Can plaintiff withdraw one suit and institute any suit as he likes?


OP (FC) NO. 169 OF 2021; 2 JULY 2021
Against the Order in IA 1297/2020 and IA No. 1/2021 in OP 1327/2018 of Family Court, Kozhikode

Jabeen Ihsan


Noushima Basheer

Petitioner : By Advs. K. M. Firoz M. Shajna E. C. Ahamed Fazil P. C. Muhammed Noushiq; Respondent By Advs. E. A. Haris M. A. Ahammad Saheer


Dr. Kauser Edappagath, J.

The petitioner herein challenges Exts.P4 and P6 orders passed by the Family Court, Kozhikode (“the court below” for short) in an original petition filed by him for restitution of conjugal rights as OP No.1327/2018.

2. The petitioner is the husband of the respondent. The following three matrimonial proceedings are pending between them before the court below:

(i) OP No.1327/2018 filed by the petitioner for restitution of conjugal rights.

(ii) OP No.1166/2018 filed by the respondent for dissolution of marriage.

(iii) OP No.1340/2018 filed by the respondent for recovery of gold ornaments and money.

3. All the above three petitions were tried jointly. The respondent gave evidence as PW1. According to the petitioner, she deposed during evidence that the marriage was solemnized without her consent, will and wish, that she was not interested in continuing with the marital relationship and that the marriage was not consummated. Thereafter, the petitioner filed Ext.P3 application before the court below seeking permission to withdraw OP No. 1327/2018 and to file a fresh OP for nullity of marriage on the ground that the marriage was held without the consent of the respondent. The court below after hearing both sides dismissed the said application as per Ext.P4 order. Aggrieved by Ext.P4 order, the petitioner preferred Ext.P5 application to review Ext.P4 order. It was also dismissed as per Ext.P6 order. Exts.P4 and P6 orders are under challenge in this original petition.

4. Heard the learned counsel for the petitioner and the learned counsel for the respondent.

5. As per Order XXIII Rule 1(3) of Civil Procedure Code (for short “the Code”), the plaintiff can seek permission to withdraw from the suit with liberty to file fresh suit in respect of the same subject matter of the suit, on any of the two grounds: (1) the suit would fail by reason of some formal defect (2) there are sufficient ground for allowing the plaintiff to institute a fresh suit in respect of the same subject matter. The court can allow the application under Order XXIII Rule 1(3) only on satisfaction of either of these conditions. The word “formal defect” appearing in Rule 1 sub-clause (3) of Order XXIII of the Code means the defect which does not affect the merits of the case whether that defect is fatal to the suit or not. There is no case for the petitioner that there is any such formal defect. The learned counsel for the petitioner submitted that there are sufficient grounds for allowing the petitioner to institute a fresh suit for the subject matter of the suit and hence the court below ought to have allowed Ext.P3 application. In support of his argument, the learned counsel has relied on a latest judgment of this court in Sabu Issac v. Antony Chacko (2020 KHC 682). It was held therein that the expression “sufficient grounds” occurring in clause (b) of Rule 1(3) of Order XXIII of the Code is not to be read ejusdem generis with the expression “formal defect” occurring in clause (a). It was further observed that there is no requirement that “sufficient ground” pleaded by the plaintiff for seeking permission to withdraw the suit with liberty to institute fresh suit shall be analogous to a formal defect.

6. It is settled that the subject matter of the suit which is sought to be instituted afresh shall be the same as that of the suit which is sought to be withdrawn. The subject matter mentioned in clause (3) of Rule (1) includes the cause of action as well. Thus, no permission can be granted if the suit sought to be instituted is in respect of different subject matter. Sub-rule (3) is not intended to permit a plaintiff to withdraw one suit and to institute any suit as he likes. The Supreme Court in K.S.Bhoopathy and Others v. Kokila and Others (AIR 2000 SC 2132) has held that fresh suit should be in respect of the same claim or part of a claim of the same subject matter. The Original Petition instituted by the petitioner was one for restitution of conjugal rights. Now, after withdrawing the said petition, the petitioner wants to institute an original petition with a prayer for nullity of marriage. Both the claims are totally opposite and the subject matter also is not the same. That apart, the petitioner had no case that the marriage was null and void in the counter filed to OP No.1166/2018, the divorce petition filed by the respondent. The petitioner never had a case that the respondent did not give consent for the marriage and hence the marriage was null and void. The court below on perusing the evidence adduced by PW1 found that she did not depose that her consent was not obtained for the marriage. We see no jurisdictional error committed by the court below in passing the impugned orders so as to invoke the jurisdiction vested with this court under Art.227 of the Constitution of India.

Original Petition stands dismissed accordingly.

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