Item Nos.- 6-7 19.05.2025 Rohan Court No. 4 In the High Court at Calcutta Civil Appellate Jurisdiction Appellate Side FA 127 of 2023 Sandip Kumar Kundu Versus Anupa Kundu with CO 3629 of 2023 Sandip Kumar Kundu Versus Anupa Kundu (ASSIGNED)

Mr. Probal Kr. Mukherjee, Sr. Adv, Mr. Avirup Mondal, Mrs. Ahana Ghosh Mondal, Mr. Debdipta Sen.

… for the appellant Mr. Saumyen Datta, Mr. Subrata Bhattacharya, Ms. Rusha Mukherjee.

… for the respondent

1. The present appeal has been initiated assailing the order and judgment dated 29^th May, 2023 passed by the learned Additional District Judge, 12^th Court, Alipore, whereby, the learned Judge has been pleased to dismiss the suit on contest without cost.

2. The present lis involves matrimonial dispute.

3. The husband had earlier initiated a Matrimonial Suit being No. 1162 of 2011 before the Ld. District Judge at Alipore which was eventually dismissed.

4. Thereafter the husband once again filed a fresh matrimonial suit which has also been dismissed through the impugned judgment which is the bone of contention in this present appeal.

5. The learned counsel representing the appellant/husband submits that the dismissal of the earlier matrimonial suit being Mat Suit No. 1162 of 2011 was under Order IX Rule 3 of the Code of Civil Procedure, 1908 and being dismissed under Order IX Rule 3, the appellant/ husband had the choice to apply for restoration subject to limitation or had the liberty to file a fresh suit. Taking the second option, the appellant/husband preferred to file a fresh suit, as, there is no bar to prefer a fresh suit under Order IX Rule 4 of the said Code. As such the impugned judgment is not in accordance with law.

6. He further submits that in the earlier matrimonial suit the respondent/wife had not appeared and the petitioner husband was initially directed to show cause as none had represented him and eventually on the very next date as neither anybody had represented the husband nor any cause was shown and filed so the Ld. Court has eventually dismissed the suit for non- appearance. This being the scenario that ultimately the suit was dismissed and that being for non-appearance and there being non-representation of either of the parties so the earlier suit had been dismissed under Order IX Rule 3 of the said Code.

7. In support of his contention, the learned counsel has referred a judgment of the Hon’ble Apex Court passed in the case of Amiruddin Ansari (Dead) Through Lrs and others vs. Afajal Ali and others reported in 2025 SCC OnLine SC 912 and has relied upon paragraph 21 of the said judgment.

8. Per contra the learned counsel representing the respondent has placed that the appellant was barred from initiating a fresh suit seeking dissolution of the marriage when the earlier application seeking dissolution of marriage was dismissed and in addition to that, the appellant/husband had not revealed before the Trial Court as regards to the dismissal of the earlier matrimonial suit. Thus, the learned counsel representing the respondent/wife raised the issue that the appellant/husband was barred from initiating a fresh application seeking dissolution of the marriage under Order IX Rule 9 of the Code of Civil Procedure, 1908 as because the earlier matrimonial suit has been dismissed under Order IX Rule 8 of the said Code.

9. In support of his contention, the learned counsel has mentioned that non-revealing of the earlier suit being dismissed by the Trial Court in the later suit estops the said husband from filing the second suit seeking divorce. He further submits that filing of the second suit in the circumstances would invite fatal consequence.

10. On perusal of the impugned judgment, it transpires that the learned Trial Court has relied upon a judgment published in 1969 AIR SC 971 and has stated that the dismissal of the earlier application seeking dissolution of the marriage was under Order IX Rule 8 of the Code of Civil Procedure, 1908 and as such, Order IX Rule 9 comes into effect which pr