1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.106 OF 2009 WITH CIVIL APPLICATION NO.75 OF 2009 Smt. Hashmatbi Abbas Kazi & Anr. ..Appellants. v/s. Smt. Fatimbabi Musa Kazi & Anr. ..Respondents. Mr.G.V.Limaye for Appellants. Mr.R.C.Dhru for Respondents. CORAM:- A.M.KHANWILKAR, J DATED :- SEPTEMBER 10, 2009. P.C. 1. Heard Counsel for the parties. 2. The only grievance made before this Court is that the Suit instituted in the fact situation of the present case was barred by principles of res judicata. Indeed, this contention was canvassed before the Trial Court. The Trial Court has addressed the same as Issue No.5. The Trial Court has recorded more than four reasons to hold that the present suit was not barred by principles of res judicata. Significantly, no grievance was made in the 2 first appeal filed by the Appellant that the finding so reached by the Trial Court is incorrect or manifestly wrong. Presumably, therefore, no such argument was canvassed before the Appellate Court. Inasmuch as, there is no reference of the said contention having been canvassed in the Judgment of the Appellate Court, which is impugned in this Appeal. I am in agreement with the objection raised on behalf of the Respondents that the grievance regarding suit being barred by principles of res judicata is being taken only in the Second Appeal by the Appellants before this Court without challenging the correctness of the finding thereof recorded by the Trial Court in the first instance in first appeal. Counsel for the Appellants submits that it may be assumed that the Appellants had canvassed such argument before the first appeal Court. It is not possible to countenance this submission. As aforesaid, memo of first appeal makes no reference to the ground of suit being barred by principles of res judicata. Similarly, the Second Appeal filed before this Court in no way makes reference that the argument was specifically canvassed before the Appellate Court and yet the first Appellate Court has not dealt with the same. 3. Taking any view of the matter, therefore, the grievance regarding the suit being barred by principles of res judicata cannot be countenanced in 3 the Second Appeal. For the aforesaid reasons, the Appeal fails. The same is dismissed. 4. In view of this order, nothing survives in the Civil Application. The same is also disposed of accordingly. (A.M.KHANWILKAR, J)