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2021 Supreme(Ker) 776
IN THE HIGH COURT OF KERALA
A. MUHAMED MUSTAQUE, KAUSER EDAPPAGATH, JJ.
Jabeen Ihsan – Appellant
Versus
Noushima Basheer – Respondents
O.P.(FC) No.169 of 2021
Decided on : 02-07-2021
Advocate Appeared:
For the Appellant : K.M. Firoz, M. Shajna, E.C. Ahamed Fazil & P.C. Muhammed Noushiq
For the Respondent: E.A. Haris, M.A. Ahammad Saheer
The main legal point established in the judgment is that under Order XXIII Rule 1(3) of the Civil Procedure Code, a plaintiff can seek permission to withdraw from a suit with liberty to file a fresh suit in respect of the same subject matter, and the grounds for allowing such withdrawal must satisfy the conditions of the rule.
Headnote:
Order XXIII Rule 1(3) of Civil Procedure Code - Restitution of Conjugal Rights - The court analyzed the legal provision of Order XXIII Rule 1(3) of the Civil Procedure Code, which allows a plaintiff to seek permission to withdraw from a suit with liberty to file a fresh suit in respect of the same subject matter. The court emphasized that the grounds for allowing the plaintiff to institute a fresh suit must satisfy the conditions of the rule, and the subject matter of the fresh suit should be the same as that of the suit sought to be withdrawn. The court also referred to a latest judgment to support its interpretation of 'sufficient grounds' under the rule. The legal provision influenced the court's decision to dismiss the original petition, as it found that the petitioner's new claim for nullity of marriage was not the same subject matter as the original claim for restitution of conjugal rights, and there was no evidence of lack of consent for the marriage.
Fact of the Case:
The petitioner filed an Original Petition for restitution of conjugal rights, but later sought permission to withdraw the petition and file a fresh petition for nullity of marriage. The court below dismissed the application to withdraw and the review application, leading to the petitioner challenging these orders in the original petition.
Finding of the Court:
The court found that the petitioner's new claim for nullity of marriage was not the same subject matter as the original claim for restitution of conjugal rights, and there was no evidence of lack of consent for the marriage. Therefore, the court dismissed the original petition.
Issues: The issues involved the petitioner's request to withdraw the Original Petition for restitution of conjugal rights and file a fresh petition for nullity of marriage, and the court's assessment of whether the legal conditions for allowing such withdrawal were met.
Ratio Decidendi: The court's decision was based on the interpretation of Order XXIII Rule 1(3) of the Civil Procedure Code, which requires the subject matter of the fresh suit to be the same as that of the suit sought to be withdrawn, and the grounds for allowing the withdrawal to satisfy the conditions of the rule.
Final Decision: The Original Petition was dismissed by the court, upholding the orders of the court below that dismissed the petitioner's application to withdraw the Original Petition and file a fresh petition for nullity of marriage.
JUDGMENT :
Dr. Kauser Edappagath, J.
The petitioner herein challenges Exts.P4 and P6 orders passed by the Family Court, Kozhikode (“the court below” for short) in an Original Petition filed by him for restitution of conjugal rights as O.P. No.1327/2018.
2. The petitioner is the husband of the respondent. The following three matrimonial proceedings are pending between them before the court below:
(i) O.P. No.1327/2018 filed by the petitioner for restitution of conjugal rights.
(ii) O.P. No.1166/2018 filed by the respondent for dissolution of marriage.
(iii) O.P. No.1340/2018 filed by the respondent for recovery of gold ornaments and money.
3. All the above three petitions were tried jointly. The respondent gave evidence as PW1. According to the petitioner, she deposed during evidence that the marriage was solemnized without her consent, will and wish, that she was not interested in continuing with the marital relationship and that the marriage was not consummated. Thereafter, the petitioner filed Ext.P3 application before the court below seeking permission to withdraw O.P. No. 1327/2018 and to file a fresh O.P. for nullity of marriage on the ground that the marriage was held without the consent of the respondent. The court below after hearing both sides dismissed the said application as per Ext.P4 order. Aggrieved by Ext.P4 order, the petitioner preferred Ext.P5 application to review Ext.P4 order. It was also dismissed as per Ext.P6 order. Exts.P4 and P6 orders are under challenge in this original petition.
4. Heard the learned counsel for the petitioner and the learned counsel for the respondent.
5. As per Order XXIII Rule 1(3) of Civil Procedure Code (for short “the Code”), the plaintiff can seek permission to withdraw from the suit with liberty to file fresh suit in respect of the same subject matter of the suit, on any of the two grounds: (1) the suit would fail by reason of some formal defect (2) there are sufficient ground for allowing the plaintiff to institute a fresh suit in respect of the same subject matter. The court can allow the application under Order XXIII Rule 1(3) only on satisfaction of either of these conditions. The word “formal defect” appearing in Rule 1 sub-clause (3) of Order XXIII of the Code means the defect which does not affect the merits of the case whether that defect is fatal to the suit or not. There is no case for the petitioner that there is any such formal defect. The learned counsel for the petitioner submitted that there are sufficient grounds for allowing the petitioner to institute a fresh suit for the subject matter of the suit and hence the court below ought to have allowed Ext.P3 application. In support of his argument, the learned counsel has relied on a latest judgment of this court in Sabu Issac v. Antony Chacko, 2020 KHC 682. It was held therein that the expression “sufficient grounds” occurring in clause (b) of Rule 1(3) of Order XXIII of the Code is not to be read ejusdem generis with the expression “formal defect” occurring in clause (a). It was further observed that there is no requirement that “sufficient ground” pleaded by the plaintiff for seeking permission to withdraw the suit with liberty to institute fresh suit shall be analogous to a formal defect.
6. It is settled that the subject matter of the suit which is sought to be instituted afresh shall be the same as that of the suit which is sought to be withdrawn. The subject matter mentioned in clause (3) of Rule (1) includes the cause of action as well. Thus, no permission can be granted if the suit sought to be instituted is in respect of different subject matter. Sub-rule (3) is not intended to permit a plaintiff to withdraw one suit and to institute any suit as he likes. The Supreme Court in K.S.Bhoopathy & Ors. v. Kokila & Ors., AIR 2000 SC 2132) has held that fresh suit should be in respect of the same claim or part of a claim of the same subject matter. The Original Petition instituted by the petitioner was one for restitutio
