A maintainability issue may encompass the bar under Order IX Rule 9 CPC.

In a pending divorce proceeding, C.P. No. 88 of 2021, the Family Court framed fourteen issues, including whether the suit was maintainable and whether it was barred by res judicata

After a Division Bench observed that an appropriate issue could be brought for adjudication at trial, the petitioner sought to add five issues, including whether the divorce proceeding was barred under Section 12 and Order IX Rule 9 of the CPC following dismissal of an earlier suit

The Family Court rejected the application, reasoning that the proposed grounds were covered by the existing issues and that separate issues were unnecessary

The petitioner challenged that order by writ petition

1. Whether the Family Court erred in rejecting the request to recast the issues by declining to frame a separate issue on the bar under Section 12 and Order IX Rule 9 of the CPC

2. Whether the issue of maintainability already framed in the divorce proceeding could encompass the petitioner’s contention that the proceeding was barred following dismissal of an earlier suit for default

The Court considered Section 11 and Section 12, and Order IX Rule 9 of the CPC, in relation to the petitioner’s contention that dismissal of an earlier suit for default barred a fresh suit on the same cause of action

It also considered the existing issue on maintainability and the issue on res judicata, as well as the proposed issue concerning rejection of the plaint under Order VII Rule 11 of the CPC

The Court did not state a separate general test for framing or recasting issues; it upheld the Family Court’s view that the existing maintainability issue could address the petitioner’s contention, and indicated that the trial court should consider that stand when deciding the issue

The proposed grounds concerning limitation and res judicata were already covered by the issues framed at trial, while the Family Court considered the Order VII Rule 11 question unsuitable as a separate issue

As to the remaining proposed ground, the High Court accepted that the petitioner’s objection to the maintainability of the proceeding could be considered under the existing maintainability issue. It therefore found no infirmity in refusing to frame an additional issue, while emphasising that the trial court should address the petitioner’s stand when answering that issue

It expressed the expectation that the Family Court would consider the petitioner’s contention concerning maintainability when deciding the existing issue on that question.