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Judgment
Mr. Sarangi, learned advocate appears on behalf of appellant-husband. He submits, his client had filed the civil proceeding for dissolution of marriage. The case was set for exparte hearing as respondent-wife did not appear. Then there was omission on part of his client to appear and the case was dismissed. His client filed for restoration of the case on delay. By impugned order dated 26th August, 2023 the application was rejected.
On query from Court he submits, the delay in filing for restoration of the civil proceeding was found to be seven years and unexplained. That is not correct because his client had preferred appeal from dismissal of the case and coordinate bench by order dated 14th February, 2022 had allowed withdrawal of the appeal on prayer for liberty to his client to file appropriate petition before the family Court.
Rule-4 in order-IX, Code of Civil Procedure, 1908 provides for plaintiff filing fresh suit or the Court restoring the suit to file. Cause of action of appellant is regarding occurrence and proof of ground for divorce. It should not prevent appellant from filing fresh proceeding for dissolution of the marriage. On query from Court Mr. Sarangi submits, his instruction is that respondent-wife has remarried.
We dispose of the appeal with observation that appellant cannot be barred by res judicata on urging his grounds for dissolution of marriage since there was no adjudication in the earlier civil proceeding, dismissed and thereafter application for restoration also rejected.
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