MAN MOHAN DAS Vs. SHIB CHANDRA SAHA

JUDGEMENT

(1.) This is an appeal by the defendant Man Mohan Das from a decision of the District Judge of Tipperah confirming a decision of the Subordinate Judge of Tipperah and arises out of two cross suits between the appellant and one Shib Chandra Saha and others relating to certain transactions in jute. The defendant-appellant is a bepari or trader, and the plaintiffs. now respondents, are jute brokers. In his suit (No. 2 of 1925) the appellant claimed that there was a balance of Rs. 3,139-4-0 due to him for jute supplied, whereas the Sahas alleged that Man Mohan had taken money from them in excess of jute supplied and claimed Rs. 1,638 from him.

(2.) The suits were consolidated and tried together, only one set of issues being framed.

(3.) The trial Court dismissed Man Mohan's suit and partially decreed the Sahas suit for Rs. 1,492-7 O. Man Mohan thereupon appealed to the District Judge not against the decrees in both suits, but only against the decree in Suit No. 68. When the appeal was first heard there was an application for the. reception of additional documentary evidence and the learned District Judge giving effect thereto remanded the case to the trial Court for taking additional evidence and recording finding thereon. Thereafter the case came back to the District Judge and objection was then taken to the competency of the appeal on the ground that no appeal having been preferred against the decision in the cross suit, that judgment must be deemed to stand unchallenged, and that therefore the principle of res judicata acted as a bar to the hearing of the appeal. The learned District Judge gave effect to this contention and dismissed the appeal. That decision is now challenged in second appeal and two main points have been urged on behalf of the appellant: (1) Firstly it is argued that the Court of appeal below erred in holding that the appeal was barred by the rule of res judicata and; secondly that the learned District Judge having once remanded the case for investigation into the merits had no jurisdiction to reject the appeal on. a preliminary point.