../ ,giylsjoR iianc ^m- ^ ^«c?r^rrf^i^reEi '^TOTm,"Tw^i" |@.<q.j ^^ r-A^;^/o^/-/Q /^^ //3Frt1^^T — ' ^^Wr ^SieTT TcRTft q-Tci §fts^r^t ^TT TC^T^, 7^ 2B rf, T^T?far w^r %TT I ?W?7 i orT^ ^tr ^ qli, se^r qf?,|TT T^crra^, ^^ ^^^eRT^T Qg* 9 TuicTT T^CT'?13T JE?*3I. :%":^:J. ..--^.^^ i. .y •^y- ^cd^T^/W^^^ - bu^.^..,-.- ..--...-. y STO^fr pTT TcrOT^ q^ •?q. it egBm'c? T^T^t", ^ 50 ^5, I^T^t ?T<T" ^- rr&ltTTT ^T^' 36 ^rer ^T-i,qfS giTerT^, TTO^, T^cTT'TRTl? J@-^. si^ ia^r MTT 19%^ "^TErTm al^^ti y HIGH COURT OF CHHATTISGARH AT BILASPUR DB: Hon'ble Shri LM. Ouddusi. Hon'ble Shri Prashant Kumar Mishra, JJ. F.A.M. No. 2/2010 Smt Sajla Tiwari Versus Ashwani Kumar Tiwari JUDGMENT FOR CONSIDERATION Sd/- Prashant Kumar Mishra Judge Hon'ble Shri I.M. OuddusL J. ^5 JUDGE ^-04-2011 Postfor \°) -04-2011 Sd/- Prashant Kumar Mishra Judge ^\ HIGH COURT OF CHHATTISGARH AT BILASPUR DB: Hon)ble Shri I.M. Ouddusi. Hon'ble Shri Prashant Kumar Mlshra, JJ. APPELLANT F.A.M. No. 2/2010 Smt. Sajla Tiwari Versus RESPONDENT : Ashwani Kumar Tiwari Shri Vijay Kumar Mishra, counsel for tfie appellant. Shri Rajeev Bharat, counsel for the respondent. JUDGEMENT (^.04.2011) Per Prashant Kumar Midura, J. This appeal under Section 19 (1) ofthe Family Courts Act, 1984 has been preferred by the appellant/wife challengmg the order passed by the Family Court (Camp Court) Katghora, District Korba rejecting her contention that the proceedings pending in the said Court is not maintainable. (2) Facts of the case, in short, are that the parties to the proceedings were married at Mahamaya Mandir, Ratanpur on 25/04/2004. On account ofmarital disputes fhe respondent/husband preferred aii application under Section 13 ofthe Hindu Mairiage Act for grant of decree of divorce before the Principal Judge, Family Court, Raipur which was registered as Civil SuitNo.l26-A/2006. In the said proceedings the appellant/wife filed faer reply and also raised an objection regarding maintamability of the application in le Raipur Court. On such objection being raised the respondent /ff^\ \.vsai%j '^te^ -z- moved an application captioned as "Application under Order 7 Rule 10 ofCPC seeking permission to withdraw the plaint with liberty to present it before the jurisdictional Family Court. This application was laken up for hearing on 13/02/2007 mid thereafter it was posted for orders on 15/02/2007. However, on the said date the order sheet records that tiie respondent does not want to press tfae appltcation under Order 7 Rule 10 CPC as well as the maia application under Section 13 ofthe Hindu Marriage Act, 1955. The main proceedings was thus dismissed as not pressed. (3) The present application under Section 13 of the Act, 1955 was thereafter moved before the Katghora Court on 13/03/2007. The appellant/wife appeared before the Ka^hora Court and objected to the maintainability of the proceedings on the ground the earlier application having been withdrawn, in the Court at Raipur, present proceedings is not maintainable. It is this objection which has been rejected by the Family Court, Katghora by the impugned order. (4) Leamed counsel for the appellant would submit tfaat since the respondent had withdmwn tfae proceedings without seeking liberty from the Family Court, Raipur, the present application is not maintainable. On the other hand, leamed counsel for the respondent has argued that the application filed in the Family Court at Raipur was withdrawn because on objection being raised by the appellantit was felt that the Raipur Court has no jurisdiction and tiius Ae ,^ present proceedingsare maintamable. ^,^^^^^ ^. "^. ^^v ^ •Ki . -t«& J ^-^ s'> .3' (5) The short question arising for determination is whether tfie subsequent proceeding at the Katghora Court is maintainable in the absence of the respondent having sought Uberty to file fresh proceeding while getting his case dismissed as not pressed in the Raipur Court. (6) In the matter of Pillarisetti Gotflmgam Vs. The State of Andhra Pradesh AIR 1961 Andhra Pradesh 488 it has been held that where a suit is instituted against fhe Oovemment before the expiry of the statutory period under Section 80, the suit must be deemed not to have been instituted at all and the question of application ofOrder 23 to such a suit cannot arise, as that provision relates to a properly instituted suit and a formal defect occurring therein. (7) Objection raised by the respondent is on tfie strength of provision contained in Order 23 Rule 1 (4) of CPC wherein it is provided that where the plaintifif withdraws from a suit he shall be precluded from instituting any fi'esh suit in respect of such subject matter or such part of the claim, whereas aecording to the respondent the Court at Raipur had no jurisdiction, therefore an application was moved seeking liberty to institute a fresh suit mid thus the plaintiff cannot be precluded from instituting fresh suit. In this regard, it is to be seen that tiie appellant had objected to the jurisdiction ofRaipur Court and on such objection being raised the ^appellant moved an application for withdrawal of the suit with ^•••'":.^':^\ / > '^ .;s ^^-^ -4" '^. liberty to file a fresh suit before the competent court. It appeays, since the respondent was heard in person and was not assisted by a lawyer he withdrew the suit as well as the application wherein he had sought liberty. When the parties are not assisted by legal experts and proceedings were withdrawn on account of the fact that fhe Court at Raipur had no jurisdiction, it will not be in the interest of justice to deny the respondent a decision on merits ofthe disputes.It is not a case where the respondent did not demonstrate his willingness to institute a fresh suit rather he had categorically mentioned in his application that he may be granted opportunity to file fresh suit before the competent court. It is also to be seen that the court at Raipur had no jurisdiction to try the suit because neither the marriage was solemnized at Raipur nor tiie parties to tfae marriage last resided together within the jurisdiction of Raipur court. (8) On pemsal of the order passed by the Court at Raipur it appears that the application for withdrawal of suit with Uberty to institute j&esh suit was heard on 13/02/2007 and was posted for orders on 15/02/2007, however on the said date i.e. on 15/02/2007 the application under Order 7 Rule 10 CPC as well tfae main petition was dismissed as not pressed. The order itself is self contradictory because if the application for withdrawal under Order 7 Rule CPC has been allowed to be not pressed, the same would meaa that le plamtijQT wants to proceed with the suit, however in the same v ^ ^5 breath the order sheet records that the plaintiff also withdraws the main proceedings. Their appears apparent contradiction in the prder which has taken place because of the lack of assistance oflegal expert. (9) In view ofthe above, this Court does not find any iHegality &r irregularity in the impugned order passed by the Family Court, Katghorarejecting appellant's objectk>n regarding mamteinability of the proceedings, because in any case, Raipur Coyrt had no jurisdiction to try the suit. (10) Consequently, the appeal fails and is hereby dismissed. Sd/- I.M.Quddusi Judge Sd/- Prashant Kumar Mishra Judge ^-