RANGASAMI GOUNDAN Vs. K R RANGAI GOUNDAR

JUDGEMENT

(1.) The defendant is the appellant in this Court and the appeal is directed against an order of remand passed by the learned District Judge of Coimbatore. The question for consideration is as to the proper construction of Order 2, Rule 2, Civil P. C. The facts necessary to appreciate the point raised lie in a very narrow compass. The defendant, who is the appellant here, executed a usufructuary mortgage in favour of the plaintiff-respondent on 21-9-1944 for a sum of Rs. 1000/-, and under the terms of this document the mortgagee was to continue in possession for a period of nine years and the mortgage was to be discharged by the mortgagee appropriating to his use the income to be derived from the property. But the mortgagor did not admittedly deliver possession of the properly to the mortgagee. Consequently the mortgagee filed O. S. No. 304 of 1948 for the recovery or the consideration which he paid to the mortgagor. This suit was defended on the ground that a suit for recovery of the consideration was not maintainable, but mat the plaintiff, that is the mortgagee, should institute a suit for recovery of possession. This pica of the defendant was accepted and the suit O. S. No. 304 of 1948 was dismissed. In accordance with the objection raised to the previous suit by the mortgagor, the mortgagee has filed the present suit for possession of the mortgaged property. Several defences were raised to this action on the merits and along with them a preliminary objection was raised that the suit was not maintainable on the ground that it was barred under Order 2, Rule 2, Civil P. C.

(2.) This issue about the applicability of Order 2, Rule 2 to the present case was tried as a preliminary issue and the learned Subordinate Judge of Coimbatore dismissed the suit upholding the preliminary point raised by the defendant. The plaintiff thereupon appealed to the District Court and the learned district Judge has reversed this judgment and decree of the learned Subordinate Judge holding that the suit was not barred and has remanded the suit for trial to the Subordinate Court. It is as against this order of remand that the defendant has preferred this appeal to this Court.

(3.) Notwithstanding that the defendant raised this objection about Order 2, Rule 2, ho placed before the Court no evidence regarding the pleadings in the previous action. The plaint in O. S. No. 304 of 1948, which is the whole basis of this plea or objec-tion under Order 2, Rule 2 was not made available to the Court, but he was content to proceed upon the Statement in the plaint regarding the nature of the previous action and it is on this basis that both the trial Court as well as the District Court on appeal, have proceeded with the matter. I consider that this was a most unsatisfactory procedure to have adopted. When a party takes a defence like an objection under Order 2, Rule 2 or of res judicata, it is essential that he should place before-the Court the best evidence to support such a plea. In the case of 'res jndicata' it has been repeatedly held both by the High Court and by the Privy Council that it is essential that the party pleading it should place before the court the judgment in the previous action as well as the pleadings so as to focus the attention of the Court on the pleadings in the previous case, the issues raised as well as the decision rendered on them. Similarly, in the case of an objection under Order 2, Rule 2, it is essential for the Court to know what exactly was the cause of action which was alleged in the previous action in order that it might be in a position to appreciate whether the cause of action alleged in the second suit is identical with the one that was the subject-matter of the previous action. In the absence of these pleadings, the defendant ought not to have been permitted to raise this objection under Order 2, Rule 2