition preferred by the respondent was unconditionally
withdrawn by him and no leave was sought or taken by the respondent for
filing a fresh petition and therefore such an unconditional withdrawal by
the respondent precluded him from filing a fresh petition in respect of the
same subject matter of the suit i.e. custody of the minor child before the
Principal Judge, Family Court, South East, Saket, New Delhi. In support
of her arguments, the appellant placed reliance on the judgment of the
Apex Court in the case of Sarguja Transport Service vs. State Transport
Appellate tribunal, M.P., Gwalior, and others, (1987) 1 SCC 5.
Present appeal is strongly opposed by the counsel for the
respondent Mr. Sunil Mittal. The learned counsel for the respondent
submits that the respondent had filed a fresh petition before the learned
Family Court, Saket, New Delhi based on the fresh cause of action, which
arose due to shifting of child from Hissar to Delhi and also due to
increase in the age of the child from three years to more than five years.
Contention raised by the learned counsel for the respondent is that so far
as the second custody petition is concerned, the respondent was well
within its right to file the same based on the fresh cause of action even
though no leave was obtained by him at the time of withdrawal of his first
petition from the Court of District Judge, Family Court, Hissar.
We have heard the submissions made by the learned counsel for
the parties and given our conscious consideration to the arguments
advanced by them.
The marriage of the appellant with the respondent had taken place
on 20th April 2006 and out of this wedlock a daughter namely Khyati was
born on 5th March 2008. The respondent had earlier also filed a petition
seeking custody of the child and for appointing him as her guardian under
the provisions of Guardians and Wards Act, 1890 before the Court of
District Judge, Family Court, Hissar. The said petition was withdrawn by
him and the same was accordingly dismissed as withdrawn by the District
Judge, Family Court vide order dated 5th May 2012. Perusal of the order
dated 5th May 2012 passed by the District Judge, Family Court,
manifestly shows that it was an unconditional withdrawal on the part of
the respondent and no leave was sought or obtained by him to file a fresh
suit/petition in respect of the same subject matter of the suit. The
respondent had again preferred a petition under Section 7 of the
Guardianship and Wards Act read with Sections 6 and 13 of the Hindu
Minority and Guardianship Act for the custody of the minor child before
the Court of District Judge, Family Court, New Delhi in July 2013.
To challenge the maintainability of the aforesaid petition, appellant
filed an application under Order VII Rule 11 of the CPC and Order XXIII
Rule 1(4) of the CPC, before the learned Family Court seeking rejection
of the said petition. This application of the appellant was dismissed by the
learned Family Court, New Delhi vide its order dated 21.05.2014, which
is under challenge in the present appeal.
It is correct that principle embodied under Order XXIII rule 1(3) is
founded on public policy to prevent the multiplicity of proceedings and it
is not the same as a rule of res judicata. If the liberty to file a fresh suit is
not sought at the time of withdrawal of the suit, the petitioner is precluded
from filing a fresh suit on same cause of action under Rule 1(4) of Order
XXIII. However, this bar does not apply where the cause of action is
recurring one or a fresh suit is filed based on a fresh cause of action. It is
a settled legal position that the order of custody of a minor child from its
very nature are considered to be temporary orders made in existing
circumstances. From time to time as the circumstances change, the court
may amend or modify these orders either suo moto or on application since
under section 13 of Hindu Minority and Guardianship Act in the
appointment of declaration of any person as guardian of a Hindu minor
by a court, the welfare of the minor shall be the paramount consideration.
In the matter of Rosy Jacob vs Jacob A. Chakramakkal reported in 1973
AIR 2090, it has been held by the Hon'ble Supreme Court as follows:
"All orders relating to the custody of the minor wards from
their very nature must be considered to be temporary orders
made in the existing circumstances. With the changed
conditions and Circumstances, including the passage of time,
the Court is entitled to vary such orders if such variation is
considered to be in the interest of the welfare of the wards. It is
unnecessary to refer to some of the decided cases relating to
estoppel based, on consent decrees. cited at the bar. Orders
relating to custody of wards even when based on consent are
liable to be varied by the Court, if the welfare of the wards
demands variation."
In the present case, the respondent - father had filed a fresh
petition introducing a fresh cause of action due to change in
circumstances, which includes shifting the place of child from Hissar to
Delhi and also increase in the age of the child from three years to more
than five years.
With the introduction of these new facts, in the second petition,
preferred by the respondent, the respondent has every right to maintain
the second petition and such a petition in our view can neither be rejected
under Order VII Rule 11 of the CPC on the ground of non disclosure of
cause of action nor under Order XXIII Rule 1(4) of the CPC on the
ground of not seeking leave to file a fresh suit on same cause of action.
The contentions raised by the appellant are not sustainable in the eyes of
law.
In view of the aforesaid discussion, finding no merit in the present
appeal, the impugned order dated 21.05.2014 passed by learned Family
Court, South East, Saket, New Delhi is upheld and the appeal filed by the
appellant is hereby dismissed with no order as to costs.
KAILASH GAMBHIR, J
I.S. MEHTA, J
MARCH 23, 2015
pkb
