1 (2013) DMC 116 (DB)
MADRAS HIGH COURT R.
KAVITHA
versus
C. PRABAKAR
C.M.A. No. 2033 of 2010-Decided on 17.9.2012
(i) Civil Procedure Code, 1908-Order 23 Rule 1(3)- Withdrawal of suit/petition with liberty to file fresh suit/petition on same cause of action- Court has to be satisfied about existence of formal defect as contemplated under Order 23 Rule 1(3), CPC.
(ii) Family Courts Act, 1984-Section 19(2)-Appeal-Order granting
permission to withdraw divorce petition with liberty to file fresh petition Not an interlocutory order – Appeal against said order maintainable.
(iii) Civil Procedure Code, 1908-Order 23 Rule 1(3)- Withdrawal of suit with liberty to file fresh suit-Scope and ambit of provision.
(iv) Family Courts, 1984-Section 10(3) – Civil Procedure Code, 1908 -Order 23 Rules 1(3), 2-Withdrawal of divorce petition with liberty to file fresh petition, is not a settlement in respect of subject matter of suit for proceeding – Seeking permission to withdraw divorce petition cannot be said to be proceeding under Section 10(3) of F.C. Act – For granting permission to withdraw divorce petition, Family Court cannot adopt its own procedure – Petition under Order 23 Rule 3, CPC ought to have been filed by respondent Family Court has also not recorded any reasoning recording satisfaction about existence of formal defects and reasons for granting permission to withdraw divorce petition with liberty to file fresh petition-Impugned order set aside.