JUDGMENT Mr. Jaspal Singh, J.: - This appeal has been filed by the appellant-husband challenging the judgment and decree dated October 21, 2013 passed by the learned District Judge, (Family Court), Bhiwani, vide which his petition under Section 13(1)(ia)(ib) of the Hindu Marriage Act 1956 (for short “the Act”) as amended upto date, for dissolution of marriage by way of a decree of divorce, has been dismissed. 2. Succinctly, the facts giving rise to the instant appeal are that the marriage of the parties was solemnized on January 22, 1999 and out of their wedlock, a daughter namely Kirti born on December 24, 1999. It has been alleged by the appellant-husband that the respondent alongwith newly born baby took her all valuable clothes and ornaments including cash amount of Rs. 10,000/- and left the matrimonial home accompanied by her brother namely Subhash on February 11, 2000 that too without any reasonable excuse. He went to her in-laws house in the month of March 2000 for bringing her back to the matrimonial home but the parents of the respondent-wife refused to send her with him as she has been serving in the company named Hicks Thermometer (India) Ltd. at Aligarh since 1997-98. In the month of June 2000, he alongwith some respectables of his brotherhood went to Aligarh to bring her back but again she was not sent with him. In the month of January 2001, he again visited his in-laws house but the respondent-wife refused to accompany him due to her service at Aligarh. It has further been alleged by him that on the very first night, she uttered that he is not a fit man of her taste and right from the very beginning, she created nuisance by taunting him. She refused to attend the house hold chores and used to quarrel on trivial matters with him and his family members. He incurred huge amount for her treatment but during her treatment, she left the matrimonial home. Her brother and father also extended threats to him to chop off his life if he re-visits their house. Being under the influence of her elder sister, who is residing at Delhi, the respondent-wife insisted him to live separate from his family or to shift at Aligarh. She also started raising demand of jewellry and to purchase a scooter if he intends to keep her with him. Being under the influence of her elder sister, who is residing at Delhi, the respondent-wife insisted him to live separate from his family or to shift at Aligarh. She also started raising demand of jewellry and to purchase a scooter if he intends to keep her with him. Since the appellant-husband was ready and willing to perform his part of matrimonial obligations, he preferred a petition under Section 9 of the Act. However, the matter was patched up and the respondent-wife made a statement on March 1, 2002 to the effect that she has no objection for restitution of conjugal rights. The appellant-husband also made a statement at that time that after getting job within 2-4 months, he would bring her back from Aligarh. The petition was got dismissed as withdrawn. After joining some private company in July 2002, he went to Aligarh to bring her back but she made an excuse of her illness. Even her parents also stated at the time that a false statement was given before the Court by the respondent-wife just to get the petition dismissed. It has further been averred in the petition that there being no other alternative remedy, he moved a petition seeking dissolution of marriage under the Act on May 14, 2013. During the pendency of aforesaid petition, the respondent-wife and her family members threatened him with dire consequences in case he does not withdraw the petition. The appellant-husband did not pursue the proceedings and the divorce petition was dismissed on August 24, 2008. Even thereafter, despite his best efforts and convening of various panchayats, the respondent-wife did not join his company. On March 15, 2010, the appellant-husband again convened a panchayat and at that time, the respondent-wife flatly refused to live with him. He was also abused and beaten at that time. Ultimately, he filed a petition for divorce on August 13, 2010 but during the pendency thereof, the respondent-wife and her parents assured that they are ready to send the respondent-wife with a condition to withdraw the petition and on their assurance he withdrew the petition on September 28, 2010. In the first week of October 2010, he went to Aligarh to bring her back but they told him to disappear from there. In the first week of October 2010, he went to Aligarh to bring her back but they told him to disappear from there. Since February 2010, he has been deprived of normal cohabitation and their relations have deteriorated to such an extent that it is not possible to live together. The respondent-wife has treated him with mental and physical cruelty. The respondent-wife has withdrawn from his company without any reasonable cause and excuse and he has not condoned the acts of the respondent, thereafter, he was left with no option except to prefer the petition for dissolution of his marriage. 3. In response to the notice of the petition issued by the learned lower Court, the respondent-wife appeared and resisted the petition. She filed written statement raising preliminary objection inter alia on the ground that no cause of action has arisen to file the divorce petition; that the petition is not maintainable in view of the withdrawal of the previous divorce petitions; that the appellant-husband is estopped from filing the present petition by his act and conduct and that he has not approached the Court with clean hands. On merits, it has been submitted by the respondent-wife that she never left the matrimonial home without the permission of her husband and his parents. In fact, the appellant-husband is a quarrelsome person who from the very beginning of the marriage started raising disputes on petty matters with her as well as her family members. He used to say that she is not of his choice. He also raised demand of dowry though she always remained ready to perform her part of matrimonial obligations but the appellant-husband neglected her. All other averments contained in the divorce petition have been denied by the respondent-wife alleging the same to be wrong. She accordingly, prayed for dismissal of the petition. 4. On going through the pleadings of the parties, following issues were culled out in order to adjudicate upon the matter in controversy: “1. Whether the petitioner is entitled to decree of divorce on the ground of cruelty & desertion as alleged? OPP 2. Whether the petition of the petitioner is not maintainable in the present form? OPR 3. Whether the petitioner has no cause of action to file the present petition? OPR 4. Whether the petitioner is estopped by his own act and conduct from filing the present petition? OPR 5. Relief.” 5. OPP 2. Whether the petition of the petitioner is not maintainable in the present form? OPR 3. Whether the petitioner has no cause of action to file the present petition? OPR 4. Whether the petitioner is estopped by his own act and conduct from filing the present petition? OPR 5. Relief.” 5. Both the parties were afforded ample opportunity by the learned lower Court to adduce and conclude their evidence in support of their respective pleadings and they led oral as well as documentary evidence. In order to substantiate his case, the appellant-husband himself stepped into the witness box as PW-1 and examined Hemant as PW-2 and closed the evidence. On the other hand, respondent herself stepped into the witness box as RW-1 and closed her evidence. 6. After hearing the learned counsel for the parties and appraisal of the evidence adduced by the parties in support of their respective pleadings, issues No.1 and 2 were decided against the appellant-husband whereas issues No.3 and 4 were decided against the respondent-wife being not pressed. Resultantly, the petition was dismissed as reflected in para-1 of this judgment. 7. Feeling disheartened, the appellant-husband preferred the instant appeal which came up for hearing before us today. 8. We have heard the learned counsel for the appellant at length and have perused the impugned judgment. 9. While assailing the impugned judgment and decree dated October 21, 2013, it has been submitted by the learned counsel for the appellant-husband that the same is totally against the settled principles of law and without application of mind. The divorce petition has been dismissed by the learned lower Court only on the ground of maintainability by observing that earlier petition filed by the appellant was dismissed on August 13, 2008 and the second divorce petition preferred by the appellant was dismissed as withdrawn on September 28, 2010 on the ground of non maintainability and the appellant is precluded from filing the present petition. In fact, the first divorce petition was dismissed for non prosecution on August 13, 2008 and the second petition preferred by the appellant was withdrawn by the appellant on account of compromise vide order dated September 28, 2010. As such, the controversy involved in the case was not decided on merits. The doctrine of resjudicata is not attracted in the facts referred to above. As such, the controversy involved in the case was not decided on merits. The doctrine of resjudicata is not attracted in the facts referred to above. The divorce petition is legally maintainable and the impugned judgment and decree is totally in violation of the settled law. The same is not sustainable in the eyes of law. Even otherwise, a glance at the order dated September 28, 2010 makes it clear that the petition seeking dissolution of marriage filed by the appellant-husband was withdrawn by him after the examination of two witnesses that too, ex parte. There was no other reason except that the parents of the respondent-wife assured him to send her with him in case he withdrew the divorce petition. Either of the petitions was not decided on merit and even the provisions contained in Order XXIII Rule 1(4) of CPC are not attracted. 10. It has further been stressed by the learned counsel for the appellant that the learned Family Court has also ignored and disbelieved the patent fact that the parties are living separately since 2000 and after a gap of 13 years, the marriage between them stood irretrievably broken down and it is not possible for the appellant-husband to live with the respondent-wife which would be nothing but the continuance of the cruelty. Moreover, the last petition was withdrawn by the appellant in the month of September 2010 and even thereafter there is a complete gap of two years prior to the filing of the present petition. During the period of two years, the appellant has suffered cruelty and respondent has also intentionally deserted him without any reasonable cause. 11. While concluding his arguments, it has been submitted by the learned counsel for the appellant that all the factors coupled with each other clearly make out a case of cruelty as well as desertion. The petition is legally maintainable. As such, the impugned judgment and decree are not sustainable in the eyes of law and are liable to be set aside by way of acceptance of the instant appeal. The divorce petition preferred by the appellant deserves to be accepted. 12. We have given our anxious thought to the aforesaid submissions made by the learned counsel for the appellant besides going through the impugned judgment. 13. The divorce petition preferred by the appellant deserves to be accepted. 12. We have given our anxious thought to the aforesaid submissions made by the learned counsel for the appellant besides going through the impugned judgment. 13. Undisputedly, the divorce petition has been dismissed by the learned lower Court while holding that the petition is barred under Order XXIII Rule 1 sub-rule (4) CPC in view of the dismissal of the earlier divorce petition preferred by the appellant on August 13, 2008 and withdrawal of the second divorce petition on September 28, 2010. So, the pivotal question which requires determination in this case is whether the divorce petition which has been disposed of vide impugned judgment dated October 21, 2013 was maintainable or not in view of the above referred provisions of the Code of Civil Procedure. It would be relevant to reproduce the Sub-rule(4) of Order XXIII Rule 1 which reads thus: “(4) Where the plaintiff- (a) abandons any suit or part of claim under sub-rule (1), or (b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim.” 14. A glance at the aforesaid provisions depicts that it precludes the plaintiff from instituting any fresh suit in respect of such subject matter or such part of the claim which the plaintiff has withdrawn. If the requisite permission has not been obtained to file a fresh suit on the same cause of action, the plaintiff is debarred from filing a fresh suit on the same cause of action when it relates to the same subject matter. The expression “subject matter” does not find any definition in the Civil Procedure Code. Hon’ble Apex Court while dealing with the similar situation in Vallabh Das v. Dr. Madanlal and others; 1970(1) SCC 761 had made following observations: “The expression “subject matter” is not defined in the Civil Procedure Code. It does not mean property. That expression has a reference to a right in the property which the plaintiff seeks to enforce. The expression includes the cause of action and the relief claimed. Madanlal and others; 1970(1) SCC 761 had made following observations: “The expression “subject matter” is not defined in the Civil Procedure Code. It does not mean property. That expression has a reference to a right in the property which the plaintiff seeks to enforce. The expression includes the cause of action and the relief claimed. Unless the cause of action and the relief claimed in the second suit are the same as in the first suit, it cannot be said that the subject-matter of the second suit is the same as that in the previous suit.” 15. Adverting to the facts of the case in hand, the appellant has narrated the instances from the date of marriage alleging that the same constitute cruelty till the second divorce petition was got dismissed as withdrawn by him on September 28, 2010. There is not a single instance unfolded by the appellant-husband after the withdrawal of the second petition that he was meted out with cruelty except that in the first week of October 2010, he went to Aligarh to bring the respondent-wife back but the respondent-wife and his parents asked him to disappear from there and further that since February 2010, he has been deprived of normal cohabitation. With the withdrawal of the second petition on September 28, 2010, all the previous acts stood condoned and there is no serious instance which can be brought within the definition of cruelty so as to attract Section 13(1) (ia) of the Act to dissolve their marriage. Moreover, the divorce petition is alleged to have been withdrawn by the appellant on September 28, 2010 as per the assurance given by the respondent-wife and her parents but to the utter surprise, nothing finds mention in the above referred order and he withdrew the petition at his own accord. Since the appellant was at liberty to get the petition restored with a view to pursue it after its dismissal in default vide order dated August 24, 2008 but no such effort was made by him rather he opted to file a fresh divorce petition which was subsequently withdrawn by him on September 28, 2010. Even at that time also, he did not seek the permission from the Court as required under Order XXIII Rule 1 of the Code of Civil Procedure. Even at that time also, he did not seek the permission from the Court as required under Order XXIII Rule 1 of the Code of Civil Procedure. So, in view of the above referred provisions of the Code of Civil Procedure, he is precluded from filing the fresh petition seeking dissolution of marriage on the basis of the previous events as has been discussed above. There is no serious or specific instance of cruelty after the withdrawal of the earlier divorce petition vide order dated September 28, 2010. So, we are of the considered view that the learned trial Court has rightly concluded that the petition for dissolution of marriage is not maintainable and dismissed the divorce petition. 16. No other point was urged by the learned counsel for the appellant with a view to assail the impugned judgment and decree. 17. Resulantly, the appeal is dismissed whereby the impugned judgment and decree dated October 21, 2013 passed by the learned District Judge, (Family Court), Bhiwani, is affirmed. No order as to costs. C.M. No.25158-CII of 2013 This application moved by the applicant-appellant under Section 5 of the Limitation Act for condonation of delay in filing the appeal against judgment and decree dated October 21, 2013 passed by the learned District Judge, (Family Court), Bhiwani, is left open. ------------------