For granting permission to withdraw a petition with liberty to file a fresh petition, the court must be satisfied about the existence of a formal defect and must state the reasons for granting such permission. The party seeking to withdraw the petition must file an application under Order 23, Rule 1 and 2 of the CPC, and the court must give the opposite party an opportunity to raise objections to the withdrawal.

R.BANUMATHI, J.

1. Challenge in this appeal is the docket order dated 26.05.2010 in F.C.O.P.No.54 of 2010 on the file of Family Court, Salem permitting the Respondent to withdraw F.C.O.P.No.54 of 2010 with liberty to file fresh Petition in future with the same cause of action.

2. Marriage between the Appellant and the Respondent was solemnised on 28.05.2007 in Erode. Respondent was employed in Canada for 2= years before the marriage and he got work permit from Canadian Authorities. After the marriage, Respondent left for Canada and got the work permit extended. There was some delay in getting Visa to the Appellant and finally, Appellant went to Canada on 18.07.2008 and she is said to have stayed in Canada for about eight days and thereafter, she came back from Canada. A panchayat is said to have been convened on 09.09.2008 at Erode and that the said panchayat did not fructify. According to the Respondent, the family members of Appellant left her in the Respondent's house at Salem and therefore the parents of the Respondent left the house. Alleging that Appellant was abusing and scolding the Respondent and that she treated the Respondent with cruelty, Respondent filed Divorce Petition in H.M.O.P.No.12 of 2009 under Section 13(1)(i-a) and (iii) of Hindu Marriage Act before the Principal Sub Court, Erode.

3. Appellant filed Transfer O.P.No.263 of 2009 before the High Court. As per the order in Transfer O.P.No.263 of 2009 dated 07.12.2009, H.M.O.P.No.12 of 2009 on the file of Principal Sub Court, Erode was transferred to Family Court, Salem and re-numbered as F.C.O.P.No.54 of 2010. Appellant also filed Maintenance Petition before the Family Court, Salem in M.C.No.25 of 2009 and obtained order on 19.11.2009, as per which, the Respondent shall pay monthly maintenance of Rs.1,00,000/-to the Appellant till her life time. Subsequently, Appellant also filed Petition to execute the same.

4. In F.C.O.P.No.54 of 2010, Respondent filed Petition in I.A.No.142 of 2010 under Order 3, Rule 1 to recognise his father Chandrasekaran as his power of attorney agent and to permit the said Chandrasekaran to proceed with the case on behalf of the Respondent. The said Petition in I.A.No.142 of 2010 was allowed on 25.10.2010. Respondent filed Memo on 25.10.2010 attested by Barrister/Notary Public in Canada to withdraw the Divorce Petition with liberty to file fresh Petition in future with same cause of action. It is stated that the said order is challenged by way of Revision Petition. Immediately, on the next day of allowing I.A.No.142 of 2010, on 26.05.2010, a Memo filed by the Respondent was recorded and the Family Court, Salem passed the following order:-

"In view of the memo the petition is dismissed as not pressed with liberty to file fresh petition's for same cause of action."

5. Challenging the impugned order, Mr.P.B.Balaji, learned counsel for the Appellant contended that without proper application under Order 23, Rule 1 and 2 C.P.C., the Family Court ought not to have granted the relief of withdrawal of Divorce Petition with liberty to file fresh Petition on the same cause of action. It was further submitted that as per Order 23, Rule 1 and 2 C.P.C. read with Section 13 of Family Courts Act, the Respondent ought to have presented application in person with appropriate affidavit stating reasons for withdrawing the Petition with liberty to file fresh Petition on the same cause of action. It was further submitted that Family Court erred in allowing the prayer without assigning any reason. It was further submitted that Family Court erred in not appreciating that Appellant obtained an order of maintenance of Rs.1,00,000/-payable by the Respondent and only to avoid appearance in the maintenance proceedings, Respondent filed the Memo to withdraw the Divorce petition through the third party to the proceedings and that Family Court ought not to have entertained the same and that it amounts to abuse of process of Court.

6. Placing reliance