S.C.Mittal, J. - (1.) On Nov. 18, 1969, Major Charanjit Singh filed petition under section 13 of the Hindu Marriage Act setting dissolution of his marriage by a decree of divorce against his wife Sandeep Kaur on the ground that she had ceased to be a Sikh by conversion to Chiristianity. The ex parte decree obtained by him on July 24, 1970, was set aside by the Additional District Judge, Patiala, on Dec. 23, 1972. The revision petition filed by him was dismissed by this Court on Aug. 17, 1973. Thereafter, he on Nov. 6, 1973, made an application for amendment of the petition for adding ground of adultery. On the following 20th the amendment application came up for hearing. It was opposed by Sandeep Kaur . In the course of the arguments, Major Charanjit Singh Mated that he wanted to withdraw his petition with permission of the Court to file fresh petition for dissolution of marriage on two grounds-(i) Sandeep Kaur's conversion to Christianity and (ii) her living in adultery. By the impugned order passed on the same date, the Additional Sessions Judge granted the permission sought for. Feeling aggrieved, Sandeep Kaur has moved this Court under section 115 of the Code of Civil Procedure. ORDER 23 rule 1 (2) of the Code provides:- "Where the Court is satisfied- (a) that a suit must fail by reason of some formal defect, (b) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of suit or part of a claim, it may, on such term as it think fit, grant the plaintiff permission to withdraw from such or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or part of a claim." Learned counsel for the parties are agreed that clause (a) quoted above not applicable to the case in hand because the expression 'formal defect' is deemed to connote every kind of defect which does not affect the merits of the case. The expression includes misjoinder of parties or of the natters in suit, rejection of a material document for not having a paper stamp and the erroneous valuation of the subject-matter of the suit, vide Full Bench decision of the Bombay High Court in Ramrao Bhagwantrao Inamdar and another Vs. Babu Appanna Samage and others, A.I.R. 1940 Bom. 121.
(2.) So far as the scope of the applicability of clause (b) is concerned, view of this Court expressed in Bhag Mal Vs. Master Khem Chand, AIR 1961 Pun. 421 , was that "other sufficient grounds" occurring in this clause though not strictly ejusdem generis with any 'formal defect' must yet be some analogous to it. but in an earlier decision of a Division Bench of the Lahore High Court in Gurprit Singh and another Vs. Punjab Government, A.I.R. 1946 Lah. 429. , it was held that the words "other sufficient grounds" were much wider in signification and can cover all those cases which appear to Court as affording such grounds. Disagreeing with the Bombay view, the learned Judges of the Lahore High Court further observed that the Bombay High Court by holding the said grounds to be analogous to the 'formal defect' pieced restrictive meaning on this provision For the decision of this case, I do not consider necessary to deal at length with divergent views of the various High Courts.
(3.) Learned counsel for Sandeep Kaur urged that the discretion under Order 23 rule 1 (2)(b) of the Code of Civil Procedure to permit withdrawal of petition with liberty to file a fresh petition has not been exercised judicially and in accordance with the said provisions. The Additional District Judge did not apply his mind to them. Support was sought from the following circumstances. 20th Nov. 1973, the date on which the impugned order was passed, was fixed for arguments on the application of Major Charanjit Singh seeking amendment of his petition by incorporating the ground that Sandeep Kaur was living in adultery with one Manjit Singh. who it was required he impleaded as a respondent. The amendment application was opposed At this Major Charanjit Singh stated that he be allowed to withdraw the petition with permission to file a fresh petition for the same subject matter. Learned counsel for Sandeep Kaur pointed out that Maj a Charanjit Singh did not make a formal application under Order 23 rule 1(2), Civil Procedure Code, averring therein grounds for relief. Consequently, Sandeep Kaur had no opportunity to oppose it by filing a suitable reply. She had come prepared to oppose the amendment application. She was taken by surprise when Major Charanjit Singh unexpectedly changed his stand. The Additional District Judge, in the impugned order has made no reference to Order 23, rule 1(2)(b) and the reasons given by him are not in accord with the provisions thereof. The Additional District Judge expressed himself thus- "It has been stated by the petitioner (Major Charanjit Singh) that he was having in his possession letters, written by the respondent (Sandeep Kaur), in which she had admitted her sexual relations with Manjit Singh and the respondent (Sandeep Kaur), during an attempt to reconcile the parties, admitted her having written some letters to the petitioner but she claimed that she had done so under threat and the pressure and compelling circumstances and for these reasons it will be just and fair to permit withdrawal of the petition with permission to file a fresh petition including the ground of adultery." Nowhere has it been indicated in the impugned order whether Major Charanjit Singh came to know of the alleged adultery before or after the filing of petition for dissolution of marriage.;