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Shiby M.Chacko vs Litha Skaria on 29 October, 2018

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.
**************************
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

5

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

6

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

7

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.569/2018

8

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

9

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

12

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

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