How to withdraw from the Suit with liberty to file fresh Suit [JUDGMENT]

Code of Civil Procedure, 1908 - Order XXIII Rule 1(3) - the plaintiff can seek permission to withdraw from the suit 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.

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.

Divorce Act, 1869 - Section 10(x) - Permission to withdraw the petition for divorce - 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.

Facts of the Case

In the instant case, the petitioner has no case that the 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. In the instant case, the petitioner has got a plea that 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.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

C.K.ABDUL REHIM & R.NARAYANA PISHARADI, JJ.

O.P.(FC) No.569 of 2018

Dated this the 29th day of October, 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

BY ADVS. SRI.LIJU.V.STEPHEN SMT.INDU SUSAN JACOB KUM.PRIYANKA JOSE

RESPONDENT:

LITHA SKARIA

THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 22.10.2018, THE COURT ON 29.10.2018 PASSED THE FOLLOWING:

J U D G M E N T

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 sufficientgrounds 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 tome 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 insupport 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 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 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 sameproceedings. 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 fagend, 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 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 ofthe 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 inthe 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 atliberty 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.