Dismissed¶41

A.K.Mohideen v. Zeenath Shakira

Madras HC16 Apr 2026AS(MD)/243/2023

Case brief

AI extract

What is this about?

Rejection of plaint; Order VII Rule 11 CPC; Order 23 Rule 4 CPC; withdrawal of suit without liberty to file fresh suit; same cause of action; suit for dissolution of marriage solemnized 29.08.2008 per Islamic rites; earlier suit O.S.No.17 of 2020 dismissed as withdrawn; Family Court Madurai; A.K.Mohideen v. Zeenath Shakria; A.S.(MD)No.243 of 2023; C.M.P.(MD)No.13558 of 2023; Madurai Bench of Madras High Court; decided 16.04.2026; appeal dismissed, no costs; plaint rejection upheld as suit barred.

What did the court decide?

As per Order 23 Rule 4 CPC, a plaintiff who abandons a suit without obtaining liberty to file a fresh suit on the same cause of action is precluded from instituting any fresh suit on that subject matter; the appellant's withdrawal endorsement did not seek such liberty, so the earlier suit was dismissed without grant of liberty.

A.K.Mohideen Vs Zeenath Shakira — Madras HC (2026) — LawSathi Research

What the court decided

AI extract

Outcome

Dismissed

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Issue for consideration

Whether the impugned order rejecting the plaint in O.S.No.45 of 2020 and dismissing the dissolution-of-marriage suit should be set aside, given that the appellant had earlier abandoned O.S.No.17 of 2020 on the same cause of action without liberty to file a fresh suit.

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Court's answer

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Ratio / Principle

Since the subject matter and the relief sought in the earlier suit and the present suit are one and the same, the court below rightly invoked Order VII Rule 11 CPC and held that the present suit is not maintainable and is barred.

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Key takeaways

This Court found no ground to interfere with the order passed by the court below allowing the first respondent's application; accordingly the appeal was dismissed.ratio¶41

Detailed headnote1 paragraphs

Madras High Court, Madurai Bench (A.S.(MD)No.243 of 2023, decided 16.04.2026; coram G.R.Swaminathan and R.POORNIMA, JJ.; judgment delivered by G.R.Swaminathan, J.). Appeal under Section 96 CPC r/w Order 41 Rule 1 CPC against the Family Court, Madurai order dated 25.07.2023 in I.A.No.1558 of 2022 in O.S.No.45 of 2020, whereby the plaint in a suit for dissolution of marriage was rejected and the suit dismissed. The appellant had earlier instituted O.S.No.17 of 2020 alleging his wife (first respondent) was leading an adulterous life, but withdrew it by memo without seeking liberty to file a fresh suit; within two days he laid the present suit with the same prayer and cause of action, the only addition being two persons impleaded as alleged paramours. Held: under Order 23 Rule 4 CPC a plaintiff who abandons a suit without liberty is precluded from filing a fresh suit on the same cause of action; the subject matter and relief being identical, the court below rightly invoked Order VII Rule 11 CPC and held the second suit not maintainable and barred. Appeal dismissed, no costs; connected C.M.P.(MD)No.13558 of 2023 closed. Five precedents cited by appellant's counsel were listed but not judicially engaged.

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A.S.(MD)No.243 of 2023

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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DATED : 16.04.2026

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CORAM

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THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN and THE HONOURABLE MS.JUSTICE R.POORNIMA

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A.S.(MD)No.243 of 2023 and C.M.P.(MD)No.13558 of 2023

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A.K.Mohideen ... Appellant

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Vs.

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1.Zeenath Shakria 2.H.Solai Mohamed 3.K.Meenashisundaram @ Sundar 4.Mohammed Ali ... Respondents

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Prayer : Appeal Suit filed under Section 96 of Civil Procedure Code r/w. Order 41 Rule 1 of Civil Procedure Code, to allow this appeal by setting aside the fair and decreetal order passed in I.A.No.1558 of 2022 in O.S.No.45 of 2020 dated 25.07.2023 on the file of the Family Court, Madurai.

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For Appellant : Mr.P.M.Vishnuvarthanan For Respondents : Mr.L.Shaji for R1

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https://www.mhc.tn.gov.in/judis

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A.S.(MD)No.243 of 2023

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JUDGMENT (Judgment of the Court was delivered by G.R.Swaminathan, J.)

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The plaintiff in O.S.No.45 of 2020 on the file of the Family Court,

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Madurai is the appellant herein. The said suit was instituted for dissolving the appellant's marriage with the first respondent herein that was solemnized on 29.08.2008. The first respondent herein filed I.A.No.1558 of 2022 for rejection of the plaint. The Court below vide order dated 25.07.2023 allowed the said IA and dismissed the suit by rejecting the plaint. Since the rejection of plaint would amount to a decree, this appeal has been filed.

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2.The learned counsel for the appellant reiterated all the contentions set out in the grounds of appeal and relied on the following decisions:-

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(i) 2019 SCC Online Bom 1669 (Chandrakant Pandurang Shingade Vs. Walchand Gulabchand Bora)

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(ii) (2021) 9 SCC 99 (Srihari Hanumandas Totala Vs. Hemant Vithala Kamat)

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https://www.mhc.tn.gov.in/judis

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A.S.(MD)No.243 of 2023

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(iii) 2023 Live Lad (Mad) 42 (Shanthakumari @ Shanthi Vs. Venkatasubramani)

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(iv) Mat. Appeal No.383 of 2016, dated 06.03.2019 (K.Sunil Kumar Vs. D.Prasobha Devi and Others), and

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(v) WP (227) No.919 of 2019, dated 10.08.2020 (Harsha Dewani

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Vs. Ashutosh Gupta).

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He called upon this Court to set aside the impugned order so that the appellant can have his claim adjudicated on merits.

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3.Per Contra, the learned counsel for the first respondent submitted

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that the impugned order is well reasoned and that it does not call for interference.

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4.We carefully considered the rival contentions and went through the materials on record. It is not in dispute that the appellant and the first respondent got married on 29.08.2008 as per Islamic rites and customs. It is also not in dispute that the appellant herein filed O.S.No.17 of 2020 on the file of the Family Court, Madurai. The specific allegation made by the appellant herein in the said suit was that the first respondent

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https://www.mhc.tn.gov.in/judis

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A.S.(MD)No.243 of 2023

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herein was leading an adulterous life. In fact, the first respondent had impleaded one Mohammed Ali as the second defendant in the said suit. For reasons that are not quite clear, the appellant filed a memo to the effect that he was not interested in prosecuting the suit. Hence, the suit was dismissed as withdrawn. Within two days, the present suit was laid by the appellant. The prayer as well as the cause of action remained the same. There was only one difference. Two more persons were also impleaded as defendants as the first respondent's paramours.

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5.The court below noted that as per Order 23 Rule 4 of CPC, where the plaintiff abandons any suit without getting liberty to file a fresh suit on the same cause of action, he shall be precluded from instituting any fresh suit in respect of the subject matter. It is relevant to mention that the appellant while making the endorsement for withdrawal, did not even deem it necessary to seek liberty to file a fresh suit on the same cause of action. Thus, the earlier suit filed by the appellant was dismissed without grant of any liberty.

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https://www.mhc.tn.gov.in/judis

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A.S.(MD)No.243 of 2023

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6.The subject matter of the earlier suit and the present suit are one

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and the same. The relief sought for is also one and the same. Therefore, the court below rightly invoked Order VII Rule 11 CPC and held that the present suit is not maintainable and that it is barred. We see no ground to interfere with the order passed by the court below allowing I.A.No.1552 of 2022 filed by first respondent herein. This appeal stands dismissed. No costs. Consequently, connected miscellaneous petition is closed.

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(G.R.S. J.,) & (R.P. J.,) 16.04.2026 NCC : Yes/No Index : Yes / No Internet : Yes/ No ias

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To:

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The Family Court, Madurai.

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Copy to:

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The Section Officer, ER/VR Section, Madurai Bench of Madras High Court, Madurai.

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