Dismissed

Vikram Pandey v. Anupama Pandey

Jharkhand HC3 Nov 2022FA/73/2019

Case brief

AI extract

What is this about?

Appeal against dismissal of a fresh divorce suit. The Family Court held that a previous dismissal for non-prosecution barred a fresh suit under CPC. The High Court set aside the order, holding that liberty granted to file a fresh suit barred a writ challenging delay; the dismissal was error as preceding order granted liberty.

What did the court decide?

The order dated 19th January 2019 is set aside. Original Suit No. 230 of 2017 is restored to file; parties to appear on 13th December 2022.

Vikram Pandey Vs Anupama Pandey — Matrimonial and Divorce | Jharkhand HC (2022)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI (Civil Appellate Jurisdiction)

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FA No. 73 of 2019

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Vikram Pandey, son of Sri K.P. Pandey, resident of 14/46, 2^nd Floor Subhash Nagar, PO & PS Subhash Nagar, New Delhi, 110027 … …. Appellant

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Versus

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Anupama Pandey, wife of Sri Vikram Pandey, daughter of Mr. B.K. Pandey, resident of M.N. Colony, New Boreya River Bridge, PO and PS Kanke, District-Ranchi. … …. Respondent

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-------

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CORAM : HON’BLE MR. JUSTICE SHREE CHANDRASHEKHAR HON’BLE MR. JUSTICE RATNAKER BHENGRA

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For the Appellant(s) : Mrs. Ritu Kumar, Advocate; Mrs. Shatakshi, Advocate; Mrs. Ratna Prabha, Advocate For the Respondent : Ms. Alka Kumari, Advocate; Ms. Sonal Sodhani, Advocate ------ O R D E R 3^rd November 2022

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Per, Shree Chandrashekhar,J.

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Vikram Pandey instituted MTS No. 138 of 2015 for a decree of divorce by dissolution of his marriage with Anupama Pandey solemnized on 19^th April 2012, on the ground of cruelty as provided under section 13 (1) (i-a) of the Hindu Marriage Act, 1955. The suit was dismissed for non- prosecution by an order dated 6^th October 2016. Subsequently, by an order dated 12^th April 2017 passed in Misc. Case No. 35 of 2016 which was filed in MTS No. 138 of 2015 the appellant was permitted to withdraw the suit with permission to file a fresh one. Thereafter, he filed Original Suit No. 230 of 2017 which has been dismissed by an order dated 19^th January 2019 on the ground that the suit was barred under Order IX Rule 9 of the Code of Civil Procedure (in short, 'CPC'). 2. The aforesaid order dated 19^th January 2019 passed in Original Suit No. 230 of 2017 has been challenged by the appellant on the ground that once permission was granted by the Court to file a fresh suit, the bar under Order IX Rule 9 CPC would not apply in his case.

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Ms. Alka Kumari, the learned counsel for the respondent has however supported the impugned order dated 19^th January 2019 by which the

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2 FA No. 73 of 2019

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Original Suit No. 230 of 2017 has been dismissed, contending that if a suit has been dismissed under Order IX Rule 8 of CPC no fresh suit shall lie for the same cause of action.

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Briefly stated, a suit for divorce vide MTS No. 138 of 2015 was filed by the appellant which by virtue of an order passed by the Hon'ble Supreme Court in Transfer Petition (C) No. 723 of 2014 was transferred to the Family Court, Ranchi where it was registered on 13^th April 2015. From the proceedings in MTS No. 138 of 2015, it appears that the appellant filed an application for amendment which however was not prosecuted by him in spite of opportunities provided to him by the Court. On 12^th August 2016, the Court granted last chance to the appellant to amend the petition with a caution that if he fails to carry out amendment the suit may be dismissed. Still, the appellant did not prosecute the matter and remain absent on the next date of hearing – that was on 17^th September 2016. Consequently, by an order dated 6^th October 2016 the suit was dismissed for non-prosecution.

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The order dated 6^th October 2016 reads as under:

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“ Petitioner is absent. Respondent has filed hazri. From perusal of record it appears that petitioner is absent since long and he has not complying the Court's order dated 12.08.2016 and also today he has not filed time petition. However, petitioner has lost interest to further proceed with the suit. Hence, the present Suit is hereby dismissed as nonprosecution.”

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This order has been construed by the Family Court as a bar under Order IX Rule 9 CPC to institute a fresh suit on the same cause of action.

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The appellant filed a composite application for restoration and withdrawal of the suit which was registered as Misc. Case No. 35 of 2016. As noticed above, Misc. Case No.35 of 2016 was allowed by an order dated 12^th April 2017 and MTS No. 138 of 2015 was dismissed as withdrawn with liberty to the appellant to institute a fresh suit. Since this order has significant bearing on legality of the impugned order dated 19^th January 2019, the same is extracted in full hereunder:

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“A petition has been filed under Order XXIII Rule 1 r/w Section 151 of CPC with a prayer therein to allow withdrawal of the present Misc. application with liberty to file a fresh suit.

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I. that on transfer of the case by the Hon'ble Supreme Court of India from Delhi to this Court defendant appeared and she did not file written statement. The date was fixed in the said MTS No. 138/2015, but due to some unavoidable reason the petitioner was absent and the Advocate did not make any "Pairvy" as a result the suit was ordered to be dismissed for default, on the ground of nonprosecution, vide order dated 06.10.2016 of this Court.

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3 FA No. 73 of 2019

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II. that petitioner after getting knowledge of dismissal order file an application for restoration of suit to its original file. III. that number of subsequent development have taken place since the date of appearance of respondent in the MTS and also, therefore material facts are elaborately required to be placed on the record.

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IV. that under Order X rule 4, rectified as Order IX Rule 4 of C.P.C. a right is conferred upon the party to bring a fresh suit as the petitioner has intended to place elaborately and therefore he has decided to file a fresh suit to withdraw the present Misc. Case.

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V. that petitioner has opted to file a fresh suit,therefore, he seeks liberty to this Hon'ble Court for granting him withdrawal of the present Misc. Case 2. From perusal of record, I find that this case was filed on 08.12.2016 for restoration of original suit (MTS 138/2015). On 17.02.2012 the petitioner Vikram Pandey was examined, crossexamined and discharged subject to payment of cost of Rs.1000/- in compliance with order dated 13.02.2017. On behalf of respondent Advocate Sri. Shyamal Baran Das appeared and submitted that withdrawal may be allowed subject to heavy compensatory cost.

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3. Considering that case was admitted on 02.02.2017 and respondent filed show cause on 13.02.2017 and thereafter dates were fixed on 17.02.2017 and 16.03.2017 and that respondent had to contest the case on the cost of expenses, therefore, petition is allowed for withdrawal of the present Misc. Case subject to payment of compensatory cost in terms of Rs.3000/-. The petitioner is directed to pay said cost through Nazarat under intimation to this Court. The case is dismissed as withdrawn with liberty to the petitioner to file a fresh suit as prayed for.”

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Order XXIII Rule 1 CPC provides that at any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim, provided where the plaintiff is a minor or other person to whom the provisions under Rules 1 to 14 of order XXXII apply, the suit or the claim cannot be abandoned without leave of the Court. Rule 3 to Order XXIII CPC provides that if the Court is satisfied that a suit must fail by reason of some formal defect or 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 grant such permission to the plaintiff to withdraw the suit with liberty to institute a fresh suit. A mere glance at the order dated 12^th April 2017 would reveal that permission was granted to the appellant to file a fresh suit. That he has done after seeking permission of the Court to withdraw MTS No. 138 of 2015. Therefore the order dated 12^th April 2017 is an order under Order XXIII Rule 1(3) CPC by which liberty has been granted to the appellant to file a fresh suit, a reference of which we find in paragraph No. (3) of the order dated 12^th April 2017. Furthermore, the miscellaneous application was filed for restoration of MTS No.138 of 2015 can be gathered from paragraph Nos (II) and (2) of the said order.

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4 FA No. 73 of 2019

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In the impugned order dated 19^th January 2019, the Family Court has however referred to Order IX Rule 8 of the Code of Civil Procedure to hold that the appellant was debarred from filing a fresh suit.

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The relevant considerations by the Family Court in this regard are contained in Paragraph Nos. 6 and 7 of the said order, which are extracted hereinbelow:

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“6. Since the suit was dismissed for non-prosecution, the petitioner/husband had preferred application being Civil Misc. 35/2016 for restoration of Original Suit No. 128/2015. It appears that on application was filed for withdrawing the said restoration application by petitioner and vide order dated 12.04.2017 the restoration application was dismissed as withdrawn. After withdrawal of restoration application present suit was filed on 17.04.2017 which has been registered as Original Suit No. 230/2017. The moot point which requires decision on preliminary objection by respondent-wife is whether the dismissal of Original Suit No. 138/2015 vide order dated 06.10.2016 is dismissed under Order IX Rule 3 or it is a dismissal under Order IX Rule 8 CPC. Order IX CPC deals with appearance of parties and consequence of non appearance. Rule 3 of Order IX makes provision for dismissal of a suit in absence of both parties. The next Rule 4 of Order IX provides that if a suit is dismissed under Rule 3 the plaintiff may bring a fresh suit or he may apply for setting aside order of dismissal. Rule 8 of Order IX on the other hand makes provision for dismissal of a suit where the defendant appears but plaintiff does not appear when the suit is called out for hearing. Rule 9 of Order IX CPC provides that where a suit has been dismissed under Rule 8 the plaintiff shall be precluded for bringing a fresh suit in support of same cause of action. However, he may apply to set aside the order of dismissal.

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7. In the present case it is clear from the order dated 06.10.2016 passed in previous suit MTS No. 138/2015 that when the case was called out the petitioner was absent and respondent was present. Meaning, thereby the suit has been dismissed because of absence of plaintiff and the defendant has been present and therefore the dismissal of previous suit MTS 138 of 2015 is covered under Rule 8 Order IX CPC. Therefore Rule 9 of Order IX CPC shall preclude the petitioner for filing a fresh suit. On the cost of repeatation it may be mentioned here that petitioner had taken step for restoration of MTS Case No. 138/2015, but he withdrew his restoration application and restoration application was dismissed as withdrawn vide order dated 12.04.2017. Therefore, in my considered view the petitioner husband is precluded from filing a fresh suit on the same cause of action.”

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11. Order 9 Rule 9 CPC reads as under:

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9. Decree against plaintiff by default bars fresh suit .— (1) Where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as

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5 FA No. 73 of 2019

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to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.

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(2) No order shall be made under this rule unless notice of the application has been served on the opposite party.

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In our opinion, the Family Court fell into error as it failed to take into consideration second part of sub-rule (1) to Rule 9 to Order IX CPC which provides that if the Court is satisfied that there was sufficient cause for nonappearance of the plaintiff when the suit was called for hearing then the Court may make an order setting aside the dismissal upon imposition of cost or on any other term which it may think fit. As noticed above, by an order dated 12^th April 2017, the Court has permitted the appellant to withdraw the suit with liberty to file a fresh suit on the imposition of cost of Rs. 3,000/-. It is admitted at bar that the order dated 12^th April 2017 passed in Misc. Case No. 35 of 2016 has not been challenged by the respondent and while so it shall bind the parties and, therefore, the respondent was precluded from raising objection based on Order IX Rule 9 CPC, which the Family Court has erroneously accepted.

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For the aforesaid reasons, we find serious infirmity in the order dated 19^th January 2019 by which the Original Suit No. 230 of 2017 has been dismissed and, accordingly, the said order is set aside.

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Consequently, Original Suit No. 230 of 2017 is restored to its original file. The parties shall appear before the Court concerned on 13^th December 2022 on which date the proceeding in Original Suit No. 230 of 2017 shall commence in accordance with law.

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(Shree Chandrashekhar, J.)

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(Ratnaker Bhengra, J.)

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Jharkhand High Court, Ranchi Dated: 3^rd November, 2022 Sharda/Nibha-NAFR

Vikram Pandey v. Anupama Pandey

Case brief

What is this about?

What did the court decide?

Vikram Pandey v. Anupama Pandey

Case brief

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What did the court decide?

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