A suit cannot be maintained independently if it re-agitates issues already pending in another suit involving the same parties and subject matter.

JUDGMENT :

K.S. HEMALEKHA, J.

The point that falls for consideration in this appeal is:

“Whether the suit filed by the plaintiff seeking declaration is maintainable in the absence of prayer for further consequential reliefs, particularly when a separate suit for partition O.S.3611/2020 is pending adjudication?”

2. Assailing the legality and correctness of the order dated 14.03.2023 in O.S.26007/2020 on the file of the 13^th Additional City Civil and Sessions Judge, Mayohall Unit, Bengaluru, (‘Trial Court’ for short), the plaintiff is before this Court in this Regular First Appeal. By the impugned order, the Trial Court exercising suo moto power under Order VII Rule 11 (d) of CPC rejected the plaint as barred by proviso to Section 34 of the Specific Relief Act (‘Act’ for short).

3. Learned counsel for the appellant submits that the present suit O.S.26007/2020 is maintainable as it challenges the validity of the alleged Wills are void in law and such relief can be pursued irrespective of pendency of other proceedings. It is argued that the applications have been filed (I.A.Nos.8 and 9) seeking further relief by adding that the plaintiff is entitled for partition and separate possession in the suit property.

4. Per contra, learned counsel for the respondents submits that a comprehensive suit is already pending in O.S.No. 3611/2020 wherein the plaintiff was initially a co- plaintiff and later she transposed herself as a defendant. The subject matter, parties and reliefs substantially overlap with the present suit and the present suit is nothing but re-agitating the same cause of action under a different label. It is submitted that the relief now sought could be agitated in the suit O.S.No.3611/2020 and the present suit is not maintainable, rightly rejected by the Trial Court.

5. Suit is one for declaration that six alleged Wills dated 18.12.2018 executed by late Louisa Manohari (plaintiff’s sister) are null and void. The plaint avers that the properties stand in the name of Louisa Manohari, who is now deceased. The Trial Court while considering certain application filed by the plaintiff had expressed opinion regarding the maintainability of the suit for mere declaration in respect of the Will without seeking relief of partition. Thereafter, plaintiff filed I.A.No.8 for amendment to convert the suit into partition and I.A.No.9 for impleading other legal heirs of the deceased. Objections were filed by defendant No.2 stating that the plaintiff along with the proposed defendants have already instituted a suit for partition and separate possession of the properties which are bequeathed by the deceased Louisa Manohari in favour of defendant Nos.1 to 5 and the suit is filed before the Additional City Civil and Sessions Judge in O.S.No.3611/2020. The Trial Court after the objections were filed the matter was also heard on the maintainability of the suit. The Trial Court framed the following point for consideration :

“Whether the present suit is maintainable or in other words whether, on basis of the plaint averments, whether the suit is hit by proviso to Section 34 of the Act?”

6. The Trial Court found that the suit is not maintainable without consequential prayer for partition and for possession and falls within the mischief of the proviso to Section 34 of the Act. The Court further observed that when there is already a suit for partition pending in O.S.No.3611/2020 in which the plaintiff herein is also a party, I.A. No.8 filed for similar relief of partition in the present suit would serve no purpose and rejected the plaint under Order VII Rule 11 (d) CPC holding it is barred by law, i.e., barred by proviso to Section 34 of the Act.

7. Sequence of Events

i. The plaintiff along with her siblings, had earlier instituted a suit in O.S.No.3611/2020 seeking partition and sepa