IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI
MONDAY ,THE 29TH DAY OF OCTOBER 2018 / 7TH KARTHIKA, 1940
OP (FC).No. 569 of 2018
AGAINST THE ORDER IN IA NO.641/2018 IN OP(Div)1150/2015 of FAMILY
COURT, PATHANAMTHITTA DATED 17-09-2018
PETITIONER:
SHIBY M.CHACKO
AGED 36 YEARS
S/O.CHACKO, VETTATHERIYIL HOUSE, EDAPPARIYARAM P.O.,
ELANTHOOR MURI, ELANTHOOR VILLAGE, KOZHENCHERRY
TALUK.
BY ADVS.
SRI.LIJU.V.STEPHEN
SMT.INDU SUSAN JACOB
KUM.PRIYANKA JOSE
RESPONDENT:
LITHA SKARIA
AGED 32 YEARS
D/O.SKARIA, KOLLKUZHIYIL HOUSE, EDAPPARIYARAM P.O.,
ELANTHOOR MURI, ELANTHOOR VILLAGE, KOZHENCHERRY
TALUK, PIN 689 643.
THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 22.10.2018,
THE COURT ON 29.10.2018 PASSED THE FOLLOWING:
O.P.(FC) No.569/2018
2
“CR”
C.K.ABDUL REHIM
R.NARAYANA PISHARADI, JJ.
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O.P.(FC) No.569 of 2018
———————————————
Dated this the 29th day of October, 2018
JUDGMENT
R.Narayana Pisharadi, J
The petitioner is the husband and the respondent is the
wife.
2. The petitioner filed O.P.No.1150/2015 in the Family
Court against the respondent for granting a decree of divorce.
When the case was posted for recording evidence and after filing
affidavit in lieu of examination-in-chief, the petitioner filed an
application as I.A.No.641/2018 in the Family Court for granting
him permission to withdraw the petition for divorce with liberty to
institute a fresh petition. The respondent filed objection to that
application. As per Ext.P5 order, the Family Court dismissed the
application I.A.No.641/2018 holding that there are no sufficient
O.P.(FC) No.569/2018
3
grounds to allow the petitioner to withdraw the petition for
divorce with liberty to institute a fresh petition. Ext.P5 order is
under challenge in this Original Petition filed under Article 227 of
the Constitution of India.
3. We have heard learned counsel for the petitioner.
4. The petition for divorce is filed under Section 10(x) of
the Divorce Act, 1869. However, the averments in the petition
for divorce would show that the petitioner has sought a decree of
divorce not only on the ground of cruelty but also on the ground
of desertion.
5. The petitioner sought withdrawal of the petition for
divorce, with liberty to institute a fresh petition for divorce, on
the ground that he has omitted to incorporate material
averments in the original petition regarding the acts of cruelty
committed by the wife. The petitioner has also attributed
negligence on the part of the lawyer engaged by him earlier for
such omission. In the affidavit filed in support of the application
I.A.No.641/2018, the petitioner has stated as follows:
“9. All the severity of the cruelties meted out to
O.P.(FC) No.569/2018
4
me was not property explained in the original petition.
The said case was drafted by my previous advocate in a
very light and casual manner without giving any
emphasis to the cruelties that were meted out to me by
the respondent. So also no incidence of cruelty has
been mentioned in the case even though all these facts
were made known to my previous advocate.”
6. The petitioner apprehended that on account of lack of
sufficient pleadings, his petition for divorce would be dismissed.
The present Original Petition filed before this Court, contains
averments as to the grounds for seeking withdrawal of the
petition for divorce, which read as follows:
“Marital discord existed between the parties
from the very beginning of their marriage and inspite
of several measures taken for reconciliation the
petitioner was constrained to file the present O.P.
(Div) No.1150/2015 before the Family Court,
Pathanamthitta for divorce. The petitioner had
explained the entire facts relating to the cruelty and
desertion meted out to petitioner at the hands of the
respondent. But unfortunately the previous counsel
engaged by the petitioner had not incorporated all
the relevant aspects of the case while drafting the
Divorce Petition.”
7. The aforesaid averments in the affidavit filed in
O.P.(FC) No.569/2018
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support of the application I.A.No.641/2018 and the present
Original Petition filed before this Court would indicate that the
petitioner had sought withdrawal of the petition for divorce, with
liberty to institute a fresh petition for divorce, on the ground that
the petition for divorce filed by him does not contain material and
sufficient pleadings with regard to the acts of cruelty committed
by the wife.
8. Order XXIII Rule 1(3) of the Code of Civil Procedure,
1908 (hereinafter referred to as ‘the Code’) reads as follows:
“(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”.
9. A bare perusal of the aforesaid provision would show
that the plaintiff can seek permission to withdraw from the suit
O.P.(FC) No.569/2018
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with liberty to file a fresh suit in respect of the subject matter of
such suit, on two grounds: (1) The suit must fail by reason of
some formal defect, or (2) There are sufficient grounds for
allowing him to institute a fresh suit.
10. The principle underlying Rule 1 of Order XXIII of the
Code is that when a plaintiff once institutes a suit in a court and
thereby avails of a remedy given to him under law, he cannot be
permitted to institute a fresh suit in respect of the same subject
matter again after abandoning the earlier suit or by withdrawing
it without the permission of the court to file fresh suit. In order
to prevent a litigant from abusing the process of the court by
instituting suit again and again on the same cause of action
without any good reason, the Code insists that he should obtain
the permission of the court to institute a fresh suit after
establishing either of the two grounds mentioned in sub-rule (3)
of Rule 1 of Order XXIII of the Code. The principle underlying
the above rule is founded on public policy (See Sarguja
Transport Service v. S.T.A.T : AIR 1987 SC 88).
11. In the instant case, the petitioner has no case that the
O.P.(FC) No.569/2018
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petition for divorce filed by him would fail on account of some
formal defect. He seeks withdrawal of the petition for divorce on
the ground that it does not contain material averments with
regard to the acts of cruelty committed by the wife. The
question arises whether lack of pleadings in the petition for
divorce can be considered as sufficient ground for allowing the
petitioner to withdraw it with liberty to institute a fresh petition
for divorce.
12. Learned counsel for the petitioner has relied upon the
decision in Prabhawathi v. Kunhathabi Umma : 1981 KLT
438 in support of his contention that lack of pleadings can be
considered as a sufficient ground to grant permission to withdraw
a suit with liberty to institute a fresh suit on the same cause of
action. In Prabhawathi (supra) this Court has held as follows:
“The object of Rule 1 is no doubt not to enable a
party to cover up all his omissions and failures and
attempt a second suit on the same cause of action in
order to avoid the result of all his failures; but the rule
is equally intended to ensure that a fair trial of a suit on
merits is not shut out because of a bona fide error or
omission which cannot be cured in the same
O.P.(FC) No.569/20188
proceedings. Viewed in this background, the wider
discretion granted to the court under Clause (b) to
examine the sufficiency of the grounds urged in support
of every request for withdrawal is intended to advance
the cause of justice. The power is conferred on a court
and it is also authorised to put the plaintiff on terms;
and there is no guarantee that the second suit would be
maintainable.” (emphasis supplied)
13. The aforesaid passage in Prabhawathi (supra) itself
would show that when an error or omission can be cured in the
same proceedings, it cannot constitute sufficient ground for
granting permission to withdraw the suit with liberty to institute a
fresh suit.
14. In Mathai v. Ranjith Peter : 2012(4) KLT 885, this
Court has held that the question whether lack of pleadings can be
a sufficient ground contemplated under Order XXIII Rule 1(3)(b)
of the Code would depend upon the bona fides of the alleged lack
of pleadings and circumstance under which the lack of pleadings
comes to the notice of the plaintiff. It has been held that if lack
of pleadings is one inherent in the plaint itself and was continuing
unmindfully despite due application of mind thereon, at the fag
O.P.(FC) No.569/2018
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end, it cannot be taken as a sufficient ground under clause (b) of
sub-rule (3) because the plaintiff could have resorted to remedies
under Order VI Rule 17 of the Code to cure the defects in the
pleadings by means of amendment. It has been further held that
when permission is sought for filing a fresh suit at the fag end of
the trial, it is incumbent upon the court to meticulously examine
whether the alleged lack of pleadings is bona fide and whether
the lack of pleadings arose from the discovery of a new important
fact which was not within knowledge or could not be noticed,
despite exercise of due diligence at all on earlier occasions,
before the commencement of trial and if the answer is negative,
the grant of liberty for another round of litigation would be
apparently unjust and inequitable. It has also been held that if
the lack of pleadings comes to the notice of the plaintiff
consequent to a subsequent event, having fundamental impact
over the matter in issue and if the real question in controversy
can be determined only by way of fresh suit, grant of liberty to
file fresh suit would be justifiable.
15. In the instant case, the petitioner has got a plea that
O.P.(FC) No.569/2018
10
he had instructed his lawyer regarding the acts of cruelty
committed by the wife but on account of the negligence of the
lawyer, averments in that regard were not incorporated in the
petition for divorce. This plea lacks credibility. The petitioner
has no case that he is illiterate. The petition for divorce is
drafted in Malayalam. It is signed by the petitioner. In such
circumstances, it cannot be found that it was a bona fide
omission to incorporate necessary averments in the petition for
divorce.
16. The petition for divorce was filed as early as on
23.12.2015. The application for withdrawal of the petition for
divorce was filed only on 26.04.2018. The application was filed
only after the case was posted for recording evidence. The
petitioner had filed affidavit in lieu of examination-in-chief as
early as on 08.02.2017. In such circumstances, it is evident that
the petitioner has no bona fides in filing the application seeking
permission to withdraw the petition for divorce with liberty to
institute a fresh petition.
17. Clause (b) of sub-rule (3) of Rule 1 of Order XXIII of
O.P.(FC) No.569/2018
11
the Code contains the mandate to the court that it must be
satisfied about the sufficiency of the grounds for allowing the
plaintiff to institute a fresh suit for the same claim or part of the
claim on the same cause of action. The court is to discharge the
duty mandated under the provision of the Code on taking into
consideration all relevant aspects of the matter including the
desirability of permitting the party to start a fresh round of
litigation on the same cause of action. The court should apply its
mind to the case with a view to ensure strict compliance with the
conditions prescribed in sub-rule (3) of Rule 1 of Order XXIII of
the Code. It is the duty of the court to feel satisfied that there
exist proper grounds/reasons for granting permission for
withdrawal of the suit with leave to file fresh suit by the plaintiff
and in such a matter the statutory mandate is not complied with
by merely stating that grant of permission will not prejudice the
defendants (See K.S.Bhoopathy v. Kokila : AIR 2000 SC
2132).
18. When the application filed by the petitioner seeking
permission to withdraw the petition for divorce is considered in
O.P.(FC) No.569/2018
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the light of the principles stated in K.S.Bhoopathy (supra) and
Mathai (supra), it can be found that lack of pleadings in the
petition for divorce regarding the acts of cruelty committed by
the wife cannot be considered as a sufficient ground as
contemplated under Clause (b) of sub-rule (3) of Rule 1 of Order
XXIII of the Code. A party cannot be permitted to protract the
litigation by withdrawing the suit with permission to institute a
fresh suit where the ingredients of clause (a) or (b) of sub-rule
(3) of Rule 1 of Order XXIII of the Code are not made out. This
provision is not intended to enable a plaintiff to withdraw one
suit and institute any suit as he likes.
19. In the aforesaid circumstances, we find no illegality,
impropriety or perversity in Ext.P5 order passed by the Family
Court so as to invoke the supervisory jurisdiction of this Court
vested under Article 227 of the Constitution of India.
20. Learned counsel for the petitioner has prayed that he
may be permitted to file application for amendment of the
petition for divorce to incorporate necessary pleadings regarding
the acts of cruelty committed by the wife. The petitioner is at
O.P.(FC) No.569/2018
13
liberty to file such application, if advised to do so. We express no
opinion with regard to the maintainability of an application for
amendment of the petition for divorce. If any such application is
filed, the trial court shall consider it according to law and make
an independent decision on its own merits.
Consequently, we dismiss the Original Petition.
(sd/-)
C.K.ABDUL REHIM, JUDGE
(sd/-)
R.NARAYANA PISHARADI, JUDGE
jsr/25/10/2018
O.P.(FC) No.569/2018
14
APPENDIX
EXHIBIT P1 A TRUE COPY OF THE O.P.
(DIV)NO.1150/2015 BEFORE THE FAMILY
COURT, PATHANAMTHITTA DATED 23.12.2015
FILED BY THE PETITIONER.
EXHIBIT P2 A TRUE COPY OF THE OBJECTION FILED IN
O.P.(DIV)NO.1150/2015 BEFORE THE FAMILY
COURT, PATHANAMTHITTA DATED 20.7.2016
FILED BY THE RESPONDENT.
EXHIBIT P3 A TRUE COPY OF THE I.A.NO.641/2018 IN
O.P.(DIV)NO.1150/2015 BEFORE THE FAMILY
COURT, PATHANAMTHITTA FILED BY THE
PETITIONER DATED 26.4.2018.
EXHIBIT P4 A TRUE COPY OF THE OBJECTION IN
I.A.NO.641/2018 IN O.P.
(DIV)NO.1150/2015 BEFORE THE FAMILY
COURT, PATHANAMTHITTA FILED BY THE
RESPONDENT.
EXHIBIT P5 A TRUE COPY OF THE ORDER IN
I.A.NO.641/2018 IN O.P.
(DIV)NO.1150/2015 PASSED BY THE FAMILY
COURT, PATHANAMTHITTA DATED 17.9.2018.
RESPONDENT’S
EXHIBITS :
NIL
TRUE COPY
PS TO JUDGE
