ORDER :

Shree Chandrashekhar, J.

Vikram Pandey instituted MTS No. 138 of 2015 for a decree of divorce by dissolution of his marriage with Anupama Pandey solemnized on 19th 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 6th October 2016. Subsequently, by an order dated 12th 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 19th 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 19th 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.

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

4. 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 13th 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 12th 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 17th September 2016. Consequently, by an order dated 6th October 2016 the suit was dismissed for non-prosecution.

5. The order dated 6th October 2016 reads as under:

“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.”

6. 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.

7. 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 12th 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 19th January 2019, the same is extracted in full hereunder:

“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.

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 non-prosecution, vide order dated 06.10.2016 of this Court.

II. that petitioner after getting knowledge of dismissal order file an applicatio