Gokal Chand Mital, J. - (1.) Gurcharan Singh filed an application claiming restitution of conjugal rights against his wife, Devinder Kaur under section 9 of the Hindu Marriage act, 1955 (hereinafter referred to as the Act). When the wife got notice of that application from the trial Court, she moved an application under section 24 of the Act claiming maintenance pendente lite and litigation expenses. The learned counsel for the wife made a statement before the trial Court that there was a formal defect in the application due to which he was withdrawing that application. The said application was dismissed as withdrawn in view of the statement of the counsel. Later on, the wife filed another application under section 24 of the Act claiming maintenance pendente lite and litigation 'expenses. That application has been dismissed by the trial Court by order dated 7-1-1982 on the ground that the first application was not withdrawn after obtaining permission to file a fresh application and, therefore, she could not file a new application and the dismissal of the earlier application shall be deemed to he on merits. The wife has come to this Court in revision under section 115 of the Code of Civil Procedure against the aforesaid order.
(2.) After hearing the learned counsel for the parties. I am of the view that this revision deserves to succeed. The provisions of Order 23, Rule I of the C. P.C. would not he applicable to applications under sections 24 of the Act. The Court below was certainly wrong in observing that the dismissal of the earlier application as withdrawn without permission to file a fresh application, would be deemed to have been dismissed on merits. The underlying idea of Order 23, Rule 1 of the Civil Procedure Code. is that unless specific permission is sought from the Court to file a fresh suit on the same, cause of action, second suit would not be maintainable to avoid multiplicity of proceedings and harassment to the opposite party. In this view of the natter, on the facts in hand, those principles are not applicable because he application of the husband for the grant of restitution of conjugal rights is still rending and section 24 of the Act clearly allows the wife to claim maintence pendente lite as also the litigation expenses. Unless her claim under section 24 of the Act is declined on merits by a speaking order, she cannot be denied the benefit of section 24 of the Act.
(3.) Accordingly, this revision petition is allowed, the order of the Court below is set aside and the matter is remitted to the trial Court for decision of application under section 24 of the Act on merits. The parties through their counsel, are directed to appear before the trial Court on 14-2-1983. However, there will he no order as to costs. Petition allowed.;