SEEMA Vs. JOGINDER

JUDGEMENT

(1.) On wife's petition for rejection of the petition for divorce filed by the husband, the court did not pass any order. The objection by the wife was that on the same ground of divorce of alleged cruelty by the wife, three petitions had been filed one after another by the husband and he had allowed the first and the third petitions to be dismissed for default and the second petition was considered by the court as not competent, particularly, in view of the fact hat his own earlier petition, namely the first petition was dismissed for default and he had not taken step to restore the petition.

(2.) At the previous hearing on 19.3.2015, I directed the counsel appearing for the respondent to make his submissions regarding maintainability of the petition under the Hindu Marriage Act (for short 'the Act'). The counsel says that there had been no disposal of the case on merits, the respondents contention of cruelty has not been examined at any time.

(3.) Sections 19 and 20 of the Act deal with the manner of presentation of the petition and the details that a petition must contain. Section 21 declares that subject to the other provisions contained in the Act and to such rules that High Court may make in this behalf, all the proceedings shall be regulated as far as possible, by the Code of Civil Procedure. Order 9 Rule 9 and Order 9 Rule 13 of CPC have been at all times applied to the proceedings before the matrimonial court. The Order 9 Rule 9 CPC enacts an important procedure that if a suit is dismissed for default, it will bar a fresh suit on the same cause of action and the procedure shall be to make an application to restore the dismissal of the petition, if he satisfies the court that there was sufficient cause for his non-appearance on the date when the suit was pending. This provision is akin to Section 11 of the CPC which bars a person from filing the suit on the same cause of action, if it is disposed of on merits. While res-judicata is the principle applicable to cases decided on merits, the bar under Order 9 Rule 9 CPC operates when the person does not secure a decision on merits, but he chooses to remain absent and allows the suit to be dismissed for default.