IMPORTANT POINT
When cause of action is of continuing and recurring nature, subsequent litigation of divorce brought on same grounds disregarding dismissal of former O.P. will not be barred by res-judicata.

ORDER

This Civil Revision Petition has been filed as against the fair and decreetal order dated 28.08.2019, passed by the learned Subordinate Judge, Udumalpet, in I.A.No.10 of 2019 in H.M.O.P.No.22 of 2018, thereby dismissing the petition filed for rejection of divorce petition on the ground of res-judicata.

2. The petitioner is the wife and the respondent is the husband. Originally, the respondent filed petition for divorce in H.M.O.P.No.875 of 2005 on the ground of cruelty as against the petitioner herein. At the same time, the petitioner also filed petition in H.M.O.P.No.77 of 2005 for restitution of conjugal rights. The Family Court allowed the petition for restitution petition and dismissed the divorce petition. Aggrieved by the same, the respondent preferred an appeal in C.M.A.Nos.46 & 45 of 2007 on the file of the Fast Track Court, Salem. The Appellate Court allowed both the appeals and granted divorce and also dismissed the restitution of conjugal rights petition. Aggrieved by the same, the petitioner herein filed Civil Miscellaneous Second Appeal before this Court in C.M.S.A.Nos.38 & 39 of 2008 respectively, and this Court reversed the findings of the first appellate Court and dismissed the divorce petition and allowed the restitution of conjugal rights petition.

3. Thereafter, on fresh cause of action and on different set of grounds viz., desertion and continuous cruelty with regard to subsequent events, the respondent filed another petition for divorce in H.M.O.P.No.22 of 2018. While pending the divorce petition, the petitioner filed the petition under Section 11 of C.P.C., to dismiss the petition on the ground of resjudicata. The Court below dismissed the said petition and as against which, the petitioner filed this present Civil Revision Petition.

4. The learned counsel appearing for the petitioner submitted that the application for divorce is clear abuse of process of law and the principle of res-judicata is clearly applies to the case on hand, since already the respondent filed divorce petition on the ground of cruelty and the same was dismissed and confirmed by this Court. Subsequently, the petitioner also filed maintenance case and the same was also allowed and directed the respondent to pay a sum of Rs.2,500/-. However, the respondent did not comply the said order passed in the maintenance case by the Court below. The respondent also lodged complaint in D.V.O.P.No.2 of 2013 on the file of the learned Judicial Magistrate No.I, Udumalaipet, and it is pending. Hence, he prayed to allow the present Civil Revision Petition.

5. The learned counsel appearing for the respondent submitted that after dismissal of the earlier divorce petition, the petitioner filed so many petitions under the Domestic Violence Act and also lodged complaint as against the respondent and his family members. Therefore, there was continuous harassment made by the petitioner and as such the respondent was constrained to file another divorce petition on the ground of continuous cruelty and also deserted for long period. Hence, the trial Court rightly dismissed the rejection petition and prayed to dismiss the petition.

6. Heard Mr.R.Nalliyappan, learned counsel appearing for the petitioner and Mr.I.Calvin Jones, learned counsel appearing for the respondent.

7. The only contention raised by the petitioner is that the second petition for divorce is hit by res-judicata, since the respondent already filed divorce petition and the same was dismissed. On a perusal of divorce petition revealed that the cause of action is different and as such the present divorce petition is very much maintainable and the principle of res-judicate is not applied. Admittedly, the respondent raised the ground of cruelty once again and filed the petition for dissolution of marriage in H.M.O.P.No.22 of 2019 on the file of the Subordinate Court, Udumalpet. Even, if same grounds are taken in the subsequent proceeding for divorce, no bar of res judicate could apply as long as