JUDGMENT T.N. Singh, J. 1. This appeal arises out of a matrimonial lis and is by the plaintiff-wife. She has challenged the order passed on 17-11-1988 decreeing her suit on the ground that Court below had no jurisdiction to proceed with the trial of the suit after she had filed an application in person in court on 23-9-1988 praying that she be allowed to withdraw the suit and the suit be dismissed on withdrawal. 2. From the order-sheet what I find is that on 23-9-1988 the Presiding Officer of the Court was on leave and as such date was given to the plaintiff for her appearance. As per order dated 5-10-1988, it is found, she again appeared in person with her counsel Shri A. K. Shrivastava, in Court. But, on that date even she was not heard; and her case was not taken up. On the next date, namely, 7-10-1988 her counsel, Shri Shrivastava, appeared. Date for arguments was fixed and the matter was directed to be listed on 12 -10 -1988. It appears from the order sheet that on subsequent dates, namely, 12-10-1988, 1-11-1988, 4-11-1988, 15-11-1988, 17-11-1988 and 18-11-1988 the plaintiff-applicant remained absent. So also her counsel. Evidently, she had become unrepresented after 12-10-1988. It further appears that reply to plaintiff-appellant's application was filed on 12-10-1988 and on that hearing was fixed on 1-11-1988. In his reply the husband (defendant-respondent) challenged validity of the application and made prayer that decree of nullity of the marriage be passed. 3. I have not an iota of doubt that it was incumbent on the trial Court to notice the wife (plaintiff-appellant) on the said reply dated 12-10-1988 for the short and simple reason that a substantial relief was claimed in that reply by the husband, beside challenging maintainability of wife's application for withdrawal of the suit. Nothing of that sort was done and without giving any reason an order was passed on 1-11-1988 summarily dismissing application of the wife aforesaid dated 23-9-1988. The only ground to be read in the order of that date is that on case being called out, applicant's Advocate was found absent. 4. Surprisingly, however, the trial Court, after recording the order aforesaid continued to proceed with the trial of the suit and fixed 4-11-1988 for judgment. However, judgment could not be delivered on that date or even on the subsequent date, namely, 15-11-1988. 4. Surprisingly, however, the trial Court, after recording the order aforesaid continued to proceed with the trial of the suit and fixed 4-11-1988 for judgment. However, judgment could not be delivered on that date or even on the subsequent date, namely, 15-11-1988. By the impugned order, on merits decision was rendered on the basis of pleadings, relying on and accepting, the plaint case that the plaintiff and the defendant being within prohibited degree of relationship the marriage between them was void. By doing so the trial Court virtually allowed the objection/reply dated 12-10-1988 of the defendant-respondent because there was no disposal on merit of plaintiff-appellant's application for withdrawal of the suit; that had been dismissed for non-prosecution, which could not be done. 5. I have no doubt that the impugned judgment and decree dated 17-11-1988 are illegal and without jurisdiction for reasons to follow. In my view the jurisdiction of the trial Court to deal with the case was arrested the moment the plaintiff-appellant filed application dated 23-9-1988. which had to be disposed of on merits in accordance with the provisions of Order 23, Rule 1, Civil Procedure Code. It was beyond the competence of the trial Court to refer to the plaint and to the admission made therein of the plaintiff, on which the plaintiff wanted the Court not to Act. If there was any material for the trial Court to proceed with further trial of the suit, that was the objection/reply filed on 12-10-1988 by the defendant-respondent. As written statement had already been filed. Order 8, Rule 9 and Order 6, Rule 7, Civil Procedure Code interdicted Court's jurisdiction to act on that without hearing the other side. For granting "leave" or allowing "amendment" contemplated there under, plaintiff-appellant had to be noticed. 5A. By his objection the defendant virtually sought to be transposed as plaintiff while praying that decree of nullity be passed and the application of the plaintiff be rejected. That was a new ground of claim and was based on the new fact alleged by him that the marriage gifts, had been duly returned treating the marriage as nullity. Nothing short of hearing of plaintiff on that objection/reply could vest the trial Court with jurisdiction to deal further with the matter as neither "leave" nor "amendment" could be granted as a matter of course. Nothing short of hearing of plaintiff on that objection/reply could vest the trial Court with jurisdiction to deal further with the matter as neither "leave" nor "amendment" could be granted as a matter of course. It was incumbent on the trial Court to issue notice to the plaintiff-appellant on defendant's reply /objection dated 12-10-1988 before assuming jurisdiction on that to proceed further with the trial and by transposing the defendant as plaintiff. If the plaintiff had to be treated as defendant the suit could not evidently be decreed ex parte against her on the basis of defendant's objection-reply. The fatal flaw invalidating the impugned judgment and decree is two-fold: no order was expressly passed giving reasons either for granting expressly leave contemplated under Order 8, Rule 9 or allowing the defendant to be transposed as plaintiff as contemplated under Order 1, Rule 10, Civil Procedure Code. 6. However, on the scope of Order 13, Rule 1, case-law is cited and that is noted. In Hulas Bai v. K. B. Bass & Co., AM 1968 SC 111, it has been held : "There is no provision in the Code of Civil Procedure which requires the court to refuse permission to withdraw the suit... and to compel the plaintiff to proceed with it." Different consideration may arise, it was observed, when set-off is claimed or a counter-claim is filed. Indeed, it appears clear that if permission is refused to file a fresh suit after withdrawal, the plaintiff would become liable to cost as per Sub-rule (4); beyond that there is no jurisdiction vested in the trial Court to act in such manner as to enter into the shoes of the plaintiff even through proxy and propel the proceedings to any stage in any manner in the right of the plaintiff. Reliance is placed by Shri Agarwal on Mahendra Manilal, AM 1965 SC 364, to submit that in a case under Hindu Marriage Act the Court can base its decision on admission of the parties. That holding, undoubtedly, has no relevance to the issue agitated before me in this appeal. Reliance is placed by Shri Agarwal on Mahendra Manilal, AM 1965 SC 364, to submit that in a case under Hindu Marriage Act the Court can base its decision on admission of the parties. That holding, undoubtedly, has no relevance to the issue agitated before me in this appeal. That was not a case like the present one in which an application was filed by any of the party for withdrawal of the suit and of any admission made in the pleadings or of interdicting in any manner jurisdiction of the trial Court to proceed with the trial of the suit Lila Gupta, AIR 1978 SC 1351 , is also cited by Shri Agarwal but that too is besides the point. The distinction between a void and voidable marriage is pointed out but that question can only be decided when stage reaches for judicial determination of the question. In the instant case that stage had not reached and could not be reached because of the application of the plaintiff-appellant dated 23-9-1988. 7. Another submission forcefully made by Shri Agarwal is that I should take notice of the subsequent event that the defendant-respondent, namely, the husband, has already contracted a marriage, before instant appeal was filed. For that counsel ralied on Babbu v. Prembai, 1981 (II) MPWN 91 . That was a case under Section 125, Criminal Procedure Code for maintenance and entitlement of the wife in that regard had to be determined. Accordingly, that decision too does not avail the defendant-respondent. What I would like to stress is that any judgment and decree which is passed without jurisdiction is to be treated nullity and Courts must discharge their constitutional duty and declare such decrees void. 8. For all the aforesaid reasons the impugned judgment and decree are set aside. However, the trial Court is directed to proceed from the stage from which it started acting without jurisdiction. It shall be duty of the trial Court to dispose of the application dated 23-9-1988 of the plaintiff-appellant and to hear her on the reply/objection of the defendantt-respondent dated 12-10-1988. After that is done, it shall proceed to deal and dispose of the case in accordance with the law. 9. In the result, to appeal succeeds and is allowed to the extent herein indicated. No costs. Counsel consent that they shall appear in the Court below on 5-12-1990 to take further orders thereat.