Smt. G Upakari Rani Vs Sri. G. Harry

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NC: 2025:KHC:30759 RFA No. 1162 of 2023

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7^TH DAY OF AUGUST, 2025

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BEFORE

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THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA REGULAR FIRST APPEAL NO. 1162 OF 2023 (INJ)

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BETWEEN:

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SMT. G UPAKARI RANI W/O MUNISWAMY AGED ABOUT 71 YEARS R/O NO.952, 1ST MAIN ROAD 9TH CROSS, DIVANARAPALYA GOKUL EXTENSION, YESHWANTHPUR BENGALURU-560054.

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…APPELLANT

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(BY SRI. SHARATH S. GOGI, ADVOCATE) AND:

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Digitally signed by MAHALAKSHMI B M Location: HIGH COURT OF KARNATAKA

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SRI. G. HARRY S/O LATE J A GABRIEL AGED ABOUT 75 YEARS R/A NO.905/A, 2ND MAIN 9TH CROSS, DIWANARA PALYA BENGALURU-560054.

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SMT. DORATHY SHEELA D/O G HARRY AGED ABOUT 42 YEARS W/O ARUN DENNIS R/O NO.982, 9TH CROSS IST MAIN, DIWANARA PALYA BENGALURU-560054.

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HC-KAR

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SRI M JOSEPH PRABHAKAR S/O LATE MELCHIOR AGED ABOUT 58 YEARS R/O NO.943, 2ND MAIN 3RD CROSS, DIWANARA PALYA BENGALURU-560054.

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SRI JOSEPH AMRITHRAJ S/O G IRUDIA RAJ AGED ABOUT 47 YEARS R/O NO.870/2, 9TH CROSS DIWANARA PALYA BENGALURU-560054.

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SMT. SHIRLEY SUNITHA D/O G IRUDIA RAJ W/O TILAK AGED ABOUT 39 YEARS R/O NO.870/2 9TH CROSS, DIWANARA PALYA BENGALURU-560054.

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…RESPONDENTS

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(BY SRI. SANJAY G., ADVOCATE FOR R1 TO R5)

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THIS RFA IS FILED UNDER SECTION 96 OF THE CPC, AGAINST THE ORDER DATED 14.03.2023 PASSED IN OS.NO.26007/2020 ON THE FILE OF THE XII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, MAYOHALL UNIT BANGALORE, REJECTING THE SUIT AS BARRED BY PROVISO TO SECTION 34 OF THE SPECIFIC RELIEF ACT.

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THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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NC: 2025:KHC:30759 RFA No. 1162 of 2023

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HC-KAR

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CORAM: HON'BLE MRS. JUSTICE K.S. HEMALEKHA

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ORAL JUDGMENT

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The point that falls for consideration in this appeal is:

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“ 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?”

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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).

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Learned counsel for the appellant submits that

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the present suit O.S.26007/2020 is maintainable as it challenges the validity of the alleged Wills are void in law

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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.

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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 coplaintiff 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.

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Suit is one for declaration that six alleged Wills dated 18.12.2018 executed by late Louisa Manohari

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(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 :

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HC-KAR

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“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?”

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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.

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7. Sequence of Events

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i. The plaintiff along with her siblings, had earlier instituted a suit in O.S.No.3611/2020 seeking partition and separate possession of the properties standing in the name of late Louisa

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HC-KAR

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Manohari and for declaration that the six alleged

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Wills dated 18.12.2018 were null and void.

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ii. The present plaintiff was originally arrayed as plaintiff No.5 in the said suit and subsequently by filing an application was transposed as defendant No.9.

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iii. In O.S.No.3611/2020, the defendants (beneficiaries of the Wills) filed a memo undertaking not to alienate/encumber or create third party rights in the suit schedule property during the pendency of the suit.

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iv. Thereafter the present plaintiff initiated the following successive suits:

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(a) O.S.25905/2020 – suit for injunction and declaration that co-trustees are unfit.

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(b) O.S.25957/2020-suit for injunction against her brother Harry in which interim order was vacated and the suit was later withdrawn as not pressed.

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HC-KAR

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(c) O.S.26007/2020 – present suit – suit

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seeking declaration that six Wills are null and void and not binding on the plaintiff, with amendment applications – I.A.No.8 (for partition relief) and I.A.No.9 (for impleadment of parties of O.S.3611/2020 as defendants)

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v. Defendants filed objections to I.A.Nos. 8 and 9.

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vi. That a comprehensive suit in O.S.No. 3611/2020 is pending adjudication between the same parties, same cause of action and same subject matter.

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The present suit on meaningful reading of the

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plaint does not disclose any independent or fresh cause of action distinct from what has already been pleaded and is pending adjudication in an earlier instituted suit. The plaintiff, being already a party to the earlier suit involving the same properties, parties and reliefs, cannot by a separate proceedings seek to reframe or isolate an issue already subject to adjudication. The Apex Court in the

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NC: 2025:KHC:30759 RFA No. 1162 of 2023

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HC-KAR

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case of T.Aravindanam vs T.V.Satyapal¹

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(Aravindanam) observed as under :

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“5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentantly resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now, pending before the First Munsif's Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful-not formalreading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, be should exercise his power under Or. VII r. 1 1 C.P.C. taking care to see that the ground mentioned therein is fulfilled. And, if clever, drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order X C.P.C. An activist Judge is the answer to irresponsible law suits. The trial court should insist imperatively on examining the party at the first bearing so that bogus litigation can be shot down at the earliest stage. The Penal Code (Ch. XI) is also

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1 AIR 1977 SC 2421

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resourceful enough to meet such men, and must be triggered against them. In this case, the learned Judge to his cost realised what George Bernard Shaw remarked on the assassination of Mahatma Gandhi "It is dangerous to be too good."

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Thus, the settled proposition of law is that where a plaint is found to be manifestly vexatious and illusory in the sense that it does not disclose a clear right to sue, and where the litigation is clearly intended to overreach or circumvent pending proceedings the Court must reject the plaint at the threshold under Order VII Rule 11 CPC. Accordingly, in light of the principle laid down in Aravindanam (supra) and in light of the provisions of Order VII Rule 11 CPC, the suit O.S.No.26007/2020 is not maintainable and is rightly rejected by the Trial Court under Order VII Rule 11 CPC and the same does not warrant any interference and hence the following :

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ORDER

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(i) The Regular First Appeal is dismissed .

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