Chandra Reddy, C.J.
1. This is an appeal against the order of the Subordinate Judge, Nellore, accepting a petition of the husband under Section 9 of the Hindu Marriage Act.
2. The material facts of the case lie in a short compass and may be stated as follows:
The parties were married more than twenty years back and had four children at the relevant time. The respondent who was in military service, was discharged in the year 1947. In the same year he enlisted himself as a Jamedar in the Special Armed Police and served in that capacity in several places. In 1957, when the respondent was at Kurnool, appellant left for Nellore for reasons which need not be set out here. Whatever might be the cause for her departure from Kurnool, she did not rejoin her husband subsequently. Sometime later the respondent appears to have been posted to Jammu and Kashmir. While he was there, a petition was filed by the appellant under Section 488 of the Criminal Procedure Code for maintenance for herself and her four children in the Court of the First Class Magistrate, Nellre, and maintenance was awarded to the petitioners therein at a rate which need not he specified here and the grounds upon which that order was passed will be referred In in the proper context.
While this application under Section 488 Cr. P. C. was pending, the respondent presented a petition under Section 9 for the relief of restitution of conjugal rights. He could not diligently pursue this matter being away in Kashmir. In July 1961, an application for adjournment of the mailer was made by him, with a certificate of his official superior annexed to it. On receipt of this request, the Subordinate Judge made the following order:
'In view of the representation made that it will not be possible for the petitioner to get on with the enquiry before the end of August 1961, it is not necessary to keep this petition pending for so long a time. If and when the petitioner is capable of seeking restitution of his conjugal rights in the normal circumstances, he can conveniently move the Court by a separate and suitable application. Hence this application is closed.'
3. It is with the effect of this order we have to deal primarily in tin's enquiry.
4. The above order was made on 15-7-1961. On the 22nd of August, 1961, the petition giving rise to this appeal was filed by the respondent for the same relief. This was resisted by the appellant chiefly on the ground that she had to leave her husband's house as her life was made unbearable. It was recited in the counter-affidavit, inter alia, that in the litigation that was pending between herself and her father, her husband began to take sides with her father, who was no other than the former's maternal uncle, and was 'harassing her to compromise the said litigation' and when she did not listen to this he began to illtreat her, scold her and beat her. Another objection taken was that the dismissal of the prior application for the same relief, viz. O. P. No. 57/1960 barred the present one and that the order of the First Class Magistrate, Nellore, in the maintenance proceedings (M. C. 91/1960) would disclose that the appellant was being ill-treated by her husband.
5. These objections did not prevail with the trial Court. It came to the conclusion on the material before it that the wife had no Justifiable cause or reasonable excuse to withdraw from the society of her husband. It is this conclusion of the learned Judge that is impugned before us.
6. At the outset, it must be mentioned that the finding of the Subordinate Judge that the appellant was not ill-treated was not canvassed before us. But the judgment was attacked on three grounds: (1) that the dismissal of O. P. 57/1960 operated as a bar to the present application; (2) that the Subordinate Judge had not applied his mind to the provisions of Section 23 of the Hindu Marriage Act; and (3) lastly that the order in M. C. 91/1960 prevents the respondent from seeking the relief of restitution of conjugal rights.
7. In support of the first contention. Shri Veukata Subbarao, learned counsel for the appellant, drew our attention to Order XXIII, Rule 1 C. P. C., and submitted that as the requirements thereof were not fulfilled in this case, it was not competent for the trial Court to permit the respondent to withdraw that application with liberty to file another. We fail to see how Order XXIII C. P. C. would come into operation in case like this at all. Apart from the question whether it covers proceedings other than suits, this is not a case where an application was filed for permission to withdraw the petition under Section 9 with liberty to file another application. He only requested for time till August, 1961 to prosecute the proceedings for the reasons stated therein. Instead of granting the request or adopting such procedure as is prescribed by law, the Judge ordered that the application should be closed, observing that he could file a 'separate and suitable' application as and when it is convenient to him.
8. Before we deal further with the merits of the appeal we must observe that we cannot too strongly condemn the procedure adopted by the learned Judge. This practice of closing suits or petitions must be deprecated.
9. Now, to come back to the consideration of the, consequences of this order we do not think that this constitutes a dismissal of the petition as strongly contended for by Mr. Venkata Subbarao. The learned Subordinate Judge has not adopted the phraseology of dismissal. He merely stated 'closed'. We do not know what induced the Subordinate Judge to adopt this procedure. Perhaps, this was done for statistical purposes. Whatever might be the reason, it is difficult to consider this as tantamount to a dismissal of the petition. Further, there is no provision of law, either in the Code of Civil Procedure or in the Hindu Marriage Act, under which the Court could close the proceedings without giving a final disposal to the matter. That being so, It only amounts to an adjournment of the petition sine die.
10. Moreover, a party should not. suffer by an act of the Court not sanctioned by law, In this situation the present application should be treated as containing a request to continue the proceedings in a pending application and there can be no bar to its being proceeded with.
11. This view of ours is vouched by a number of decided cases. In Pattannayya v. Pattayya, 50 Mad LJ 215: (AIR 1926 Mad 453) the executing Court disposed of a petition in these words. 'The 3rd item was delivered to the petitioners and the petition was recorded'. Dealing with the effect of this order. Division Bench of the Madras High Court observed that there was no provision of law by which the executing Court could lodge the petition or record it, or strike it oti lor what is commonly called the statistical purposes and that such an order is not one sanctioned by the Code and it only amounted to being adjourned sine die, which meant that the execution petition was kept pending. that being the legal position, the subsequent application tiled by the decree-holder for the same relief was not an application under Article 181 of the Limitation Act, but an application asking the Court to continue the proceedings in a pending application.
12. A similar view was taken by a Full Bench of the same High Court in Abdul Aziz Sahib v. Chokkan Chettiar, ILR 58 Mad 893: (AIR 1935 Mad 803) (KB). The order of the District Munsif which had given rise to the decision of the Full Bench was in these words: 'Possession with not given on account of obstruction. Petition dismissed,' The learned Judges regarded this order as having been passed for statistical purposes and the matter was not decided against the decree-holder they said that the subsequent execution petition should be considered in the circumstances of the case as a continuation of the petition for delivery of possession of the lauds.
13. In the same trend of thought is another Bench decision of the same Court consisting of Chief Justice Rajamannar and Justice Venkatarama Ayyar in Moidin Kutty v. Doraiswami Aiyar, : AIR1952Mad51 . They had to consider the effect of the order in an execution application, 'The decree-holder is reported dead. No salt; taken place. Petition closed. No L. R. impleaded.' The learned Judges decided that that order was not a final order amounting to the dismissal of the execution petition and should be deemed to be pending and the following execution petition was one in continuation of it.
14. These rulings receive support from the observations of their Lordships or the Supreme Court in Desika Charyulu v. State of Andhra Pradesh, AIR 19B1 SC 807 at p. 818. There, the Supreme Court was hearing an appeal against a judgment of this Court which dealt with the effect of the dismissal of the appeal by two of the members of an Estates Abolition Tribunal consisting of three members. In that matter, the decision of the Tribunal dismissing the appeal was impugned as incompetent for the reason that whereas Section 8 provided for a tribunal consisting of three members, in that case it was heard and disposed of by only two. While holding that the order of dismissal was a nullity it was stated by this Court that that would not automatically nullify or vacate the determination and decision of the Settlement Officer under Section 9 and his finding that the village in suit was an 'inam estate' but that it had the effect merely of leaving the appeal where it stood at the time it was purported to be dismissed by the two members who could not function as the Tribunal. Their Lordships of the Supreme Court upheld this view,
15. On this authority, there can be little doubt that there was no final disposal of O. P. 57/1960 and it was still pending when the present application was filed.
16. It is urged by Shri Venkata Subba Rao, learned counsel for the appellant, that as there was no request in the petition for a revival of (). P. 57/1960, the respondent could not be given that relief. We cannot give weight to this argument. For one. thing, there is no need to ask for a revival of that application. This application would serve to remind the Court of the pendency of the prior application, and to call its attention to the fact that the petition was to he proceeded with.
17. In Suppa Heddiiir v. Avndai Ammal, ILR 28 Mad 50 a Full Bench of the Madras High Court held that if an execution application is improperly dismissed a subsequent application to revive or continue the application is governed by Article 181 of the Limitation Act of 1908, since there was no dismissal of that petition, but it was only closed, presumably for statistical purposes, and there was no need for revival of that application.
18. Even assuming it was necessary to do so, the recitals in the petition are sufficient to serve the purpose. In paragraph 6 of his petition, reference is made to O. P. 57/1960. It was alleged there that
'owing to the inability of the petitioner to attend on the dates of hearing, this Honourable Court has (was) pleased to dismiss it with the observation that the petitioner may renew the petition after coming from Kashmir. Hence there is no bar for the maintainability of the petition.'
This in our opinion can be treated as a reminder In the Court about the prior proceedings. The absence of a formal request to revive it does not materially affect the matter.
19. Shri Venkata Subba Rao maintains that the decisions cited above relate to Article 181 or 182 of the Limitation Act. We do not think that there is any substance in this contention. These rulings interpret the orders either 'recorded', or 'struck off' or, 'closed' and consider the effect of the improper dismissal not sanctioned by law. Articles 181 and 182 of the Limitation Act do not contain the words of this description. It is in the context of the determination of the question whether they amount to final orders or not that these principles were laid down. So the doctrine of those cases applies in the instant case with full vigour.
20. For these reasons, we negative the first bimb of the argument.
21. This takes to the question whether the Subordinate judge had not applied his mind to Section 23 of the Hindu Marriage Act as submitted by Sri Venkata Subbarao. We are not impressed with this argument either. The mere fact that no reference is made to Section 23 does not imply that he was unmindful of the duty cast on a court by Section 23. Shri Venkata Subba Rao urges that Section 23 requires a Court functioning under the Hindu Marriage Act to endeavour to bring about a reconciliation between the parties. What is the reconciliation which could be brought about in this case? It can only be in the shape of bringing the parties together and make them live together and that is achieved only by granting restitution of conjugal rights. It is only in cases where the relief of judicial separation or divorce is asked for by one of the parties, the court should try to avoid the granting of a relief and see if it is possible to bring them together. Moreover, it is not clear as to whether the trial Court has endeavoured 'to bring about a reconciliation between the parties' -- In this situation the argument based upon Section 23 is unavailable to the appellant.
22. The only controversy that survives is as to the consequences of the order awarding maintenance in M. C. 91/1960. As observed by the trial Court, copies of these proceedings were not filed therein and in these circumstances, it could not judge the effect of those proceedings. The trial Court further held that any finding, given by a First Class Magistrate under Section 188 of the Criminal Procedure Code would not bar a petition like this, since the First Class Magistrate could not entertain an application under Section 9 of the Hindu Marriage Act.
23. An application under Order XLI Rule 27 was filed by the appellant for admission of these documents as additional evidence. The argument advanced by Sri Venkatasubbarao in regard to this matter is that although this application cannot be covered either by Clause (a) or (b) we should admit them, as these documents would throw a flood of light on this enquiry and would enable us to do justice to the parties. Since he says that they furnish conclusive evidence of the cruel treatment meted out by the husband to the wife, we felt we should look into them to enable us to decide the issue and so we admitted the order of the Court as Ex. A, 1. Further this request was not opposed by the opposite side.
24. The order reveals that (be basis of the petition under Section 488 Cr. P. C. was that in the litigation between herself and her father, her husband was putting pressure on her to compromise it. It is true that she adduced some evidence to show that her husband was ill-treating her but the First Class Magistrate was not prepared to accept this evidence and he observed that the witness was admittedly a friend of the petitioner therein. He observed:
'But the fact remains that the 1st petitioner came away from Kurnool in the year 1957. From then she was not taken back by the respondent. Absolutely no evidence was let in on the side of the respondent to prove that he made any attempts to take her back and she refused to join him.'
25. This passage indicates the main ground upon which the prayer for maintenance was granted. The learned Magistrate also found on the several letters relied on by the husband, that he wanted to nominate his wife for the G. P. F. and insurance and that the respondent therein i.e., the husband, was sending money to his children prior to March 1960; but he ceased to send money thereafter, For this reason he held that subsequent to March 1900 he neglected to maintain his children. It should be remembered that this application was filed sometime in 1960. There, it was the case of the wife that her husband did not send money subsequently, because the children were living with her. This judgment had become final and we are not now called upon to consider its correctness. But that judgment does not disclose that the husband treated his wife cruelly or sent her away from his house. On the contrary it establishes that it was the wife that left him, her excuse being that he was bringing pressure on her to compromise the litigation with her father. The learned Magistrate thought that It was the duty of the husband to induce his wife to rejoin him and having failed to do so, he was obliged to pay his wife separate maintenance. We are unconcerned with the soundness of this reasoning in this enquiry. However that does not furnish any excuse to the wife to withdraw from the society of her husband. We fail to see how on the basis of the order in M. C. No. 91 of 1960 she could plead a reasonable excuse to live away from her Husband. Further at no time she had expressed her willingness to rejoin her husband. (26) For these reasons, we think that the order of the Subordinate Judge is not successfully impugned. It follows that it should be upheld and the appeal is dismissed. In the circumstances of this case, we make no order as to costs.