KIRTIKA MUKESH BURA Vs. JAGJIT SINGH

JUDGEMENT

(1.) THE appellant has filed an appeal under Section 19 of the Family Courts Act, 1984 to challenge the order dated 21st May 2014 passed by the Principal Judge, Family Court, South East, Saket, New Delhi, whereby the learned Family Court has dismissed the application of the appellant filed under Order 7 Rule 11 of the CPC.

(2.) ASSAILING the legality and correctness of the impugned order dated 21st May 2014, the appellant who argued the case herself, submits that the learned Principal Judge has not appreciated the true scope and meaning of Rule 1 of Order XXIII of the CPC which is in clear contravention with the principles attracting Section 11 of the CPC. Differentiating the two provisions, the appellant submits that in the case of abandonment or withdrawal of the suit in term of Order 23 Rule 1, there is no proper adjudication of a suit or issue involved and without seeking leave of the Court, the respondent is precluded from instituting any fresh suit in respect of the same subject matter while under Section 11 of the CPC, fresh suit will be hit by the principles of res judicata if the suit or an issue has been heard and finally decided by the Court of competent jurisdiction, in a former suit between the same parties. Appellant further submits that the earlier petition preferred by the respondent was unconditionally withdrawn by him and no leave was sought or taken by the respondent for filing a fresh petition and therefore such an unconditional withdrawal by the respondent precluded him from filing a fresh petition in respect of the same subject matter of the suit i.e. custody of the minor child before the Principal Judge, Family Court, South East, Saket, New Delhi. In support of her arguments, the appellant placed reliance on the judgment of the Apex Court in the case of Sarguja Transport Service vs. State Transport Appellate tribunal, M.P., Gwalior, and others, : (1987) 1 SCC 5.

(3.) WE have heard the submissions made by the learned counsel for the parties and given our conscious consideration to the arguments advanced by them.