Bijitendra Mohan Mitra, J. - (1.)The present revisional application is directed against Order No. 27 dated 6th May, 1995 passed by the 13th Court of Additional District Judge, Alipore, in Matrimonial Suit No. 15 of 1994. The suit has been filed by the husband-petitioner against the wife on the ground of desertion, cruelty and also questionable behaviour of the wife bordering on adultery. During the pendency of the said suit, a petition was filed under Sec. 24 of the Hindu Marriage Act which this Court was told is still now pending and has yet to be disposed of. There is another application filed before the trial Court under Sec. 26 of the Hindu Marriage Act at the instance of the respondent-wife for the custody of the child born of the said marriage. The trial Court disposed of the said petition under Sec. 26 of the Hindu Marriage Act and against the said order High Court was moved and on a contested hearing judgment was delivered. Thereafter manifold proceedings cropped up for It implementation of the said order of custody and it also led to multiplicity of proceeding. This Court has been told and the same appears to be an admitted position that adjudication made by the trial Court while making disposal of a petition under Sec. 26 of the Hindu Marriage ; Act is under consideration before the Hon 'ble Supreme Court and the same is awaiting decision of the apex Court at the time of hearing. After the suit has been filed the husband wanted to withdraw the said suit and this Court enquired as to what would be the effect of such withdrawal. If the suit was allowed to be withdrawn, the pending proceeding in the nature of petition of special leave before the Supreme Court is likely to become infructuous. In this context lot of contentions have been attempted to be raised on construction of Order 23 Rule 1 of the Code of Civil Procedure about the right of a party litigant to withdraw from a suit and/or to abandon the proceeding. the Court before scrutinising the said provision cannot be oblivious of the factum of the Stature of proceeding from which the present controversy has arisen that it is a matrimonial proceeding in 'between tine partners of life and the said marriage has been solemnised under the provisions of the Hindu Marriage Act. Out of the said marriage a male child was born and the question of custody of the said male child is also a bone of contention of the parties in an interlocutory proceeding which is yet to be decided and final curtain can only be dropped after the matter is decided and disposed of by the apex Court. This Court while scrutinising the provision of Order 23 Rule 1 of the Code of Civil Procedure intends to refer some of the provisions of the parent Act, namely, the Hindu Marriage a Act by which this controversy is governed. It is not out of context to refer in this perspective the provision of Sec. 4 of the Hindu Marriage Act which is an overriding effect on any other laws in force immediately before the commencement of the said Act. A further reference may be made to Sec. 21 of the said Act where it is contemplated that subject to any other provisions contained in the instant Act a being Hindu Marriage Act and Rules framed by the High Court, all proceedings under this Act shall be regulated as far as may be by the Code of Civil Procedure. The contents of Sec. 21 of the Hindu Marriage Act is required to be appreciated in the light of a rider clause which is covered by Sec. 21B of the Hindu Marriage Act and it contemplates the modus operandi of atrial of a petition consistently with the interest of justice and more of its prosecution. There is also a mandate casts that every petition filed in a pending matrimonial Us under the Hindu Marriage Act shall be required to be tried as expeditiously as possible. So that the same may not become abortive. This Court also takes note of the provisions of Sec. 26 of the Act which authorises the Court to pass such interim order during the pendency of the proceeding and the orders of custody of children are by nature temporary. With every change of situation and shift of circumstance it may necessitate revision of order keeping in view the ultimate object of the welfare of the child which is to be treated as a paramount consideration. During the pendency of the main Us, an order of custody has been passed which is the subject matter of a pending proceeding before the Supreme Court. In the back-drop of the same the question arises as to whether a party should be allowed to withdraw the suit thereby relegating such petition for custody as nonest and infractuous. All exercises done so far and the parties have travelled up to the stage of apex Court may turn out to be exercised at the choice of free play and whim. One of the parties to terminate the proceeding so that there may be burrial of pending live controversy in respect of a custody of a minor child. The learned trial Judge while passing the impugned order has made a reference while considering the question of Order 23. Rule 1 of the Code of Civil Procedure that there was a snag According to the opinion of the learned trial Judge if the suit is allowed to be withdrawn, now the application pending before the Honourable Supreme Court will be infructuous. The learned trial Judge directed that the instant suit cannot be with- drawn at this stage till the matter under Sec. 26 of the Hindu Marriage Act is adjudicated upon by the apex Court. The arena of Court is meant for adjudication of rights of parties and not for speculative exercises of the parties to a proceeding. In the said context reference was made from the Bar to a recent decision in the case of Uday Paly. Mira Pal reported in 1993(2) CLJ page 437. A Division Bench of this Court, where the learned Presiding Judge of this forum is also a party, has held that Order 23 Rule 1 of the Code of Civil Procedure may entitle the plaintiff to withdraw/abandon the suit but there is nothing in that provision to oblige the Court to dispose of the application therein regardless other consideration and to the prejudice of the pending statutory obligation intended for benefit pendente life with retrospective effect In the cited decision the Division Bench has directed the disposal of a pending application under Sec. 24 of the Hindu Marriage Act before the petition for withdrawal can be considered and the hearing of the petition for withdrawal was postponed till the disposal of the application under Sec. 24 of the Hindu Marriage Act. Similar view has been expressed in a recent decision in the case of VinodKumar Kejriwal Vs. Usha Vinod Kejriwal, reported in AIR 1993 Bombay page 160, wherein it has been held that the Court cannot allow a husband in a matrimonial proceeding to withdraw his application with a view to adversely effect the wife's remedy for maintenance pendente lite under Sec. 24 of the Hindu Marriage Act. This Court wants to mention by way of abandon caution that it wants to make explicitly clear that rules as envisaged under Order 23 Rule 1 of the Code of Civil procedure are not inflexible rules and departure can be made in matrimonial proceeding and a party can be prevented from being afforded with leave to withdraw the suit as a result of which benefit accruing from pending petition under Sections 24 and 26 of the Hindu Marriage Act may become infructuous. This Court with that end in view have been made copious references from Hindu Marriage Act to illustrate that Code of Civil Procedure cannot have absolute and inflexible application in a matrimonial proceeding as the same is primarily regulated by a self-contained statute. The legislature in its wisdom has made insistence on consistency with interest of justice in respect of disposal of a petition forthwith to thwart impending possibility which may emerge from non-disposal of the petition during the pendency of the suit.
(2.)Mr. Bikash Bhattacharyya, the learned Advocate appearing on behalf of the petitioner, has heavily relied on the case of M/s. Hulas Rai Baij Nath Vs. K. B. Bass & Co., reported in AIR 1968 SC 111. The cited decision is in respect of a suit for rendition of accounts by principal agent the principal and there the Supreme Court has observed that the language of Order 23, Rule 1, sub-Rule (l) gives an unqualified right to a plaintiff to withdraw from a suit and that can be done only on payment of costs. That decision was pronounced in a suit of particular nature which is not a matrimonial his and this Court repeats that provisions of Civil Procedure Code in its entirety do not and cannot apply in regulating a suit or a pending matrimonial as it is subject to restriction as contemplated under Sec. 21 of the Hindu Marriage Act. The case cited by Mr. Bhattacharyya is on fact distinguishable and also on law stands on a different footing because the said ratio cannot be made applicable to a petition for withdrawal under Order 23, Rule 1 of the Code of Civil Procedure where interlocutory applications under sections 24 and 26 are either kept pending or some right has accrued therefrom in favour of a party litigant. Mr. Bhattacharyya has tried to duel on the concept of principle of peri,curium but from reference of cases it appears that not only the above noted cited decisions have been referred to but the same has been also mentioned in the body of the judgment and the Division Bench is not apparently oblivious of the effect ; of implication flowing from the Supreme Court judgment.
(3.)The revisionist petitioner has not made out any case for granting him leave to withdraw his main lis pending before the Matrimonial Court on the allegation of any formal defect in his petition or there was no sufficient ground for allowing the petitioner to institute a fresh proceeding for the subject matter of his claim. The only point referred to by Mr. Bhattacharyya is about filing of the suit before the expiry of the time limit of the period of desertion for being afforded with a matrimonial relief. It is debatable that if during the pendency of the main matter the time expires whether a party can avail himself of the said ground. In a proceeding for matrimonial relief, desertion has two aspects namely, physical desertion and element of animus in desertion. The aspect of animus desertion is more important than physical aspect. If cause of action is not there, for the same the party cannot be allowed to fill up the lacuna in the defect of cause of action for which a leave maybe 1 granted to file a fresh suit. Here, in this case, lot of bitterness has been there on the question of interim custody of the only child born of the marriage. This Court has been apprised of the fact that during the period of consideration of the present application before in course of delivery of judgment the Supreme Court has dismissed a Special Leave Petition arising out of an order of interim custody of the child by an order dated 23.12.1994 passed in S Rs.P. No. 11690 of 1995. The same has been followed by spate of litigations ultimately leading to an appeal from an order of contempt of the order passed by this Court. The Appeal Court has passed an order directing the Special Officer, appointed in the case for that particular purpose, to hand over the child to the mother and to put him in a residential institution. This Court at the present juncture is not concerned with the aspect of the order passed by the Division Bench of this Court by sitting in Appeal from an order of contempt but the fact remaining as it is that Supreme Court has now directed the interim custody of the child in favour of the mother. That being the position, the same should continue as existing arrangement till the suit is disposed of and further a petition for maintenance has been kept pending which is also required to be disposed of. Accordingly, this Court does not feel inclined to grant leave to the husband-petitioner to withdraw the suit. The plea for withdrawal should not be entertained unless the petition for maintenance pendente lite is also disposed of in the pending lis. The Trial Court should also be slow and circumspect to allow a party to withdraw a pending suit with a leave to file a fresh suit unless the conditions prescribed for withdrawal of the suit are strictly fulfilled. Accordingly, the revisional application fails on contest and it stands dismissed. There shall, however, be no order as to costs.
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