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2011 DIGILAW 2844 (MAD)

B. Revathy v. N. Baskaran

2011-06-17

R.SUBBIAH

body2011
JUDGMENT :- 1. The present Revision Petition has been filed by the wife to struck down the proceeding in H.M.O.P. No.118 of 2010 filed by the Respondent/husband as against the Revision Petitioner under Section 13(1)(ia) & (ib) of the Hindu Marriage Act, for dissolution of the Marriage that took place between them on 19.5.1991. 2. According to the Revision Petitioner, the Respondent/husband originally filed H.M.O.P. No.47 of 2005 on the file of Principal Sub-Court, Nagapattinam under Section 13(1)(ia) & (ib) of the Hindu Marriage Act, to pass a decree for divorce, dissolving the marriage between him and the Revision Petitioner that took place on 19.5.1991. Since the Revision Petitioner was residing at Trichy, she filed Tr.C.M.P.(MD) No.9067 of 2005 before the Madurai Bench of this Court to transfer the said Petition from the file of Principal Sub-Court, Nagapattinam to the file of the Principal Sub-Court, Trichy and the same was also ordered on 9.8.2006 and the Petition was renumbered as H.M.O.P. No.298 of 2006; but the said Petition was dismissed for default since the husband did not appear before the Court. Now, after the lapse of five years, again the Respondent/husband filed a Petition for the same relief in H.M.O.P. No.118 of 2010 before the Principal Sub-Court, Mayiladuthurai. 3. It is the contention of the Revision Petitioner that the present Petition is not maintainable since the cause of action in the present Petition and the earlier Petition, which was dismissed for default, and the relief claimed in both the Petitions are one and the same. The learned Counsel further submitted that since the Revision Petitioner had obtained an order from this Court transferring the earlier Petition from the file of Sub-Court, Nagapattinam to the file of Sub-Court, Trichy, wantonly the Petitioner left the matter to go for default and after a lapse of five years, he filed a fresh Petition before the Principal Sub-Court, Mayiladuthurai for the same relief, only to harass the Revision Petitioner. This amounts to abuse of process of law. Therefore, the proceedings in H.M.O.P. No.118 of 2010 are liable to be struck down. In support of his submissions, the learned Counsel has relied on the decision reported in Dindigul Pettai Sathangudi Shatriya Nadar Uravinmurai v. Selvaraj, 2009 (2) CTC 87. 4. This amounts to abuse of process of law. Therefore, the proceedings in H.M.O.P. No.118 of 2010 are liable to be struck down. In support of his submissions, the learned Counsel has relied on the decision reported in Dindigul Pettai Sathangudi Shatriya Nadar Uravinmurai v. Selvaraj, 2009 (2) CTC 87. 4. On the contrary, the learned Counsel for the Respondent/husband would submit that the earlier Petition in H.M.O.P. No.47 of 2005, which was re-numbered as H.M.O.P. No.298 of 2006, was not decided on merits and the same was dismissed for default. Hence, the Principle of res judicata will not apply and, as such, there is no bar in filing a fresh Petition. Moreover, the present Petition is filed not on the same cause of action and he relied on the decisions reported in 2000 (1) MLJ 86 and State of U.P. v. Jagdish Sharan Agarwal, 2009 (1) SCC 689 , in support of his contentions. 5. Keeping in mind the submissions made by the learned Counsel for both sides, I have carefully gone through the materials available on record. The submissions made on behalf of the Petitioner/wife are two folds: (i) since the cause of action has already been decided, the present Petition is not maintainable; (ii) only to circumvent the order of this Court passed in earlier H.M.O.P. No.47 of 2005, transferring the Petition from the file of Sub-Court, Nagapattinam to the file of Sub-Court, Trichy, the Petitioner purposely left the matter to go for dismissal and thereafter filed the present Petition which amounts to abuse of process of Court. 6. It is not in dispute that the earlier Petition for divorce was not decided on merit and it as dismissed for default. Therefore, I am of the view that the question of applying the Principle of res judicata does not arise. In this regard, a reference could be placed on the decision cited by the Respondent in State of U.P. v. Jagdish Sharan Agarwal, 2009 (1) SCC 689 , and the relevant paragraphs are extracted hereunder: “14. In the present case, the Suit filed by Nagar Palika was dismissed on technical ground and in any case the State was not a party. So far the Suit where the State was a party and amendments were made, the same was dismissed for non-prosecution. But the same was not dismissed under Order 9, Rule 8. In the present case, the Suit filed by Nagar Palika was dismissed on technical ground and in any case the State was not a party. So far the Suit where the State was a party and amendments were made, the same was dismissed for non-prosecution. But the same was not dismissed under Order 9, Rule 8. Order 9, Rule 8 & Order 9, Rule 9, C.P.C. read as follows: “8. Procedure where Defendant only appears.- Where the Defendant appears and the Plaintiff does not appear when the Suit is called on for 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 so 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 Suit. (2) No order shall be made under this Rule unless notice of the Application has been served on the opposite party.” Therefore, Order 9, Rule 9, cannot be said to be applicable. The dismissal of the Suit for non-prosecution was not a decision on merit. Consequently, the said order cannot operate as res judicata. 15. Above being the position the High Court’s order is clearly unsustainable and is set aside. The matter is remitted to the District Judge, Lalitput to decide the proceeding on merit. Appeals are allowed but without any order as to costs. 7. Consequently, the said order cannot operate as res judicata. 15. Above being the position the High Court’s order is clearly unsustainable and is set aside. The matter is remitted to the District Judge, Lalitput to decide the proceeding on merit. Appeals are allowed but without any order as to costs. 7. Learned Counsel for the Respondent further relied on the decision in Chandra v. Emman illanchizhian, 2000 (1) MLJ 86 , wherein this Court has held as follows: “The question of res judicata could be raised only where the former Suit directly and substantially in issue has been ‘heard and finally decided by the Court’. Nothing has been shown here by the Petitioners that in Suits here before, issues which are directly and substantially in issue with the present Suit have been finally heard and decided. So far as the Suit said to have been filed by the Respondent previously, it is alleged to have been dismissed for default and not finally heard and decided nor admittedly the Suit filed in O.S. No.1079 of 1992 by the Petitioners has been finally heard and decided. Hence, there is no question of the present Suit filed by the Respondents in O.S. No.46 of 1994 becoming barred by res judicata’”. The dictum laid down in the above decisions would give a fitting answer to the issue involved in the present Petition. Since the earlier Petition has not been decided on merits, there is no legal bar for the Respondent to file a fresh Petition under Section 13 (1)(ia) & (ib) of the Hindu Marriage Act. When that being so, I am of the view that considering the fact that the earlier Petition was not decided on merits, the other ground raised by the Revision Petitioner that the Respondent has abused the process of Court, cannot be appreciated in the factual background of the case. Under such circumstances, I am not inclined to interfere with the order passed by the Trial Court and the Revision Petition is liable to be dismissed. 8. For the reasons stated above, the Civil Revision Petition fails and the same is dismissed. No costs. Consequently, connected M.P. is closed.