JUDGMENT : P.Krishna Kumar, J. The second appellant is the legal heir of the first appellant/first petitioner in O.P. No.1599/2013 on the files of the Family Court, Attingal. The original petition was filed seeking recovery of gold and money from the respondents. The first petitioner in the original petition was the wife of the first respondent. For the sake of convenience, the parties will hereinafter be referred to as the petitioner and the respondents. The trial court dismissed the claim for recovery of gold and money on the finding that the petitioner had failed to establish her case. The present appeal has been preferred, challenging the said judgment. 2. The marriage between the petitioner and the first respondent was solemnised on 04.05.2003. The petitioner contended that, at the time of marriage, her parents had given her 100 sovereigns of gold ornaments, the details of which were furnished in the schedule attached to the petition. It was further contended that, on the same day, her parents visited the matrimonial home and entrusted a sum of ?3,00,000/- to the father of the first respondent. The first respondent directed her to entrust all her gold ornaments to his mother after the ceremony of ‘maruveedu’, and thereafter, she was not given back any of the said ornaments. She further alleged that the first respondent and his parents sold most of her ornaments for their personal needs and subsequently deposited an amount of ?1,25,000/- in her bank account, which amount was later caused to be withdrawn by the first respondent. 3. The respondents denied all the allegations raised by the petitioner. According to them, the petitioner had only 40 sovereigns of gold ornaments at the time of marriage, and her parents did not give any amount as alleged. The allegation regarding the misappropriation of gold ornaments was also specifically denied. They contended that, out of the said 40 sovereigns, 30 sovereigns were sold by the petitioner and the first respondent, and the sale proceeds were deposited in her bank account. It was further alleged that the said amount was secretly withdrawn by the petitioner and her father and utilised for their money-lending activities. They also asserted that, apart from the said 10 sovereigns, nearly 13.5 sovereigns of gold ornaments given by the first respondent are still in the possession of the petitioner. It was further alleged that the said amount was secretly withdrawn by the petitioner and her father and utilised for their money-lending activities. They also asserted that, apart from the said 10 sovereigns, nearly 13.5 sovereigns of gold ornaments given by the first respondent are still in the possession of the petitioner. The petitioner had earlier filed a similar petition before the Family Court, Nedumangad, as O.P. No.581/2006, but when the court declined to entertain her petition for attachment of the respondents’ properties, she fraudulently instituted the present petition and later withdrew the earlier petition. Hence, it was urged that the present petition is not maintainable. 4. The petitioner alone adduced oral evidence in support of her case. The petitioner was examined as PW1, Exts. A1 to A12 were marked on her side. The respondents got marked Exts. B1 to B7 in evidence through PW1. Upon consideration of the oral testimony of the petitioner and the documents produced, the Family Court concluded that the evidence adduced was insufficient to establish that the respondents had misappropriated the petitioner’s gold ornaments or that the petitioner’s parents had entrusted the amount claimed by her to the respondents. 5. We have heard the learned counsel on either side. 6. It is contended by the learned counsel appearing for the respondents that the original petition was not maintainable consequent on the withdrawal of the earlier O.P. To substantiate the said contention, reliance was placed on the following decisions: (i) N.R. Narayan Swamy v. B. Francis Jagan ( MANU/SC/0404/2001 ), (ii) HPCL Bio-Fuels Ltd. v. Shahaji Bhanudas Bhad ( MANU/SC/1188/2024 ), and (iii) Ramesh Chandra Sankla and Ors. v. Vikram Cement and Ors. (MANU/SC/7810/2008). It was urged that there is no evidence to show that the respondents used any of her gold ornaments and hence the impugned order is not liable to be interfered with. 7. The trial court had also taken note of the above contention regarding maintainability while disposing of the petition but did not entertain it on the ground that when the subsequent petition was filed, the earlier petition had already been pending, and hence the bar under Rule 1(4) of Order XXIII of the Code of Civil Procedure would not apply. 8. The trial court had also taken note of the above contention regarding maintainability while disposing of the petition but did not entertain it on the ground that when the subsequent petition was filed, the earlier petition had already been pending, and hence the bar under Rule 1(4) of Order XXIII of the Code of Civil Procedure would not apply. 8. We have perused Ext.B1 memo dated 7.9.2006 submitted by the petitioner before the Family Court, Nedumangad, where the previous petition was instituted, together with Ext.B2 order dated 12.10.2006 passed by the said Court on the said memo. It is to be noted that the subsequent petition was also filed before the same court and was later transferred to the Family Court, Attingal. Ext.B1 shows that even on 7.9.2006 the petitioner intended to withdraw that suit, though the subsequent petition was filed only on 12.10.2006. Paragraph 33 of the present petition states as follows: “The 1st petitioner moved before this Hon’ble Court and filed O.P.581/2006 for the redressal of her grievances. In that O.P., some material defects were crept in because of the inadvertence on the part of the advocate clerk who happened to write the original of the O.P., and hence the 1st petitioner did not want to proceed with the O.P. She filed a memo not pressing the case since the case was only in the preliminary stage and had not been disposed of on merits. There is no impediment in filing this O.P. against the respondents and hence this O.P.” Hence, it is obvious that the petitioner intended to withdraw the earlier proceedings even before instituting the present one. From a reading of Ext.B1, Ext.B2 order, and paragraph 33 of the present petition, it appears that the intention of the petitioner was to move a fresh proceeding to cure certain material defects in the previous petition. For that, she should have obtained the permission of the court, and if such an order had been passed, there would have been no reason for raising the contention that the subsequent proceeding is barred under Order XXIII CPC. However, we are of the view that, when Ext.B1 is read together with Ext.B2 and paragraph 33 as above, it is to be understood as a permission sought in terms of Order XXIII Rule 1(3). 9. However, we are of the view that, when Ext.B1 is read together with Ext.B2 and paragraph 33 as above, it is to be understood as a permission sought in terms of Order XXIII Rule 1(3). 9. We are further constrained to negate the contention on the bar under Order XXIII CPC for yet another reason. Even though sub-rule (4) of Rule 1 of Order XXIII CPC states that where a person withdraws from a suit/proceeding without the permission of the court as per sub-rule (3), he shall be precluded from instituting any fresh suit in respect of the same subject matter, the Hon’ble Supreme Court in Vallabh Das v. Madan Lal [ (1970) 1 SCC 761 ] held as follows: “Mere identity of some of the issues in the two suits does not bring about an identity of the subject- matter in the two suits. ‘Subject-matter’ means the bundle of facts which have to be proved in order to entitle the plaintiff to the relief claimed by him. Where the cause of action and the relief claimed in the second suit are not the same as the cause of action and the relief claimed in the first suit, the second suit cannot be considered to have been brought in respect of the same subject-matter as the first suit.” From the above observation of the Apex Court, it is clear that where the cause of action and the relief claimed in the second suit are not the same as in the first suit, the bar under the above provision would not attract. Though the relief sought in the present petition is similar to the earlier one as regards recovery of gold ornaments, there is a change in the form of the claim—namely, recovery of the market value of the ornaments as on the date of recovery, if the respondents fail to return them. In the former proceedings, what was claimed was a consolidated sum of ?7,00,000/-, if the ornaments were not returned. 10. Further, the cause of action shown in the present petition is also different. In the former proceedings, what was claimed was a consolidated sum of ?7,00,000/-, if the ornaments were not returned. 10. Further, the cause of action shown in the present petition is also different. Paragraph 34 states: “The cause of action for filing this petition has arisen at Varkala village, where her marriage was solemnized on 4/5/2003, which is within the jurisdiction of this Hon’ble Court, and from the various dates of cruelty when the respondent and in- laws treated the petitioner very badly and cruelly as stated in the body of this petition, and from 6/7/2005, the date of desertion, and continuously thereafter.” In the former petition, there was no such pleading, and even on reading the entire pleadings, we do not find the cause of action exactly similar to the present one. Therefore, the subsequent proceeding is not barred under Order XXIII Rule 1. 11. It is contended by the learned counsel for the respondents that in the previous petition, the petitioner failed to obtain a favourable attachment order from the court and that compelled her to file a fresh petition, which amounts to a fraud on the court, and hence her case cannot be entertained. However, we note that, as per Ext.B6 order dated 30.11.2006, this Court left open the remedy of the respondents to challenge the attachment petition by convincing the Family Court about the petitioner’s conduct. The court observed that if the Family Court finds that there was a tainted approach from the petitioner, it would be open to pass appropriate orders. The said direction was issued when the respondents challenged the attachment order. It is fairly submitted by the learned counsel for the respondents that the attachment order was not recalled by the trial court, and it has remained in force till now, consequent to the orders passed by this Court while admitting this appeal. Thus, at present, we find that it is not a ground to discard the petitioner’s contentions on merits. 12. Coming to the contentions regarding the gold ornaments, we find some difficulty in appreciating the case advanced by the respondents. When we evaluate the oral evidence of PW1, the petitioner, together with Ext.A4 series photographs, it is evident that she had more than 40 sovereigns of gold at the time of marriage. 12. Coming to the contentions regarding the gold ornaments, we find some difficulty in appreciating the case advanced by the respondents. When we evaluate the oral evidence of PW1, the petitioner, together with Ext.A4 series photographs, it is evident that she had more than 40 sovereigns of gold at the time of marriage. There is no reason to discredit the said photographs, as the respondents did not produce any marriage photographs to show that Ext.A4 series are not genuine. The trial court also noted the above facts, though it ultimately did not allow the claim for recovery for different reasons. In the schedule of the petition, the details of all the ornaments were furnished. It is relevant to note the reasons given by the trial court for not accepting the petitioner’s case as to the quantity of gold ornaments possessed by her at the time of marriage. Paragraph 10 of the judgment is extracted herein below: “10. The petitioner deposed as PW1 and she was cross-examined at length. She got marked Exts.A4 series photographs of marriage, Exts.A5 and A6 cash bills and Ext.A7 estimate to show that her parents had given her 100 sovereigns of gold ornaments. The genuineness of all the documents were challenged by the respondents and even the marking was objected. It is pertinent to note that the respondent did not produce any photographs of the marriage. The respondents’ case is that petitioner had only 40 sovereigns of gold ornaments and from the same 30 sovereigns were sold and the amount was deposited in the account of the petitioner herself. On going through the deposition of PW1 and the above documents, it is not safe to hold that the petitioner had 100 sovereigns of gold ornaments. In the schedule the 1st item is an ‘oddyaynam’. In Ext.A4 to A7 there is no such item weighing 40 grams as shown in the schedule. However it is not safe to hold that there was 100 sovereigns of gold ornaments adorned by the petitioner at the time of marriage. In the schedule the 1st item is an ‘oddyaynam’. In Ext.A4 to A7 there is no such item weighing 40 grams as shown in the schedule. However it is not safe to hold that there was 100 sovereigns of gold ornaments adorned by the petitioner at the time of marriage. Even if she had so much of gold ornaments it is for her to establish that she was unable to keep her gold ornaments with her, on account of the harassment meted out by the husband and his relatives.” (emphasis added) In short, the court found that the photographs or the cash bills and the estimate (Exts.A5 to A7) do not show that the petitioner had an ‘oddyaynam’. Ext.A4 series, however, clearly shows such an ornament, and hence the finding of the trial court in that respect is erroneous. Merely because the invoices or cash bills do not show the entire extent of ornaments claimed by the petitioner, her version cannot be disbelieved in its entirety. After evaluating those documents and her oral evidence together with the photographs produced, we have no hesitation in holding that the petitioner had at least 70 sovereigns of gold ornaments at the time of her marriage. 13. When examined as PW1, the petitioner meticulously stated the details of the ornaments allegedly misappropriated by the respondents. According to her, she entrusted the entire gold to them and they sold it. However, she stated in paragraph 19 of the original petition that, after 1½ months from the date of marriage, the husband misappropriated some part of the gold ornaments and sold them, later depositing ?1,25,000/-, a portion of the sale proceeds, in her bank account. According to her, she was later compelled to withdraw this money for her husband. On analysing the oral evidence adduced by her, we find no material to substantiate her claim that she withdrew the amount on behalf of her husband. In that circumstance, the case advanced by the respondents in that regard appears more probable. According to them, 30 sovereigns of gold were sold jointly by the petitioner and the first respondent, the sale price was deposited in her account, and the money was withdrawn by her. 14. At the same time, we find the petitioner’s oral evidence reliable with respect to the contention that the remaining ornaments were misappropriated by the respondents. According to them, 30 sovereigns of gold were sold jointly by the petitioner and the first respondent, the sale price was deposited in her account, and the money was withdrawn by her. 14. At the same time, we find the petitioner’s oral evidence reliable with respect to the contention that the remaining ornaments were misappropriated by the respondents. She was extensively cross-examined on every aspect of her case and withstood the test of cross-examination. The learned counsel for the respondents could not point to any material capable of discrediting her version. 15. It is admitted by the respondents in their pleadings that 30 sovereigns of the petitioner’s gold were sold by the first respondent together with her. This shows that he had access to and control over her ornaments. Notably, the respondents did not enter the witness box or adduce any oral evidence. To the extent that the petitioner’s evidence establishes that her remaining ornaments were misappropriated by the respondents, there is no rebuttal. However, it is only reasonable to hold that at least five sovereigns might have been retained by the petitioner for daily use. In short, it can be safely concluded that the respondents are liable to return 35 sovereigns [70 – (30+5) = 35] of gold ornaments or their market value as on the date of realisation. There is no reliable evidence to accept the petitioner’s claim that her parents entrusted ?3,00,000/- with the first respondent. The trial court failed to appreciate the evidence properly, seemingly because it was swayed by the petitioner’s conduct, as we noted initially. While the petitioner’s conduct is to be deprecated, it should not prevent her from obtaining substantial justice when her claim, on the merits, is otherwise proved. 16. The petitioner/first appellant died during the pendency of the appeal. It is submitted by both sides that the marriage between the petitioner and the first respondent had been dissolved by a decree of the court. It was recorded that the second appellant is her sole surviving legal heir. Thus, the second appellant is entitled to get back the gold ornaments of the petitioner. In the result, the appeal is allowed in part. The respondents are directed to return 35 sovereigns of gold ornaments to the second appellant within 2 months from today. It was recorded that the second appellant is her sole surviving legal heir. Thus, the second appellant is entitled to get back the gold ornaments of the petitioner. In the result, the appeal is allowed in part. The respondents are directed to return 35 sovereigns of gold ornaments to the second appellant within 2 months from today. If the said direction is not complied with, he can recover the market value of 35 sovereigns of gold ornaments as on the date of realisation, from the respondents and their assets.