GOVINDA DHARA Vs. RAMKRISHNA BERA

JUDGEMENT

(1.) This appeal at the instance of the defendant is directed aginst a judgment and order dated 24th February, 1989 passed by Shri D.K.Bhattacharya, Assistant District Judge, Ghatal in Title Suit No. 17/88 whereby and whereunder while allowing appeal preferred from a judgment and decree dated 29th June, 1988 passed by Sri T.K.Gupta, Munsif at Ghatal in Title Suit No. 413 of 1976 it was held that the suit of the plaintiff is not barred under Order 2 Rule 2 of the Code of Civil Procedure and remitting the matter back to the learned trial court for hearing the suit on merits.

(2.) The fact of the matter lies in a very narrow compass. The respondent herein had filed a suit which was registered as T.S.No. 217 of 1970 for declaration that the transactions between him and the appellants were loans in substance and not a sale out and out. He in the said suit prayed for redemption as also other reliefs set out in the plaint and the transaction was held to be a loan in substance.

(3.) In the said suit, however, no order on the prayer of redemption was passed by the Court. Relying on or on the basis of the said decree another suit was filed by the respondent for accounts, release of security and restoration of possession. The said suit was registered as Title Suit No. 413 of 1976. Apart from the merit the defendant appellant took a plea that as the reliefs prayed for in Title Suit No. 413 of 1976 having not been taken in the original suit filed by him, i.e. Title Suit No. 217 of 1970 although cause of action for both the suits was the same, the suit was barred under Order 2 Rule 2 of the Code of Civil Procedure.