The withdrawal of a suit without permission precludes the filing of a subsequent suit on the same issue.

JUDGMENT :

Hirdesh, J.

The present first appeal u/S 19(4) of the Family Courts Act has been filed assailing the order dated 08.04.2024 passed by Additional Judge to the Court of Principal Judge, Family Court, Gwalior in Case No.378-A/2022 (HM Act), whereby the application filed by appellant under Order 7 Rule 11 r/w Section 151 of CPC has been rejected.

(2) Briefly stated facts are that respondent on 19-08-2020 had filed an application under Section 12 of the HM Act for declaration of marriage as null and void on the ground that the appellant has fraudulently married to her. The Family Court framed issues and the case filed under Section 12 of HM Act was listed for recording of evidence of respondent on 05-02-2022, but respondent did not present on the same date and thereafter, case was listed on 26-04-2022. On that date, respondent appeared before the Family Court along with her counsel and filed an application to withdraw the suit as she does not want to pursue the suit, therefore, on 04-05-2022, respondent expressed that she does not want to pursue the case, hence, sought withdrawal of the same without any liberty in National Lok Adalat.

(3) Thereafter, on 29-03-2022 respondent filed an application under Section 13 of the HM Act seeking a decree of divorce on the ground of ''cruelty and desertion'' and for dissolution of marriage including the fact that appellant deceived her and fraudulently got married on 08-11-2019 without her free consent at Mool Shankar, Arya Samaj Vedic Sanstha, Pawansut Colony, Hurawali, Morar, Gwalior. During pendency of divorce application, on 08-02- 2024, appellant after service of notice appeared before the Family Court and filed an application under Order 7 Rule 11 read with Section 151 of CPC. Respondent filed her reply to such application. After hearing learned Counsel for the parties, the application was rejected by the Family Court vide impugned order. Hence, this appeal.

(4) It is contended on behalf of appellant that earlier suit was filed by respondent under Section 12 of the HM Act seeking marriage as null and void on the ground that marriage was performed with her by means of fraud and the same was dismissed as withdrawn by respondent without seeking any liberty. Again, on the same set of facts, respondent filed subsequent suit seeking a decree of divorce under Section 13 (1) of the HM Act in addition to the ground of cruelty and desertion. The trial Court has committed an error in passing the impugned order, rejecting application of appellant filed under Order 7 Rule 11 read with Section 151 of CPC holding that grounds raised in the application can be decided during the course of recording of evidence although the subsequent suit was not maintainable before the Family Court because of the fact the earlier suit on the same set of facts, is barred by principle of res judicata. It is further contended that the pleadings of respondent show that due to interference of parents, the respondent is compelling her to break down marriage and has filed divorce application on the basis of false grounds of cruelty and desertion although respondent has already expressed her willingness while withdrawing her application under Section 12 of the HM Act to reside with him as wife. Hence, prayed for set aside the impugned order.

(5) Despite issuance of various notices, respondent is not appearing before the Court. Vide order dated 7^th of January, 2025, the appellant was directed to serve respondent through Court below and affidavit be filed in this regard regarding its service. Appellant in compliance of order of this Court, filed an affidavit stating that the Court summons as well as a memo of appeal has been served as Dasti on 23-02-2024 upon counsel for respondent, who has given acknowledgment. On 7^th of May, 2025, Shri Dharmendra Dwivedi, who was appearing on behalf of respondent, pleaded no instructions in the matter and submitted that he is not appearing for respondent. Today, neither respondent nor her c