Case: S. Nazeer Ahmed Vs. State Bank Of Mysore

based on the existence of a former pleading cannot be entertained when the pleading on which it rests has not been produced. It is for this reason that a plea of a bar under O.2 r.2 of the Code can be established only if the defendant files in evidence the pleadings in the previous suit and thereby proves to the court the identity of the cause of action in the two suits. In other words a plea under O.2 r.2 of the Code cannot be made out except on proof of the plaint in the previous suit the filing of which is said to create the bar. Without placing before the court the plaint in which those facts were alleged, the defendant cannot invite the court to speculate or infer by a process of deduction what those facts might be with reference to the reliefs which were then claimed. On the facts of this case it has to be held that the plea of a bar under O.2 r.2 of the Code should not have been entertained at all by the trial court because the pleadings in civil suit No. 28 of 1950 were not filed by the appellant in support of this plea. (ii) In order that a plea of a bar under O. 2. r. 2(3) of the Code should succeed the defendant who raises the plea must make out (i) that the second suit was in respect of the same cause of action as that on which the previous suit was based; (ii) that in respect of that cause of action the plaintiff was entitled to more than one relief (iii) that being thus entitled to more than one relief the plaintiff, without leave obtained from the Court omitted to sue for the relief for which the second suit had been filed. It is not necessary to multiply authorities except to notice that the decisions in Sidramappa Vs. Rajashetty & Ors. [(1970) 3 S.C.R. 319], Deva Ram & Anr. Vs. Ishwar Chand & Anr. [(1995) Supp. 4 S.C.R. 369] and State of Maharashtra & Anr. Vs. M/s National Construction Company, Bombay and Anr. [(1996) 1 S.C.R. 293] have reiterated and re-emphasized this principle. 14. Applying the test so laid down, it is not possible to come to the conclusion that the suit to enforce the equitable mortgage is hit by Order II Rule 2 of the Code in view of the earlier suit for recovery of the mid term loan, especially in the context of Order XXXIV Rule 14 of the Code. The two causes of action are different, though they might have been parts of the same transaction. Even otherwise, Order XXXIV rule 14 read with rule 15 removes the bar if any that may be attracted by virtue of Order II Rule 2 of the Code. The decision of the Rangoon High Court in Pyu Municipality Vs. U. Tun Nyein (AIR 1933 Rangoon 158) relied on by learned counsel for the appellant does not enable him to successfully canvass for the position that the present suit was barred by Order II Rule 2 of the Code, as the said decision itself has pointed out the effect of Order XXXIV Rule 14 and in the light of what we have stated above. 15. Then the question is whether the appellant has established that there was a tripartite arrangement come to, by which the bus was made over by him to one Fernandes and Fernandes undertook to the Bank to discharge the liability under the mid term loan. In support of his case, the appellant had only produced Exhibits D1 to D4 which only indicate an attempt to bring about an arrangement of that nature. But they do not show that there was any such concluded arrangement and there was a taking over of the liability by Fernandes as agreed to by the Bank. The fact that the Bank has paid the insurance premium for the bus in question, would not advance the case of the appellant since the Bank, as the hypothecatee of the bus was entitled to and in fact, as a prudent mortgagee, was bound to, protect the security and the insurance of the vehicle effected in hat behalf cannot be taken as a circumstance in support of the plea put forward by the appellant. The trial court, after considering the evidence, rightly noticed that the burden was on the appellant to show that he had handed over the possession of the vehicle to one Fernandes on the intervention of the Bank and on the basis of a tripartite arrangement or taking over of liability by Fernandes and that the liability of the appellant had come to an end thereby. Learned counsel for the Bank rightly submitted that no novation was proved so as to enable the appellant to riggle out of the liability under the loan transaction. The High Court has not interfered with the reasoning and conclusion of the trial court on this aspect and has in fact proceeded to grant the plaintiff Bank a decree for the suit amount based on the equitable mortgage. We were taken through Exhibits D1 to D4 and even a fresh document attempted to be marked in this Court along with its counter affidavit by the Bank. On going through the said documents, the other evidence and the reasoning adopted by the trial court, we are satisfied that there is no evidence to show that there was a tripartite agreement on the basis of which the appellant could disclaim liability based on it. It is seen that the appellant has not even examined Fernandes in support of the plea of the tripartite arrangement and the taking over of the liability of the appellant, by him. In this situation, we see no reason to uphold the plea of the appellant that the liability has been transferred to Fernandes at the instance of the Bank and that the appellant was no more liable for the plaint amount. 16.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]There is no need to have recourse to Order XLI Rule 33 of the Code, in a case where the suit of the plaintiff has been dismissed and the plaintiff has come up in appeal claiming a decree as prayed for by him in the suit. Then, it will be a question of entertaining the appeal considering the relevant questions and granting the plaintiff the relief he had sought for if he is found entitled to it. In the case on hand therefore there was no occasion for applying Order XLI Rule 33 of the Code. If the view of the High Court was that the suit was barred by Order II Rule 2 of the Code, it is difficult to see how it could have resorted to Order XLI Rule 33 of the Code to grant a decree to the plaintiff in such a suit. In that case, a decree has to be declined. That part of the reasoning of the High Court is therefore unsustainable.