Important Points:
The declaratory relief over petition A and B scheduled properties though the O.P. claiming declaratory relief on the same cause of action was found to be barred by Order IX Rule 9 of the C.P.C. Since declaratory relief cannot be re-agitated based on the same cause of action that arose in Ext.B1 O.P., the court below rightly found that the relief is barred by Order IX Rule 9 of the C.P.C. -The Cross Objection filed by the respondent merits acceptance-Do not undertake the exercise of examining the merit of the rival cases advanced by both sides as to the legal effect of Exts.A12 and A13 documents-The appellant is precluded from pursuing the declaratory relief with respect to plaint A and B scheduled properties in view of the legal bar flowing out of Order IX Rule 9.

T.V. ANILKUMAR, J.

1. This appeal is filed by the petitioner (wife) in O.P.No.747/2008 on the files of the Family Court, Thiruvananthapuram. She filed the original petition for dissolution of marriage, against the respondent (husband) on the grounds of cruelty as well as desertion. She had also claimed declaration in respect of petition A and B scheduled properties, that those are properties though being acquired in the joint names of the spouses, exclusively owned by her. The Family Court, Thiruvananthapuram dismissed O.P.No. 747/2008 by the impugned judgment, dated 11.8.2015 on the solitary ground that the O.P. was barred by Order IX Rule 9 of the C.P.C., despite some of the findings with respect to other issues having been considered on merits and answered in favour of the appellant.

2. The appellant had formerly instituted O.P.No.726/2004 before the same Family Court for dissolution of her marriage with the respondent/husband on the same grounds of cruelty and desertion and also for a declaration that she is the exclusive title holder of petition A and B scheduled properties. That O.P. was dismissed for default through Ext.B2 judgment, on 30.5.2005. It is based on Ext.B2 judgment, that the court below dismissed the present O.P. by applying the legal bar provided under Order IX Rule 9 of the C.P.C. However, on merits, the court below found that grounds of cruelty and desertion were proved while it held that the appellant/wife failed to prove exclusive title over petition B scheduled property acquired by virtue of Ext.A13 sale deed, dated 3.4.2000 in the joint names of spouses from her father. As regards the A schedule, it held that, the absolute title vested in her alone and the respondent/husband was only a name lender to Ext.A12 settlement deed, dated 19.1.1999 executed by her father in the names of both spouses.

3. The appellant/wife is aggrieved by the impugned judgment in as much as it dismissed O.P.No.747/2008 on the solitary ground of the legal bar provided under Order IX Rule 9 of the C.P.C. The respondent had filed the above Cross Objection challenging the findings entered by the court below on merits adjudicating upon the grounds for dissolution of the marriage as well as deciding the disputed title over petition A and B scheduled properties as if the court was bound to have dismissed the O.P. at the threshold itself solely based on the bar provided under Order IX Rule 9 of the Code.

4. Parties are Hindus, having solemnized their marriage on 7.5.1999. A female child born to them is now studying in IInd Std: The respondent/husband is a KSRTC driver. The appellant is an Assistant in the Agricultural Department. Appellant's case is that the respondent is a sadist by nature, who treated her with cruelty in various ways all throughout her life, ever since the date of marriage. The spouses shifted their residence to Thiruvananthapuram and while so she got an employment as Agricultural Assistant on 19.2.2004 in Thrissur. The respondent who was not happy over the appellant being employed, took an adamant stand requiring her to resign the job, which she refused. As a result, he deserted her and started living separately since 19.2.2004. He made allegations of illicit relationship connecting her with several persons and ultimately she was forced to file O.P.No.726/2004 for dissolution of marriage before the Family Court, Thiruvananthapuram. According to her, quite unfortunately, the said O.P. was dismissed for non prosecution, on 30.5.2005. Even after dismissal of that case, she had to face various acts of cruelties at the hands of respondent, which compelled her to institute O.P.No.747/2008 again on the ground of cruelty based on various incidents occurred after dismissal of O.P.No.726/2004.

5. She has narrated three incidents in the O.P. and claimed desertion also as one of the grounds for dissolution. She said that on 14.5.2008, while she was travelling in a KSRTC Bus, somebody from behind snatched away her thali ch