THE HON’BLE SRI JUSTICE B.PRAKASH RAO AND THE HON’BLE SRI JUSTICE G.CHANDRAIAH C.C.C.A.No.204 OF 2005 And C.C.C.A.M.P.No.690 of 2005 JUDGMENT: (per B.PRAKASH RAO,J) The appellant herein who is the unsuccessful plaintiff filed this appeal under Section 96 C.P.C. inter alia seeking to assail the correctness of the judgment and decree dated 20.03.2004 in O.S.No.49 of 1999 on the file of the I Additional Chief Judge, City Civil Court, Secunderabad dismissing the suit filed by it for recovery of 10,52,442/- from the respondent/defendant together with future interest at the rate of 24% per annum. The case of the appellant in brief is that he is the builder and the defendant is the owner of the property in question, in respect of which development activity has taken place. It is in pursuance of the said transaction, the amount falls due and thus the appellant/plaintiff would be entitled to realise the said amount, which is being denied by the defendant for some reasons. Hence, the suit was filed. The suit was contested by the respondent/defendant by filing the written statement denying about his liability. A specific plea about bar under Order II Rule 2 C.P.C. was taken having regard to the earlier suit proceedings in O.S.No.343 of 1997 on the file of the I Junior Civil Judge, City Civil Court, Secunderabad. In view of the aforesaid allegations as contained in the respective pleadings, the Court below framed the following issues: 1) “Whether the defendant caused loss to the plaintiff as alleged by the plaintiff? 2) Whether the plaintiff is entitled to the decree as prayed for? 3) To what relief?” During the course of trial, on behalf of the appellant/plaintiff, PW1 was examined and Exs. A1 to A6 were marked. On behalf of the respondent/defendant, DW1 was examined and Exs.B1 and B2 were marked. The Court below on considering the entire evidence and the material available on record gave a finding that the earlier suit constitutes a bar under Order II Rule 2 C.P.C. and rejected the claim. Hence, the appeal. During the pendency of this appeal, the appellant has filed an application in CCCAMP.No.690 of 2005 under Order XLI Rule 27 C.P.C. inter alia seeking to allow the application filed to receive the certified copy of the order in I.A.No.620 of 1997 in O.S.Sr.No.2709 of 1997 on the file of the I Junior Civil Judge, City Civil Court, Secunderabad dated 10.04.1997 whereunder the application filed by the appellant/plaintiff seeking permission to file the said suit for simplicitor injunction with a right to file appropriate suit or proceedings or applications for other remedies that are available under law to the appellant against the respondent was ordered. After hearing the learned counsel and perusing the material available on record, the only question which falls for consideration is whether on the facts and circumstances of the case, the appellant is entitled to the suit claim. Before going into the merits of the case, the fact remains that the Court below held that the appellant is not entitled to maintain the suit as the earlier suit in O.S.No.343 of 1997 constitutes a bar under Order II Rule 2 C.P.C. The additional evidence, which is now sought to be produced has not been produced before the Court below. In view of the fact that the appellant has obtained permission at the threshold i.e., before filing of the earlier suit for injunction which has been numbered as OS. 343 of 1997, the petition is allowed. Certified copy of the order in I.A. No. 620 of 1997 in O.S.Sr.No.2709 of 1997 on the file of the I Junior Civil Judge, City Civil Court, Secunderabad dated 10.04.1997 is received as additional evidence and the same is being marked as Ex.A7. After taking into consideration the said permission, which has been obtained by the appellant before filing of the earlier suit, the objection of the court below no longer sustains and the claim requires to be adjudicated afresh. Therefore, we are of the view that the matter requires to be remanded to the Court below for fresh consideration. In the circumstances, without expressing any opinion on the merits of the case, the appeal is allowed. Judgment and decree of the Court below is set aside and the matter is remitted to the court below for disposing it of in accordance with law and after giving opportunity of hearing to both sides within a period of three months from the date of receipt of a copy of this order. No costs. ________________ B.PRAKASH RAO,J ______________ G.CHANDRAIAH,J Dt. 19.01.2011 lvl THE HON’BLE SRI JUSTICE B.PRAKASH RAO AND THE HON’BLE SRI JUSTICE G.CHANDRAIAH C.C.C.A.No.204 of 2005 & C.C.C.A.M.P.No.690 of 2005 (per B.PRAKASH RAO,J) Dt. 19.01.2011