Praise Mon vs Rinu Jose,

Type Court Judgment Court Kerala Decided Apr 07, 2021

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https://sooperkanoon.com/case/1609987

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Citation: sooperkanoon.com/1609987
Court: Kerala High Court
Judge: Honourable Mr. Justice a.Muhamed Mustaque,Honourable Dr. Justice Kauser Edappagath
Decided On: Apr 07, 2021
Case Number: OP (FC)/142/2021

Parties & Advocates

Appellant / Petitioner

Praise Mon

Respondent

Rinu Jose,

Excerpt

.....m e n tdated this the 7th day of april, 2021dr.kauser edappagath, j.ext.p7 order passed by the court below dismissing a petition (ext.p6) filed by the petitioner seeking to withdraw the original petition with liberty to file fresh petition invoking order xxiii rule 3 of cpc is under challenge in this original petition.2. the petitioner and the respondent are husband andwife. the petitioner filed original petition seeking divorce before the court below on the ground of cruelty. the respondent entered appearance and filed counter statement. during the pendency of the original petition, the petitioner preferred ext.p6 petition before the court below seeking to withdraw the original petition with liberty to file a fresh petition. it was alleged that since the institution of the original petition in 2017, there has been change of circumstances and that further cause of action has arisen. the respondent opposed the said petition. the court below after hearing both sides passed the impugned order dismissing thepetition. the said order has been challenged in this original -:3:- petition.3. we heard both sides.4. the dissolution of marriage has been sought on the ground of cruelty. the various acts of cruelties have been statedin the original petition. it is specifically alleged that the respondent left the matrimonial home on 5/7/2016 and thereafter she did not come back. the original petition was filed before the court below in the year 2017. according to the petitioner, even after a lapse of four and a half years, the respondent did not return to the matrimonial home and this will amount to desertion attracting s.10(ix) of the indian divorce act. the petitioner wants to seek divorce on the said ground as well. it is also alleged that the petitioner has failed to incorporate some pleadings with regard to cruelty in the original petition. it was in these circumstances the petition has been filed to withdraw the original petition with liberty to file a fresh petition in.....

Full Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE & THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH WEDNESDAY, THE 07TH DAY OF APRIL 2021 / 17TH CHAITHRA, 1943 OP (FC).No.142 OF 2021 AGAINST THE ORDER IN IA 1/2021 IN OP 120/2018 DATED 28-01-2021 OF FAMILY COURT, KALPETTA, WAYANAD PETITIONER/PETITIONER: PRAISE MON AGED 35 YEARS S/O. PAILY, PULIKKAL HOUSE, RAJAKUMARI POST, UDUMBANCHOLA, IDUKKI. BY ADVS. SRI.JIKKU SEBAN GEORGE SMT.DEEPTI SUSAN GEORGE SHRI.P.D.SAJI RESPONDENT/RESPONDENT: RINU JOSE, W/O. PRAISE MON, MANKUDI HOUSE, BOOTHANAM COLONY, PULPALLY, WAYANAD DISTRICT - 673579. R1 BY ADV. SRI.P.MOHAMED SABAH R1 BY ADV. SMT.SAIPOOJA THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 7-042021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -:2:-

J U D G M E N T

Dated this the 7th day of April, 2021

Dr.Kauser Edappagath, J.

Ext.P7 order passed by the court below dismissing a petition (Ext.P6) filed by the petitioner seeking to withdraw the Original Petition with liberty to file fresh petition invoking Order XXIII Rule 3 of CPC is under challenge in this original petition.

2. The petitioner and the respondent are husband and

wife. The petitioner filed original petition seeking divorce before the court below on the ground of cruelty. The respondent entered appearance and filed counter statement. During the pendency of the original petition, the petitioner preferred Ext.P6 petition before the court below seeking to withdraw the original petition with liberty to file a fresh petition. It was alleged that since the institution of the original petition in 2017, there has been change of circumstances and that further cause of action has arisen. The respondent opposed the said petition. The court below after hearing both sides passed the impugned order dismissing the

petition. The said order has been challenged in this original -:3:- petition.

3. We heard both sides.

4. The dissolution of marriage has been sought on the ground of cruelty. The various acts of cruelties have been stated

in the original petition. It is specifically alleged that the respondent left the matrimonial home on 5/7/2016 and thereafter she did not come back. The original petition was filed before the court below in the year 2017. According to the petitioner, even after a lapse of four and a half years, the respondent did not return to the matrimonial home and this will amount to desertion attracting S.10(ix) of the Indian Divorce Act. The petitioner wants to seek divorce on the said ground as well. It is also alleged that the petitioner has failed to incorporate some pleadings with regard to cruelty in the original petition. It was in these circumstances the petition has been filed to withdraw the original petition with liberty to file a fresh petition in respect to the same subject matter. As per Order XXIII Rule 3 of CPC, permission can be granted to withdraw the suit with liberty to institute a fresh suit for the same subject matter if the court is satisfied that the suit must fail by the reason of some formal defect or that there

-:4:-

are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of the suit or part of the claim. It is specifically averred that even after the institution of the original petition, the desertion continued. No prejudice will be caused if the permission sought for is granted. The petitioner wants to file a fresh original petition on the same subject matter and not on entirely different allegations. Considering all these aspects, we hold that the court below ought to have granted the permission sought for. The court below committed illegality in not granting permission to the petitioner to withdraw the original petition with liberty to institute a fresh original petition on the same subject matter. Hence, Ext.P7 is liable to be set aside.

In the result, original petition is allowed. Ext.P7 is set aside. Ext.P6 stands allowed. Sd/- A.MUHAMED MUSTAQUE JUDGE Sd/- DR. KAUSER EDAPPAGATH Rp JUDGE -:5:- APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1           TRUE COPY OF THE JUDGMENT IN WP(CRL)
EXHIBIT P2           TRUE COPY OF THE JUDGMENT IN TR.P.C NO.
EXHIBIT P3           TRUE COPY OF THE ORDER        IN   RP(FC)
EXHIBIT P4           TRUE COPY OF INTERIM ORDER IN RP(FC)
EXHIBIT P5           TRUE COPY OF THE A DIARY AS OBTAINED

FROM THE E COURTS- OFFICIAL WEBSITE OF THE DISTRICT COURT. EXHIBIT P6 CERTIFIED COPY OF THE INTERLOCUTORY APPLICATION, I.A NO.1/2021 DATED 23.11.2020. EXHIBIT P7 CERTIFIED COPY OF THE ORDER DATED 28.01.2021 IN IA NO.1/2021 IN OP

Same Court & Year Kerala · 2021 Same Parties Praise Mon vs Rinu Jose, Same Judge Honourable Mr. Justice a.Muhamed Mustaque,Honourable Dr. Just...