Page No.# 1/3
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP 129/2018
1:SMTI PRIYANKI PIKI BARUAH
W/O SRI MANJIT BHUYAN, C/O MR. ARUN THAKUR, R/O HOUSE NO. 87
AJANTA PATH, SURVEY, BELTOLA, DIST. KAMRUP (M), PIN 781028, ASSAM.
1:SRI MANJIT BHUYAN,S/O LT. SIBA BHUYAN, R/O
MADHAB,,AMUGURIHAT, P.O. AND P.S.
JAMUGURIHAT, DIST. SONITPUR, ASSAM, PIN 784180
Advocate for the Petitioner : MR. K D CHETRI
Advocate for the Respondent : MR. R BARUAH
HONOURABLE MR. JUSTICE PRASANTA KUMAR DEKA
Date : 15-03-2019
Heard Mr. K. D. Chetri learned counsel for the petitioner and Mr. R. Barua, learned
counsel for the respondent.
Order dated 21.7.2018 by the learned Additional District Judge, Sonitpur, Tezpur in Misc
(G) Case No. 8/2018 is put under challenge in this revision petition. The present respondent
and the petitioner are husband and wife and they are the parents of a minor daughter.
Marital dispute cropped up between the parties resulting of filing of divorce proceeding which
is pending before the learned Principal Judge, Kamrup(M) Guwahati. The respondent is a
resident of Tezpur and the petitioner wife is a resident of Guwahati. The divorce suit which
was filed at Tezpur was transferred to Guwahati by an order passed by this Court. The
respondent therein filed Misc (G) Case No. 145/2017 under the Guardians and Wards Act,
Page No.# 2/3
1890 claiming the guardianship of both the person and property of minor daughter alongwith
the custody. The petitioner entered appearance in the said Misc (G) Case No.145/2017. While
the said proceeding was pending the respondent filed an application for withdrawal of the
said Misc.(G) Case No. 145/2017 on the ground that talk of compromise was going on
between the parties to the present petition for amicable settlement of the dispute. As such,
he wanted to withdraw the said Misc (G) Case No. 145/2017 however without liberty. Vide
order dated 14.12.2017 the said Misc (G) Case No. 145/2017 was dismissed on withdrawal.
Subsequent thereto another petition u/s 7 and 25 of the Guardians and Wards Act,
1890 was filed before the court of learned District Judge at Tezpur which was registered as
Misc (G) Case No. 08/2018. In the said petition the respondent stated that he visited
Guwahati to meet the petitioner and his daughter but he was disallowed to meet his
daughter. Subsequently he again visited on 14.1.2018 and he was disallowed. Accordingly he
sought for the guardianship and custody of his minor daughter in the custody of the
The petitioner filed an application u/s 11 of the CPC stating that as no leave was
obtained at the time of withdrawal of earlier guardianship petition in the court of Principal
Judge, Kamrup(M), Guwahati under such circumstances the subsequent petition on the same
facts and grounds cannot be entertained. As such, applying the principle u/s 11 of the CPC
the petitioner sought for dismissal of the said guardianship petition at Tezpur. Vide impugned
order dated 21.7.2018, the said petition was rejected. While dismissing the said petition of
the petitioner the learned court below held that the cause of action in the subsequent petition
differs from the earlier one and as such the principles of res judicata u/s 11 CPC is not
It is submitted by Mr. Chetri that Order 23 Rule 3 CPC requires mandatorily a leave to
file subsequent suit once the same is withdrawn. But in the present case in hand the leave
earlier was not granted nor it was sought for by the respondent and as such subsequent filing
of the guardianship petition on the same cause of action ought to have been disallowed.
However, the court below failed to consider the provision under Order 23 Rule 3 of CPC
wherein the leave is mandatory in order to file a subsequent suit.
Page No.# 3/3
On the other hand, Mr. Borua submits that the cause of action was totally separate
inasmuch initially as the talk of compromise was going on or about to start keeping in view
that compromise would be arrived as such the said petition was withdrawn. Subsequently as
the compromise talk did not materialize to any beneficial settlement, under such circumstance
a fresh cause of action accrued to the respondent and as such the petition was filed claiming
guardianship of custody of minor.
I have considered the submission of learned counsel. For determination of an issue
framed u/s 11 CPC, evidence is required and as such, the said issue is of mixed question of
fact and law. Learned court below on his own had compared both the petitions filed under
Guardianship Act and came to the conclusion that the cause of actions are separate in both
the petitions. This itself shows that evidence is required in deciding the issue under Section
Keeping in view the submissions of the counsel I am of the opinion that the present
petitioner shall file written objection against the guardianship petition filed by respondent and
shall take the issue of res-judicata and non-seeking of leave at the time of withdrawal and
while deciding the petition as a whole the issue raised by the petitioner before the court
below be taken up again considering the issue involve both question of fact and law.
Accordingly the impugned order dated 21.7.2018 is set aside.
However, while giving a finding to the said issue the same shall be an independent one
without being influenced by the impugned order dated 21.7.2018. Accordingly, this revision
petition stands disposed of.
Parties to this petition shall appear before the learned Addl. District Judge, Sontipur at
Tezpur on 10.4.2019.
This revision petition is allowed, however, subject to the observation made by this court.
Interim order passed earlier stands vacated.