The High Court · 2025

Petition under Section 1 51 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to stay of all further proceedings H.M O.P.No.22 of 2O22 on the frle of Senior Civil Judge, Kalwakurthy. Counsel for the Petitioner: Sri VSRMV Prasad Sanaka Counsel for the Respondent: Sri K. Sreenivas The Court made the following: ORDER ,; I I THE HONOURABLE SMT JUSTICE K. SUJANA C[VIL REVISION PETITION No.1447 OF 2024 ORDER: This Civil Revision Petition is frled challer-rging the order dated O1.O4.2O24 in I.A.No 17 of 2O)4 in Il.M.O.P.No.22 of 2022 on the file of Senior Civil Judge Kalu,akurthy. '2- The brief facts of the case are that the responclcrtt herein/husband, hled H.M.O.P.No.22 of 2O22 unclcr Section 13(1) (b) of the Hindu Marriage Act, 1995 (tur short 'the ActJ seeking divorce from ptllit iorlt:r: herein/u'ife. In the said H.M.O.P., the petlti"rre r,'uilc Iiled IA.No. 17 of 2024 under Order VII Rute I I rc:rcl u.itlt Section 151 of the Civil Procedure Code (for short 'r.-PC') with a prayer to reject the plaint filed in H tvl O P Aftcr he:rring both sides, the trial Court dismissed ttie saicl lA.. uide order dated O1.O4.2O24 and obscrving that there rnas no valid reason for rejection of plaini i petitiorr' Aggrievccl thereby, this revision petition is file'1. 2 SKS, J CRP.No.I447 OF 2023

3. Heard Sri VSRMV Prasad Sanaka, learned counsel for petitioner/wife, and Sri K.Sreenivas, learned counsel for respondent/husband.

4. karned counsel for petitioner submilted that the trial Court erred in not applying its mind to the matter and misapplied Order VII Rule 11(a) of the CPC, ignoring the fact that the same cause o[ action and rclief wcre involved, and faited to reject the petition under Order Il Rule 2 of CPC, as two petitions sccking the same relief cannot be maintained. He asserted that the petitioner is the Iegally wedded wife of thc rcspondent, rvho u'as forced out of her matrimonial homt: duc to dcmertlds for additional dowry, and that durrng hcr stay, slic faced severe physical and mental haretssment, leading her to lrle DVC.No. 15 of 2Ol2 and MC.No.7 of 2O20' He lamented that the trial Court arvarded a monthly maintenance allowance of {1O'O0O/- u'hich thc respondent had failed to pa)' despite having sulficient means. He averred that the failure o[ respondcnt to pay the maintenance allowance is a clcar violzrtion o[ the : i i t I I I I I I I I I I 3 SKS'.I CRP.No.1447 OF 202 1 Court order. Furthermore, the respondent had prcviouslv filed a petition urde (M)'OP'No'13 of 2012' n,hich was dismissed, and suppressing the said ' another l)eritron r.r,as filed, without obtaining permission from the Court. Therefore, while advocating that the trial Cortrt crred in dismissing IA.No.17 of 2024 frled by thc I)ctirioner lor rejection of plaint/petition, he divulgccl rh:11 t hc petition filed by the respondent is n()t nraintainable either in law or on facts and is liable to llc clisnrisst'd under res judicata and prayed this Court tcr allorr t[.tc revision petition, setting aside the impugrred rrrclt r dated O1.O4.2024. ()n thc other hand, the learned counsel ltrr .r rcspondcnt /husband vehemently opposed ttrt' sirbnrisstons made by Iearned counsel for petitioner ancl sulrnrittt'cl that there is no illegality in the impugnt:cl orcllr stating that the petition frled by the petitioner lor- rejcL'l ion of ptaint/ petition in H.M.O.P'No'22 of 2022 is nol rn.tintainable, as the cause of action for filing tht' I1 . i\{ . ( ) P. is zi continuing one, and mere dismissal ol tl.rt: 4 SKS, J CRP.No.I447 OF 2024 earlier O.P., for default does not bar the respondent from hling second application for divorce. He larnented that the grounds raised in this revision petition are untenable in the eye of law, and that there are no illegalities in the impugned order. He averred that the respondent hled the said HMOP., even after dismissal of earlier petition, as the same was filed witJ. allegations of adulrery and desertion, which are continuing causes oI actron. Therefore, prayed this Court to dismiss the revision petition, as the same lacks merits.

6. Having regard to the rival submissions made and on going through tlte material placed on record, it is noted the respondent/husband had earlicr fited an Op in the year 2013 seeking divorce but the same u,as dismissed for default and thereafter, he tiled HMOP.No.22 of 2022 and that being so, it is rhe specilir. contention of learned counsel for the petitioner/wife that the said HMOP is not maintainable and that rhc petirion is liable to be rejected as the subsequent HM()p was ljled / I 5 SKS, J CRP-No.1447 OF 2024 with similar cause of action and the trial Court failed to consider the same

7. tn a petition hled under Order MI Rule 1l of CPC the appllcant is bound to prove any of the grounds as mentionr:rl in Order VII Rule 1l of the CPC, whereas, in the cas(' on hand, the only ground urged by the petrtroncr'/\\'ifc is that without hling set aside petition in prer,ious OP u'hich was dismissed for default, the respondcrrt/htrsband had hled another OP seeking same rclie[. Ilou'evcr, rt is the specific stand of leamed counsel for rcsponde n t / husband that the grounds of the I{MOP Nr,.22 rl' 2022 are different than ttre earlier OP irncl thirr tirt' same revolves around the suspicion of rcspon(lcnt / husbar-rd regarding the illicit relationship of pctitiont'r,i w.ili: u'ith respondent No.2 in the HMOP. U. In support of the said contentions, learned counsel ftrr pctir rrrnur re Ied on the judgment rendered in the case ol- R.Nalliyappan Vs. I.Calvin Jonesl whereunder, it 2021 Lrvet,rw (Mad)42 i i I i I i 6 St(S. J CRP.No. t447 OF 2024 was observed that "Insofar as the ground of dissolution of matimonial ma:tters are concem.ed., tlrcy are of conttnuing or recurring nature. Tle petition for d.i.ssolution of manriage on tLrc ground of crueltg, d.esertion and_ odultery is not precluded from suing again for dissolution on the same groun d.s, prouided the retief i.s found.ed on neu) Jacts. The couse of action mea ns a bundle oJ. facts constituting the right of a partg uthich he has to establish in order to obtain a relief from a Court. The facts tuhich constitute tle grounds of crueltg, desertion or adultety as the case may be, are likelg to uary giutng rise to different c{ruses of action depending on th_e facts and cirat mstanes of each cases. Wwn cause of actiotl is of cotttinuing and recurring nature, the subsequent litLgatiort of diuorce brought on same grounds disregardiry the rlismissal of former O.p. wi not be banred by res_ judicata". Further, in the case of Malti Vs. Ramesh Kumar2 it was held as under: "15. In view of the above, the order passed by tlle learned tdal court 2006 LawSuit (Dethi) 733 -r' 7 S(S, J cRP.No.l447 OF 2024 dismissing the application under Order IX Rulc 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 bc set aside. However I may add a word o[ caution. The order dated

19.7 .2OOO rlismissing H.M.A. 188/2000 on the ground of non prosecution and default, wrll not come in tl.e way of the rcspondcnr in establishing and proving a ground for clivorce on the basis of cause of :tctron thrrr may/might have accrued to hrm ;rftcr filing of the first petition for divrrccic H.M.A.l88/2OOO. Divorce protcedings based upon the cause of aclr()n orl n hich first proceeding was filed is brrrred itnd not maintainable. F\rther, th(' respon(lcnt will be also at liberty to filc ancl insrrtute any proceedings for dirrrr, e on the basis of continuing cause of action pror ided the cause of action has corrtrnucd aftcr 19.7.2000, when the first 8 SKS, J CRP.No. t.147 OF 2024 A p€tition for divorce was dismissed in default and for non prosecution." 9 . Admittedly, the OP that was filed earlier was dismissed for default and thereafter, the respondent/ husband filed another HMOP with different cause of action ald different grounds. The dispute betwcen the parties is a matrimonial dispute which clarifies that the cause of action cannot be of limited extent and the cause of action continues. In addition, as thcre is a different cause of action in HMOP.No.22 of '20'2'2 Llrc res judicato is not applicable as different cause o[ zrction is mentioned in HMOP,No.22 of 2022. I 0. Hzrving regard to the facts and circumstances o[ th(i case, as narrated above, and in view of the abovc cliscussion w'ith regard to different cause of action in the earlier OP and the subsequently liled HMOP.No,22 of 2022 this Court is of the opinion that there are no inllrmities or illegalities in the impugned order dated Ol O4.2O24 in I.A.No.17 of 2024 in H.M.O.P.No.22 of ,/, r I I I 9 SKS, .-I CRI'.N1.I447 OIt 2024

2022. There are no merits in this revision petition and the same is liable to be dismissed. 1 1. Accordingl5,, this Civil Revision petition dismissed. There shall be no order as to costs. 1S Miscellaneous applications, if any pending, shali also stand close d. //TRUE COPY// Sd/- P. PADMANABHA REDDY T REGISTRAR SECTION OFFI CER The Senior Civil Judge, Kalwakurthy. One CC to Sri VSRIIV Prasad Sanaka, Advocate IOPUCI One CC to Sri K. Sreenivas Advocate [OPUC] Two CD Copies To,

1. 2. 3. 4. VH/gh w HIGH COURT DATED: 0ztOltZOZs ORDER CRP.No.144t of 2024 * ( t 1 \le 5lA/t o^ 0 1 '1ll 2[?i _O5 en ,l< -v\\ : / DISMISSING THE CRP