Hon’ble Amitava Lala, J.—This appeal has been preferred by plaintiff/appellant against defendant/respondent upon notice. Both the learned Counsel argued at length before this Court. No other party is available, therefore, we wanted to go into merits of the appeal at the very beginning. We find the appeal arising out of dismissal of the suit under Section 9 of Hindu Marriage Act, 1955 which was dismissed under Order VII, Rule 11 of Code of Civil Procedure, 1908 (hereinafter referred to as C.P.C.).

2. The contention of the plaintiff/appellant is that whether the marriage was at all solemnized or not, is a mixed question of law and fact, therefore, there is no scope for dismissal of the suit at the threshold under Order VII, Rule 11, C.P.C. Twice chances were given to the defendant/respondent to file written statement but she failed to file the same and the suit has been decided against the plaintiff/appellant.

3. The defendant/respondent has taken a plea that an earlier suit was dismissed for default and the recalling application was also dismissed but the plaintiff/appellant has suppressed such fact. No marriage was solemnized. The suit is frivolous in nature and was filed only to harass the defendant/respondent. Such type of suits should not be delayed in hearing. Entire career of the girl is involved. Therefore, the suit has been rightly dismissed by the Family Court.

4. According to us, dismissal of the earlier suit for default/non-prosecution cannot operate as res judicata. At the same time it is correct to say that a contesting party should not suppress any fact before the Court of law.

5. It appears to us that at the time of dismissal of the present suit cost was also awarded for a sum of Rs. 50,000/-. We have asked both the learned Counsel for the parties as to whether or not, is there any chance for conciliation between themselves, as we believe family law is no law and last opportunity be always given to the contesting parties to arrive at a settlement either through Court or mediation centre. But we find that learned Counsel for the defendant/respondent is not ready and willing for such settlement because girl’s own case is that no marriage was solemnized. The boy was private tutor of the girl. There is age difference. Attraction, if any, on the part of the boy is unilateral.

6. We find that the Family Court has adopted a procedure under Order VII Rule 11, C.P.C. in rejecting the plaint. Rule 11 is applicable only on the following grounds :

“11. Rejection of plaint.—The plaint shall be rejected in the following cases :

(a) where it does not disclose a cause of action;

(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;

(c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;

(d) where the suit appears from the statement in the plaint to be barred by any law;

(e) where it is not filed in duplicate;

(f) where the plaintiff fails to comply with the provisions of Rule 9 :

Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-papers, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.”

7. According to us, save and except clause (a) of the above Rule others are totally inapplicable from the fact of it. Even applicability of such clause (a) is to be applied carefully. It is to be tested whether suit is absolutely misconceived from the face of it or a pure qu