ARUNA SURESH, J. 1. In this petition, petitioner has challenged the order of the learned Additional District Judge dated 13th July, 2009 rejecting her application filed under Order 7 Rule 11 CPC seeking rejection of the petition.

2. Mr.Parinay D.Shah, counsel for the petitioner has argued that Trial Court went wrong in dismissing the application observing that in para-12 of the petition, petitioner has pleaded subsequent events which arose after dismissal of the first petition filed under Section 13 (1) (i-a) of the Hindu Marriage Act (hereinafter referred to as the Act?) and that the subsequent events as detailed in para-12 were not covered under Section 11 of the Code of Civil Procedure (hereinafter referred to as CPC?).

3. Mr. P. Norula, counsel appearing for the respondent has submitted that his second petition seeking divorce is maintainable as in para-12 he has narrated subsequent events which arose after dismissal of the first petition. He has emphasized on sub-para (iv), grounds f? and h? of para-12 of the petition that certain acts of cruelty were committed by the respondent even after dismissal of the first petition and therefore, this petition is maintainable. He has referred to ‘Malti Vs. Ramesh Kumar’, I (2006) DMC 878.

4. Order 7 Rule 11 CPC empowers the Court to reject a plaint on any of the grounds narrated therein. Some of the grounds are that, where plaint does not disclose a cause of action or, where the suit appears from the statement in the plaint to be barred by any law. Though a plea of res judicata under Section 11 CPC has been raised by the petitioner, however, principles of res judicata contained therein are not applicable to the facts and circumstances of this case.

5. Respondent had filed a petition for decree for divorce under Section 13(1)(i-a) of the Act. In the said petition, petitioner had moved an application under Section 24 of the Act seeking interim maintenance. Trial Court vide its order dated 24th August, 2002 awarded maintenance of Rs.20,000/- per month to the petitioner and her two children along with litigation expenses of Rs.20,000/-. Subsequently, this order was modified on 29th January, 2003 reducing the quantum of maintenance to Rs.13,000/- per month and the arrears of maintenance payable were also reduced from 50% to 25%. Despite this order, respondent failed to pay the maintenance as awarded and also did not clear the arrears of maintenance. Thereafter, he did not appear in the court to contest the petition and it was dismissed in default on 7th July, 2003.

6. Subsequently, on 21st July 2003, respondent filed an application under Order 9 Rule 9 CPC seeking restoration of the petition. The said application was allowed by the Trial Court subject to the condition that respondent would comply with the order of payment of maintenance. Since respondent failed to comply with the condition imposed upon him while allowing his application under Order 9 Rule 9 CPC, Trial Court, vide its order dated 31st January 2004, dismissed the application observing:-

"Petitioner has failed to comply with the conditions subject to which petitioner?s application u/o 9 r 9 CPC was allowed despite last opportunity being granted on the last date of hearing. In view of the above, petitioner?s application is dismissed."

7. This order was never challenged by the respondent and it attained finality.

8. After about four years of dismissal of the first petition, respondent filed another petition under Section 13(1)(i-a) of the Act in December, 2007 averring same grounds of cruelty which were alleged by him in his first petition filed on 27th May, 1998. In view of dismissal of the first petition, petitioner filed an application under Order 7 Rule 11 CPC seeking rejection/dismissal of the petition as barred by res judicata.

9. As discussed above, principles of res judicata do not strictly apply to the facts and circumstances of this case. Since petition was not dismissed by the court on merits, therefore, r