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2014 DIGILAW 737 (KAR)

R. Harish v. M. V. Shalini

2014-08-18

A.N.VENUGOPALA GOWDA

body2014
Judgment : 1. This writ petition is directed against an order dated 08.04.2014, passed on I.A.No.5, filed in M.C.No.153/2013, by the learned Judge of the Family Court at Kolar. 2. Petitioner has filed M.C.No.153/2013 against the respondent, under Section 13 of the Hindu Marriage Act, 1955 (for short 'the Act'), in the Family Court at Kolar, to pass a decree and dissolve his marriage with the respondent, solemnized on 26.04.2012. Respondent has contested the case by filing statement of objections. I.A.No.5 was filed by the petitioner, under Order 23 Rule 1(3) of Code of Civil Procedure, for grant of permission to withdraw M.C.No.153/2013, with liberty to file a fresh petition on the same cause of action. The application having been opposed and finding the application to be devoid of merit was dismissed on 08.04.2014. 3. Sri M. Vishwajith Rai, learned advocate, contended that despite the petitioner having made out a case for grant of the prayer, the Court below without considering I.A.No.5 in the correct perspective has dismissed the same. He submitted that the impugned order being irrational and vitiated, interference is called for. 4. Perused the writ record. Relevant portion of the affidavit filed in support of the prayer in I.A.No.5, reads as follows: "I submit that though I have filed this petition for divorce, on the ground of cruelty, but each and every severity of cruelty by the respondent to me was not explained in the petition, and also the respondent while filing her objections to the main petition she has stated at Line 5 of para 4 she has stated that she is ready to live with the petitioner, such being the case the present petition will come in the way of any settlement or compromise, as such in such circumstances it is very much necessary to withdraw the petition at this stage, for the sake of both parties." 5. Order 23 Rule 1 of Code of Civil Procedure, makes provisions for withdrawal of suit or abandonment of part of claim. Relevant portions of the provision are extracted here under: "Order 23 WITHDRAWAL AND ADJUSTMENT OF SUITS 1. Order 23 Rule 1 of Code of Civil Procedure, makes provisions for withdrawal of suit or abandonment of part of claim. Relevant portions of the provision are extracted here under: "Order 23 WITHDRAWAL AND ADJUSTMENT OF SUITS 1. (1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim: Provided that where the plaintiff is a minor or other person to whom the provisions contained in Rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the court. (3) Where the court is satisfied, - (a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim. (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." 6. The question for consideration in this writ petition is, whether the learned Judge of the Family Court has failed to exercise the discretion vested under Order 23 Rule 1(3) of CPC, on consideration of matters relevant for exercise of such power? 7. In Bakhtawar Singh and Another vs. Sada Kaur and Another, (1996) 11 SCC 167 , the question of grant of permission under clause (3) of Order 23 Rule 1 of CPC was considered and it was held thus: "8. 7. In Bakhtawar Singh and Another vs. Sada Kaur and Another, (1996) 11 SCC 167 , the question of grant of permission under clause (3) of Order 23 Rule 1 of CPC was considered and it was held thus: "8. .......In the present case all the courts below including the High Court concurrently found that the plaintiffs-appellants failed to produce any evidence to show that the permission to withdraw the suit was given on the ground that the suit was bound to fail by reason of some formal defect or there were sufficient grounds for allowing the plaintiffs to institute a fresh suit in respect of the same subject-matter. The plaintiffs had not even produced the application which is said to have been filed for withdrawal of the earlier suit with permission to file a fresh suit on the same cause of action to show as to what was the formal defect in the earlier suit by reason of which it was sought to be withdrawn. In these facts and circumstances no case for fresh institution of suit on the same cause of action and for the same relief after the withdrawal of the earlier suit was made out by the plaintiffs-appellants in accordance with the provisions of clause (3) of Order 23 Rule 1 of the Code." 8. In Atul Krushna Roy Vs. Raukishore Mohanty and Others, AIR 1956 Orissa 77, it has been held that: "A formal defect is a defect of form which is prescribed by rules of procedure such as misjoinder of parties, of causes of action, non-payment of proper court fee, failure to disclose cause of action and so forth." 9. Order 23 Rule 1(3) C.P.C. contemplates withdrawal of the Suit with a liberty to bring a fresh suit. Under Order 23 Rule 1(3) C.P.C., Court could grant permission to allow the Plaintiff to withdraw the suit on such terms as it thinks fit with liberty to file a fresh suit on the same cause of action where the Court is satisfied: (a) that the suit must fail by reason of some formal defect; (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim. 10. 10. For withdrawal of the suit with liberty to bring a fresh petition, the party must ask for leave and make out a case falling within "Clause (a) or (b)" of Order 23 Rule 1 (3) C.P.C. The Court has no jurisdiction to allow such withdrawal with liberty to file fresh petition unless the condition in either of the clauses is satisfied. 11. For granting permission to withdraw the Divorce Petition with liberty to file fresh petition, the Court has to be satisfied about the existence of 'formal defect' and must state the reasons for holding that a case within Order 23 Rule 1 (3) Clause (a) or (b) has been made out. 12. On perusal of I.A.No.5, it appears that the petition was sought to be withdrawn, on account of the statement made in the counter filed to the main petition, that the respondent is ready to live with the petitioner and pendency of M.C.No.153/2013 will come in the way of settlement or compromise. 13. The petitioner, working as Sub-Inspector of Police, was present before this Court. When he was asked through Sri M. Vishwajith Rai, as to whether he is ready to take the respondent to the matrimonial home to live together, the petitioner categorically stated that he is not ready and willing to take the respondent/wife along with him. Thus, there is no truth in the case of the petitioner, as put forth in I.A.No.5. In the circumstances, the petition cannot be permitted to be withdrawn with liberty to file a fresh petition on the same cause of action. 14. In the affidavit filed along with I.A.No.5, the nature of defect has not been stated. It is essential for the petitioner to disclose the reason for withdrawal of the petition with liberty to file a fresh petition, on the same cause of action. Since the application does not disclose any defect, which is of formal in nature, enabling the petitioner to seek withdrawal of the petition, the Court below is justified in dismissing I.A.No.5, which in my opinion also, do not satisfy the requirements of Order 23 Rule 1(3)(a) & (b) of CPC. 15. Since the application does not disclose any defect, which is of formal in nature, enabling the petitioner to seek withdrawal of the petition, the Court below is justified in dismissing I.A.No.5, which in my opinion also, do not satisfy the requirements of Order 23 Rule 1(3)(a) & (b) of CPC. 15. On perusal of the affidavit filed in support of I.A.No.5, relevant portion of which, has been extracted in para 4 (supra) and also the order passed by the learned Judge of the Family Court, it is clear that I.A.No.5 has been considered in its proper perspective. There is application of mind to the relevant aspects of the matter and that there is consideration of the case of the petitioner in the correct perspective. I.A.No.5 does not make out that M.C.No.153/2013 would fail, on account of some formal defect or any sufficient ground for allowing the petitioner to institute a fresh petition for the subject matter of the case. In the result, writ petition being devoid of merit is rejected. However, M.C.No.153/2013 shall be decided in accordance with law, notwithstanding the dismissal of I.A.No.5. It is open to both parties to raise all contentions for consideration and decision by the Court.