Dear Dr. Tripathi,
Ok, thank you once again for clarity. So the best resort I can take is file an Application U/S 151 CPC in the same Court of ADJ and plead h/her to make the Order Final ? Naturally the ADJ will delay it for next date so I must press for dismissal of my own Application U/S 151 CPC so that I can Appeal before DHC using the same S. 151 CPC for direction i.e. clarity against which Order is final.
This is the best way out which is emerging out of the situation.
Well with this confusion I close this thread as the opinion here is divided equally reading answers received so far and the best is to approach DHC and get Ld. opinion least to least I will still not be a looser before it is too late and if some more seasoned members here want to answer correctly placing reliance by refering to DHC Citation or Apex Court citation then I will be more than obliged.
However please refer to Para 3 of DHC Citation below :-)
Regards, D. Arun Kumar, New Delhi, 981162 4141
---------------------
IN THE HIGH COURT OF DELHI AT NEW DELHI
SUBJECT : PETITION FOR DIVORCE
FAO 88/2004
Date of Decision : May 4th , 2006.
Smt. MALTI Appellant Through: Ms. Jyoti Singh, Adv.
Versus
RAMESH KUMAR. Respondent Through: Mr. R. K.Gupta, Adv.
SANJIV KHANNA, J:
1. The present appeal is directed against order dated 27.2.2004 passed by the learned trial Court dismissing the application of the appellant herein under Order IX Rule 9 read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as the `Code', for short). The said application was filed for dismissal of petition for divorce filed by the respondent herein before the Ld. Addl. District Judge.
2. For the disposal of the present appeal, relevant facts in brief may be noted. The respondent herein had earlier in the year 2000 had filed a petition for divorce (H.M.A. 188/2000) under Section 13(I)(i) (ia) and (ib) of the Hindu Marriage Act, 1955 against the appellant. The appellant had filed an application under Section 24 of the Hindu Marriage Act, 1955 in the aforesaid petition for grant of maintenance to herself and the minor child then aged about 3-1/2 years. By order dated 19.7.2000, the respondent was directed to pay maintenance at the rate of Rs.2,000/- per month from the date of filing of the application till 19.7.2000 besides litigation expenses of Rs.2,000/-. On the same day i.e.19.7.2000 the petition for divorce filed by the respondent, being HMA No.188/2000 titled Ramesh Kumar vs. Smt. Malti was dismissed as no one appeared for the respondent and previous costs imposed by the learned Additional District Judge was not paid and tendered. The file was accordingly directed to be consigned to the record room.
3. The respondent did not file any application for recall/setting aside of the order dated 19.7.2000 and for restoration of this petition for divorce. The said order dated 19.7.2000 has become final between the parties.
4. Thereafter, the respondent filed another petition for divorce on or about 24.9.2002 and the same was registered as HMA No.853/2002 titled Ramesh Kumar vs. Malti ne Nirmala. This petition too was under Section 13(I)(i) (ia) and (ib) of the Hindu Marriage Act, 1955. The averments made in the two petitions i.e. HMA 188/00 and 853/02, show that they are almost similar and most of the allegations in the second petition on which cause of action is based relates to the period prior to 19.7. 2000, when the first petition being HMA 188/00 was dismissed in default and for non-prosecution.
5. The question that arises for consideration is whether the second petition filed by the respondent for divorce is maintainable or is barred under Order IX Rule 9 of the Code.
6. Order IX Rule 9 of the Code reads as under:-Decree against plaintiff by default bars fresh suit.
"(1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.
(2) No order shall be made under this rule unless notice of the application has been served on the opposite party."
7. Section 21 of the Hindu Marriage Act, 1955 is also relevant for the purpose of deciding the issue. The said section reads as under:-
21. Application of Act 5 of 1908 Subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908( 5 of 1908).
8. Section 21 of the Hindu Marriage Act, 1955 makes the procedure prescribed under the Code, including its sections and orders applicable to the proceedings under the Hindu Marriage Act, 1955 unless there is provision in the said Act or under the Rules framed to the contrary. Supreme Court in the case of Guda Vijayalakshmi versus Guda Ramachandra Sekhara Sastry reported in (1981) 2 SCC 646 has held :-
"Section 21 of the Hindu Marriage Act merely provides : "subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908". In terms Section 21 does not make any distinction between procedural and substantive provisions of CPC and all that it provides is that the Code as far as may be shall apply to all proceedings under the Act and the phrase "as far as may be" means and is intended to exclude only such provisions of the Code as are or may be inconsistent with any of the provisions of the Act. It is impossible to say that such provisions of the Code as partake of the character of substantive law are excluded by implication as no such implication can be read into Section 21 and a particular provision of the Code irrespective of whether it is procedural or substantive will not apply only if it is inconsistent with any provisions of the Act. For instance, it is difficult to countenance the suggestion that the doctrine of res judicata contained in Section 11 of the Code which partakes of the character of substantive law is not branch or specie of the Rule of Estoppel called Estoppel by Record and though estoppel is often described as a rule of evidence, the whole concept is more correctly viewed as a substantive rule of law".
9. The question whether the provisions of Order IX Rule 13 would apply to the provisions of Hindu Marriage Act, 1955 has come up for consideration before High Courts including this Court. Reference in this regard may be made to Rishi Dev Anand v. Devinder Kaur, AIR 1985 Delhi 40 and Jang Bahadur Syal v. Mukta Sayal AIR 1986 Delhi 422. In both these cases after referring to Section 21 of the Hindu Marriage Act, 1955, it was held that Order IX Rule 13 of the Code applies to the proceedings under the said Act. A similar view has been taken by other High Courts in Hemraj Shamrao Umredkar v. Smt. Leela, AIR 1989 Bombay 146 and Saraswathi Ammal v. Lakshmi, AIR 1989 Madras 216.
10. Whether Order IX Rule 9 of the Code applies to proceedings under the Hindu Marriage Act, 1955 has also directly come up for consideration. The Mysore High Court in the case of Tirrukappa v. Kamalamma (DB), AIR 1966 Mysore 1, specifically examined this aspect and it was observed as under:-
"In regard to such provisions as S. 11 or R. 9 of O. 9 or sub rule (3) of Rule 1 of Order 23 of the Code of Civil Procedure, the better view to take, in our opinion, would be not to regard them as enacting any rule of substantive law but as provisions which lay down the consequence which the failure to observe certain of the provisions regulating procedure has on the substantive rights which are the subject of adjudication by civil court. Indeed we might point out that the very title given to Order 9 of the Code of Civil Procedure is "Appearance of parties and Consequences of Non-appearance". In Venkatamma v. Seethaiah, 1960- 1 Andh WR 1 a bench of the High Court of Andhra Padesh dealing with section 5(4) of the Hindu (Bigamy Prevention and Divorce) Act which states that procedure provided in the Code of Civil Procedure in regard to suits shall be followed as far as it can be made applicable in all proceedings in any petition presented under sub-section (1) or (2) thereof, applied Rule 13 of Order 9, pointing out that Order 9 which deals with appearance of parties and consequence of the non-appearance is part of the procedure applicable to trial of suits and should therefore be applied to proceedings under the said Act".
11. It was further held that the provisions of Order IX Rule 9 of the Code do not in any manner conflict with or are repugnant to any of the provisions of the Hindu Marriage Act, 1955 and therefore the provisions of Order IX, Rules 8 and 9 of the Code would be applicable to proceedings under the Hindu Marriage Act, 1955.
12. Punjab and Haryana High Court has also taken the same view in Manjit Kaur v. Gurdiyal Singh Gangabala, AIR 1978 Punjab 150. It was held that the principle behind Order IX Rule 9 of the Code is based upon well established juristic doctrine based upon equity and there is no reason why in view of Section 21 of the Hindu Marriage Act, 1955, that the said rule shall not be applied to divorce proceedings. The provisions of Order IX Rule 9 of the Code is in accord with the general principles followed by courts for generations.
13. Following these two judgments, in C. Sarala versus K. Nalina Kshan reported in AIR 1991 Kerala 362, it has been opined that the provisions of Order IX Rule 9 of the Code are applicable to the subsequent second proceedings under the Hindu Marriage Act, 1955. A similar view has also been taken in Gurcharan Singh versus Mukhtiar Kaur reported in 1(2002) DMC 747.
14. I do not think that the decision of the Supreme Court in the case of New India Assurance Company Ltd V. R. Srinivasan, 2000(3) SCC 242 can be applied to proceedings under the Hindu Marriage Act, 1955. In the said case, Supreme Court was considering whether a fresh complaint under the Consumer Protection Act, 1986 was maintainable when a similar complaint was earlier dismissed in default and an application for restoration of the same had also been dismissed. Reference in this regard was made to Section 13 of the Consumer Protection Act. Under Section 13 of the aforesaid Act only specific provisions of the Code have been made applicable to the proceedings before the forums established under the Consumer Protection Act, 1986. The Supreme Court noticed that Order IX Rule 9 of the Code has not been specifically made applicable to the proceedings under the Consumer Protection Act,1986 and therefore it was held that the bar and prohibition with regard to the maintainability of the second complaint as provided under Order IX Rule 9 of the Code would not apply. It was further held that there is no parallel provision as contained in Order IX Rule 9 of the Code, which could be made applicable to the proceedings under the Consumer Protection Act. However, as already noticed above under Section 21 of the Hindu Marriage Act, 1955, the provisions of the Code have been made applicable to proceedings under the said Act. This is a vital distinction and therefore the decision of the Supreme Court in the case of New India Assurance Company Ltd. (supra) is not be applicable to the proceedings under the Hindu Marriage Act, 1955.
15. In view of the above, the order passed by the learned trial court dismissing the application under Order IX Rule 9 of the Code on the ground that the said provision was not applicable to proceedings under the Hindu Marriage Act, 1955 cannot be sustained and is liable to be set aside. However I may add a word of caution. The order dated 19.7.2000 dismissing H.M.A. 188/2000 on the ground of non prosecution and default, will not come in the way of the respondent in establishing and proving a ground for divorce on the basis of cause of action that may/might have accrued to him after filing of the first petition for divorce i.e H.M.A.188/2000. Divorce proceedings based upon the cause of action on which first proceeding was filed is barred and not maintainable. Further, the respondent will be also at liberty to file and institute any proceedings for divorce on the basis of continuing cause of action provided the cause of action has continued after 19.7.2000, when the first petition for divorce was dismissed in default and for non prosecution.
16. With the above observations the present appeal is allowed. The appellant will be also entitled to costs, which are assessed at Rs. 5,000/-.
Sd./-SANJIV KHANNA,J
