IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL First Appeal No. 57 of 2008 Rakesh Kumar Bhatia S/o late N.K. Bhatia R/o H. No. 67, Sector 20, Panchkula, Haryana. ...…………. Petitioner / Appellant Versus Smt. Sudesh W/o Shri Rakesh Kumar Bhatia Presently R/o House No. 78, Arya Nagar, Jwalapur, Tehsil and District Haridwar. ...…………. O.P. / Respondent Mr. Lalit Miglani, Advocate for the appellant. Mr. Ratan Lal, Advocate for the respondent. Coram : Hon’ble Prafulla C. Pant, J. Hon’ble B.S. Verma, J. Hon. Prafulla C. Pant, J. (Oral) This appeal, preferred under Section 19 of the Family Courts Act, 1984, is directed against the judgment and decree dated 21.08.2008, passed by the Judge, Family Court, Haridwar, in Suit No. 57 of 2002 (old No. 156 of 1997), whereby the petition filed by the petitioner / appellant under Section 13 of the Hindu Marriage Act, 1955, was dismissed. 2) Heard learned counsel for the parties and perused the record. 2 3) Brief facts of the case giving rise to this appeal are that the petitioner / appellant Rakesh Kumar Bhatia got married to respondent Sudesh on 14.04.1983, at Roorkee, Tehsil and District Haridwar, according to Hindu rites and rituals. There is no issue born out of the wedlock. It is pleaded by the husband (petitioner / appellant) in his petition filed under Section 13 of the Hindu Marriage Act, 1955 for divorce, that in the first night after the marriage the respondent made allegations of impotency against the petitioner / appellant. She went to the extent of making hue and cry and got collected the neighbours in Mohalla Aryanagar, Jwalapur, where she was living with her husband. It is further pleaded by the petitioner / appellant in the petition that on 07.06.1983, the respondent got published defamatory news item ‘KIYA BANK MANAGER HIZARA HAIN’ (Is the Bank Manager impotent?) in a weekly local newspaper titled “APNE LOG”. The petitioner and her family members tried to persuade the respondent to improve her conduct but she threatened to implicate the petitioner in false cases. On 24.10.1983, it appears that some complaint was made from the parental side of the respondent in the police station, but after intervention of the mediators, a compromise was arrived between the parties. It is further alleged by the petitioner that still the respondent continued to treat the petitioner with cruelty. Thereafter, a Suit No. 98 of 1984; Rakesh Kumar Bhatia Vs. Sudesh, was instituted on 31.05.1984 3 for a decree of divorce, in the court of Civil Judge, Roorkee, which was dismissed in the year 1985, for non-prosecution. The restoration application was also dismissed by the court. (At that point of time there was no family court in District Haridwar). The present petition was filed in the year 1997 (later renumbered as Suit No. 57 of 2002 on being transferred to the family court, Haridwar), on the ground that the respondent has continued to treat the petitioner with cruelty and has deserted him, without any sufficient reason. 4) The respondent contested the petition for divorce and filed her written statement in which she denied having made any allegations of impotency against her husband. She has also denied having got published the defamatory news item against the petitioner / appellant. The respondent has further denied that she ever treated the petitioner with cruelty or deserted him. It is pleaded that she is still living in her husband’s house in Mohalla Aryanagar, Jawalapur, Haridwar. The respondent has raised an objection in the written statement that the present suit is barred under Rule 9 of Order IX of the Code of Civil Procedure, 1908. 5) The trial court, on the basis of the pleadings of the parties, framed following issues: i) Whether, the respondent treated the petitioner with cruelty? 4 ii) Whether, the petitioner treated the respondent with cruelty? iii) Whether, the petitioner is entitled to relief, as claimed? iv) Whether, the suit is barred by Order IX Rule 9 of the C.P.C. If so, its effect? v) Whether, the respondent has deserted the petitioner since 15.04.1983, without any sufficient cause, as alleged in Para 14 of the plaint? 6) The trial court after recording the evidence of the parties and hearing them, gave the finding that the respondent has not treated the petitioner with cruelty. Rather, it is the petitioner who treated the respondent with cruelty. On Issue No. 4, finding has been given that the suit is barred under Order IX Rule 9 of the Code of Civil Procedure. On Issue No. 5, it is found by the trial court that the respondent has not deserted the petitioner. With these findings, the suit filed by the husband, was dismissed vide impugned judgment and decree dated 21.08.2008, passed in Suit No. 57 of 2002 (old No. 156 of 1997). Hence, this appeal by the husband. 7) Admittedly, the parties got married to each other on 14.04.1983 at Roorkee, according to Hindu rites. It is also not disputed between the parties that there is no issue born out of the wedlock. (It has also come on 5 record that petitioner was a divorcee at the time of marriage with present respondent). From the plaint it is clear that the allegations of cruelty made by the husband against the respondent relate to the year 1983. Present suit has been instituted in the year 1997. As such, the acts of cruelty are being complained through the present petition for divorce, after a period of 13 years. From the evidence of the parties recorded by the trial court it is clear that it is alleged by the petitioner that the respondent in the first night after marriage declared him impotent. She created scene and got collected the neighbours. She allegedly got published defamatory news item “KIYA BANK MANAGER HIZARA HAIN” (Is the Bank Manager impotent?) in a weekly local newspaper titled “APNE LOG”. The acts of cruelty complained by the respondent relate to the year 1983, and since the suit for divorce was filed in the year 1997, i.e. after a period of 13 years, as such, even if the alleged acts of cruelty are taken to be true, the same stood condoned in a long period of 13 years. As such, it cannot be said that the petitioner is entitled to a decree of divorce on the ground of act of cruelty, which is said to have taken place 13 years before filing of the petition. Therefore, we do not find any sufficient reason to hold that the finding recorded by the trial court that respondent has not treated the petitioner with cruelty, suffers from any illegality. 6 8) Leaned counsel for the appellant argued that the acts of cruelty and desertion continued as against the petitioner, as such, the trial court has erred in law in holding that the suit is barred by Rule 9 of Order IX of the Code of Civil Procedure, 1908. Admittedly, suit No. 98 of 1984 for divorce, was instituted by the petitioner / appellant (husband) on 31.05.1984, which was dismissed for non-prosecution on 30th of July 1985. From the plaint of present suit it is clear that the acts of cruelty prior to filing of the earlier suit for divorce are repeated. Here, we think it just and proper to quote sub-rule (1) of Rule 9 of Order IX of the Code of Civil Procedure, 1908, which reads as under: “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 proceedings with the suit?” The aforesaid provision of law makes it clear that on same cause of action fresh suit is not maintainable 7 after the dismissal of the suit under Rule 8 of Order IX. Rule 8 of Order IX provides that where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed. It is admitted case of parties that the earlier suit was dismissed for non-prosecution and was never restored. That being so, the fresh suit is not maintainable on the same cause of action. Though, learned counsel for the petitioner / appellant has argued that the present suit is on a fresh cause of action, but the acts of cruelty pleaded in the plaint are prior to filing of the suit of 1984, on which the earlier petition for divorce was filed. As such, the trial court rightly held that the present suit is barred under Order IX Rule 9 of the Code of Civil Procedure, 1908. Learned counsel for the appellant drew attention of this Court to the case of Anil Kumar Chopra Vs. Indira Devi; I (1986) DMC 448 (M.P.), in which it has been held that where a petition is dismissed on the ground of being premature, a fresh petition could not be barred under Rule 9 of Order IX of the Code of Civil Procedure, 1908. In the present case, the facts are different. It is not a case where the first divorce petition was dismissed on the ground of filing premature. Rather, the suit was dismissed for non-prosecution. As such, we are of the view that the aforesaid case law does not help the appellant. 8 9) As to the ground of desertion, though, learned counsel for the petitioner / appellant has argued that the respondent has deserted the petitioner, but from the evidence on record it is clear that the respondent is living in her matrimonial house where she was brought by her husband after her marriage. She is admittedly still living there, as is clear from the statements of P.W. 1 Rakesh Kumar (petitioner) and P.W. 2 Parmeshwari Devi. It is alleged by D.W. 1 Sudesh (respondent) in her statement on oath that after transfer of her husband to various places she was not taken by him. Having gone through the evidence on record, in the circumstances of the case, it cannot be said that the respondent has deserted the petitioner. As such, on that count also the finding of the trial court does not suffer from any illegality, nor is it erroneous. 10) For the reasons as discussed above, we are not inclined to interfere with the impugned judgment and decree, passed by the trial court. Therefore, the appeal is liable to be dismissed. The same is dismissed. (B.S. Verma, J.) (Prafulla C. Pant, J.) Dt. June 03, 2009. H. Negi