Madras High Court
Dr. G.Sankara Vadivoo vs S.Palavannam on 3 April, 2013
Equivalent citations: AIR 2013 MADRAS 181, (2014) 1 DMC 359, (2015) 1 MARRILJ 372, (2014) 1 CIVILCOURTC 742, (2013) 3 MAD LW 330, (2013) 129 ALLINDCAS 789 (MAD)
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 03.04.2013 CORAM THE HONOURABLE MR.JUSTICE S.NAGAMUTHU Civil Revision Petition (PD) No.1427 of 2013 & M.P.No.1 of 2013 Dr. G.Sankara Vadivoo, W/o.S.Palvannam .. Petitioner Vs. S.Palavannam S.o. Late. P.Sankaralingam Pillai .. Respondent Prayer: Civil Revision Petition filed under Article 227 of the Constitution of India, to struck off the petition filed under Section 13 (1) (i-a) of The Hindu Marriage Act, 1955, in HMOP No.500 of 2012 pending on the file of the Sub Court, Tambaram. For Petitioner : Mr. M.N.S.Md Habeeb Raja - - - O R D E R
The petitioner is the wife of the respondent. The respondent has filed HMOP No.500 of 2012 on the file of the learned Subordinate Judge, Tambaram, under Section 13(1)(ia) of The Hindu Marriage Act, 1955, (Act No.25 of 1955) (hereinafter will be referred to as "the Act"), seeking divorce. The petitioner has now come up with this petition, under Article 227 of the Constitution of India, seeking to quash the entire proceedings, alleging that the said HMOP is a clear abuse of process of Court.
2. This Civil Revision Petition has come up today for admission. I have heard the learned counsel for the petitioner and I have also perused the records carefully.
3. The facts leading to this revision are as follows:-
The marriage between the petitioner and the respondent was celebrated on 02.09.1996, as per the Hindu Rites and Customs, at Hotel Ariyas in Tirunelveli. After the marriage, the petitioner and the respondent lived together, as husband and wife, at various places, such as Sayalkudi, Pondicherry, Cuddalore, Hosur and finally at Radha Nagar, Medavakkam, Chennai 100. Out of the said wedlock, they have got two children also. Subsequently, there arose some misunderstanding between the parties. The respondent had made lot of allegations against the petitioner. Alleging that the conduct of the petitioner herein amounts to cruelty, both physical and mental, the respondent has filed a case in HMOP No.1359 of 2011 before the III Additional Family Court at Chennai under Section 13 (1) (ia) of the Act, seeking divorce. When the said petition came up for hearing before the III Additional Principal Judge, Family Court at Chennai, on 11.08.2011, the petitioner and the respondent herein made a joint endorsement seeking withdrawal of the said petition. Recording the said joint endorsement made by both parties, the Family Court, by passing the following order, dismissed the said petition:-
"Petitioner/husband present. Respondent/wife present. As per endorsement made for reunion and for withdrawal of the petition, Petition Dismissed as withdrawn".
4. Subsequently, it appears that they lived together for some more time. Again, the respondent herein filed yet another case for divorce in HMOP No.524 of 2012 before the Principal Family Court, Chennai, under Section 13 (1) (ia) of the Act. According to the petitioner herein, the said HMOP was filed on the very same set of allegations made earlier in HMOP No.1359 of 2011. When HMOP No.524 of 2012 came up for hearing before the Principal Family Court at Chennai, on 25.05.2012, again a joint endorsement was made by both the parties, not pressing the petition as they wanted to live jointly. Recording the said joint endorsement, the Principal Family Court, Chennai, dismissed the said petition as not pressed by passing the following order:-
"2. Both present. In view of the joint endorsement and in view of the joint living, the petition is dismissed as not pressed."
5. It appears that after the said order, the petitioner and the respondent lived together for some more time. Now, once again, the respondent has filed the present HMOP No.500 of 2012 before the learned Sub Court, Tambaram, under Section 13 (1) (ia) of the Act. According to the petitioner, the present petition has been filed on the very same set of allegations upon which the earlier two petitions were filed and withdrawn. It is, this case, namely, HMOP No.500 of 2012, which the petitioner wants to quash.
6. Reiterating the grounds raised in the petition, the learned counsel for the petitioner would raise the following grounds:-
(i) In HMOP Nos.1359 of 2011 and 524 of 2012, there were no petitions filed under Order 23 Rule 1 of the Code of Civil Procedure (in short "the CPC") and therefore, there was no order passed by the Family Court, giving liberty to the respondent herein to file a fresh case on the very same cause of action. The absence of said liberty granted by the Court on earlier occasions under Order 23 Rule 1 CPC, according to the learned counsel for the petitioner, is a bar for the respondent to file the present case.
(ii) The present HMOP has been filed on the very same set of allegations, which were made earlier and therefore, the present case is a clear abuse of process of Court, as the orders of the Family Court, dismissing the earlier two applications is a clear bar for instituting the present case.
(iii) In the present case, the respondent has averred that he condoned the activities of the petitioner and therefore, he is precluded from raising the very same grounds in the present HMOP, as there is no substantive cause of action after the dismissal of the earlier two petitions. In other words, according to the learned counsel, after the dismissal of the above two HMOPs, there was no fresh cause of action and therefore, the present petition is a clear abuse of process of Court.
(iv) In the present HMOP, the respondent has made lot of unsubstantiated allegations, thereby putting the modesty of the petitioner to peril. This, according to the learned counsel, again amounts to clear abuse of process of Court.
(v) The respondent earlier filed two HMOPs before the Family Court at Chennai, whereas, he has chosen to file the present HMOP at Sub Court, Tambaram, which itself would go to show that an attempt has been made by the respondent to abuse the process of Court.
(vi) Allowing the proceedings before the lower Court to continue will amount to clear abuse of process of Court, resulting in wastage of valuable time of the Court and also putting the modesty of the petitioner in peril.
7. For the above grounds, according to the learned counsel for the petitioner, the proceedings of the lower Court is liable to be quashed.
8. Admittedly in the earlier two HMOPs filed for divorce, under Section 13 (1) (ia) of the Act, number of allegations were made against the petitioner herein. But the fact remains that the respondent herein did not abandon the cases nor did he withdraw the cases thereby giving up his right to sue. Admittedly, both the petitions were dismissed as not pressed, because of the joint endorsement made by both parties, informing the Court that they had re-united and were living together as husband and wife. When there was resumption of cohabitation, the Family Court had no option but to dismiss the petition, accepting the joint endorsement made by the parties, having regard to the larger interest of the marital relationship between the parties. Therefore, the dismissal of the HMOPs on the earlier occasions by the Family Court, Chennai, shall not be a bar for filing a fresh case by the respondent on the same set of allegations.
9. In this regard, we may usefully refer to the judgement of the Honble Supreme Court in Sarguja Transport Service v. State Transport Appellate Tribunal, Gwalior, AIR 1987 SC 88 wherein the Honble Supreme Court, while dealing with the Order 23, Rule 1 of CPC has underlined the public policy upon which the above rule was founded. In paragraph 7 of the said judgment, the Honble Supreme Court has held as follows:-
7. The Code as it now stands thus makes a distinction between 'abandonment' of a suit and 'withdrawal' from a suit with permission to file a fresh suit. It provides that where the plaintiff abandons a suit or withdraws from a suit without the permission, referred to in sub-rule (3) of rule 1 of Order XXIII of the Code, he shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. 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. Invito beneficium non datur. The law confers upon a man no rights or benefits which he does not desire. Whoever waives, abandons or disclaims a right will loose it. In order to prevent a litigant from abusing the process of the Court by instituting suits 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 file a fresh suit after establishing either of the two grounds mentioned in sub-rule (3) of rule 1 of Order XXIII. The principle underlying the above rule is rounded on public policy, but it is not the same as the rule of res judicata contained in section 11 of the Code which provides that no court shall try any suit or issue in which the matter directly or substantially in issue has been directly or substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. The rule of res judicata applies to a case where the suit or an issue has already been heard and finally decided by a Court. In the case of abandonment or withdrawal of a suit without the permission of the Court to file a fresh suit, there is no prior adjudication of a suit or an issue is involved, yet the Code provides, as stated earlier, that a second suit will not lie in sub-rule (4) of rule 1 of Order XXIII of the Code when the first suit is withdrawn without the permission referred to in sub-rule (3) in order to prevent the abuse of the process of the Court. As it has been highlighted by the Honble Supreme Court, the object behind Order 23 , Rule 1 of CPC is only to prevent a litigant from abusing the process of the court by instituting the proceedings again and again on the same cause of action without any good reason. In case on hand, it is not as though the petitioner has filed the present original petition for divorce by simply abandoning the two earlier original petitions filed for divorce. As we have noticed earlier, the two original petitions were not pressed because the respondent/wife made a joint endorsement with the petitioner that she would join the petitioner to continue the marital life. Therefore, it cannot be stated at any stretch of imagination that the petitioner is making an attempt to abuse the process of the court by filing the present third round of litigation.
10. In a similar situation, the Rajasthan High Court in Smt. Leela Devi v. Suresh Kumar, AIR 1994 Rajasthan 128, has also taken the very same view. In para 12 the Rajasthan High Court has held as follows:-
12. The withdrawal of the previous petition moved under Section 13 of the Act did not debar Suresh Kumar to move fresh petition with additional grounds. Admittedly, the husband withdrew his previous divorce petition and also petition moved for the custody of his minor son and the wife Leela Devi also withdrew her application moved under Section 125, Cr.P.C. She also admits that she gave the note Ex. 1 stating that she would start living with her husband soon after the cases filed against her are withdrawn. Admittedly, she did not thereafter live with Suresh Kumar for a single day. This gave rise to fresh cause of action to Suresh Kumar. This was not the subject matter of the first divorce petition. The provisions of Order 23, Rule 1(4), C.P.C. precludes the institution of a fresh petition in respect of the same subject matter which has been in the previous petition.
11. In view of the above settled position, I hold that though earlier two HMOPs were not withdrawn in terms of Order 23 , Rule 1 of CPC by getting permission from the court to file a fresh case, it is not a bar to maintain the present HMOP for divorce on the very same grounds and on the other grounds, if any.
12. The learned counsel for the petitioner relied upon the judgments of the Hon'ble Supreme Court in the cases of Rathinavel Chettiar v. V.Sivaraman, reported in 1999 (II) CTC 593 and K.S.Bhoopathy v. Kokila, reported in (2000) 5 SCC 458 to substantiate his contention that under Order 23 Rule 1(3) CPC permission to withdraw suit with leave to file a fresh suit should not be given by a Court in a mechanical manner. It is also stated by the Hon'ble Supreme Court that in the absence of any order made under Order 23 Rule 1 CPC, giving liberty to file a fresh suit on the very same cause of action, a fresh suit cannot be maintained. Regarding the aforesaid legal proposition, there can be no second opinion at all. But this legal position has got no application to the facts of this case for the reasons, which I have already discussed.
13. The learned counsel nextly relied upon a judgment of this Court in the case of Ranipet Municipality v. M.Shansheerkhan, reported in 1998 (I) CTC 66. That is also a case relating to a civil suit where on the very same cause of action number of suits were filed; the last such litigation was quashed by this Court, by invoking its power of superintendence under Article 227 of the Constitution of India. In my considered opinion, the principles stated in the said case have got no application to the present case at all. As I have already stated, here, the marital tie is sought to be un-tied by the respondent by making certain allegations in terms of Section 13 (1) (ia) of the Act and as I have already pointed out, for filing such a case, order 23 Rule 1 CPC is not at all a bar in view of the fact that those petitions were dismissed as not pressed on joint endorsement made by the parties. Therefore, this judgment will not in any manner go to the rescue of the petitioner.
14. Nextly the learned counsel for the petitioner contended that in the present HMOP itself the respondent has averred that he condoned the activities of the petitioner herein. According to the learned counsel for the petitioner, when there is such condonotion of activities of the petitioner herein, there is no substantive cause of action for filing the fresh case. In this argument also, I do not find any substance. Here, the condonation means excusing the wife in the larger interest of the family that too for the purpose of reunion. It cannot be, therefore, stated that the allegations were once for all condoned and the same would not survive any more to enable the respondent herein to raise it for the purpose of filing the fresh case.
15. The learned counsel for the petitioner then contended that the earlier cases were filed before the Family Court at Chennai, whereas the present case has been filed before the Sub Court, Tambaram, which according to the learned counsel, is a clear abuse of process of Court. For a movement, I have to state that it is not the case of the petitioner at all that the Subordinate Court, Tambaram, has no territorial jurisdiction. In the present HMOP, it has been averred that, lastly the petitioner and the respondent resided at Medavakkam, which falls within the jurisdiction of Subordinate Court, Tambaram. When more than one Court has got jurisdiction, it is always open for a party to chose any one Court to file the case. Therefore, simply because the respondent has chosen to file the present case before the Sub Court, Tambram, it cannot be stated that it is an abuse of process of Court.
16. Lastly the learned counsel for the petitioner contended that by filing the present HMOP, the respondent has put the modesty of the petitioner in peril by making unsubstantiated allegations. In my considered opinion, to entertain a petition for divorce, it is suffice that if the petition contains allegations in terms of Section 13 (1) (ia) of the Act. Whether the allegations are true and whether they stand substantiated or not, are all matters to be gone into only at the time of trial of the case. At this preliminary stage itself, this Court cannot rush to a conclusion that these allegations are not true.
17. Before parting with this order, I would like to state that the power of this Court under Article 227 of the Constitution of India cannot be equated to the powers of the appellate Court or that of the revisional Court. This is an extraordinary power of superintendence conferred on this Court by the Constitution of India to pass orders to meet the ends of justice or to avoid abuse of process of Court. While exercising the said power, this Court cannot go into the disputed questions of fact. Equally, when there are certain allegations, which satisfy the legal requirements of a pleading, it is not at all possible for this Court to appreciate the same as though it is a Court of appeal or court of original jurisdiction to decide the issues. In such view of the matter, I do not find any ground at all in this petition to invoke the extraordinary jurisdiction of this Court under Article 227 of the Constitution of India to quash the proceedings.
18. In the result, this Civil Revision Petition fails and the same is accordingly dismissed. No costs. Consequently the connected MP is closed.
Index:Yes/No 03.04.2013 Internet:Yes/No srk To
1. Sub Court, Tambaram S.NAGAMUTHU, J., srk CRP (PD) No.1427 of 2013 & M.P.No.1 of 2013 03.04.2013