Seema vs Joginder

CR No. 3481 of 2013 1

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

CR No. 3481 of 2013 (O&M) Date of decision: March 23, 2015

Smt. Seema ...Petitioner Versus Joginder ...Respondent

CORAM:- HON'BLE MR. JUSTICE K. KANNAN

1. Whether Reporters of local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest?

Present: Mr. Abhishek Yadav, Advocate, for the petitioner.

Mr. Atul Yadav, Advocate, for the respondent.

K. KANNAN, J. (Oral)

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 PREM SINGH 2015.03.27 11:48 I attest to the accuracy and integrity of this document CR No. 3481 of 2013 2

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.

The only remedy of a person whose action is dismissed for non-prosecution

shall be to file restoration of his petition and cannot vex the court with a

fresh petition. The petitioner has allowed himself the benefit of three

petitions coming one after another without learning the lesson of how the

only remedy that he had, he had let go the opportunity for restoration. The

petition cannot be prosecuted.

4. In exercise of power under Article 227 of the Constitution of PREM SINGH 2015.03.27 11:48 I attest to the accuracy and integrity of this document CR No. 3481 of 2013 3

India, I quash the institution of the petition filed by the husband and order

the same to be removed as not maintainable.

5. Civil revision is allowed, but on different grounds that go as far

as to dismiss the petition filed by the husband summarily.

March 23, 2015 (K.KANNAN) prem JUDGE

PREM SINGH 2015.03.27 11:48 I attest to the accuracy and integrity of this document