1. Being aggrieved by judgment and decree dated 24.04.1992 passed by Civil Judge Jr. Dn., Saoner, dismissing the suit filed by the appellant-plaintiff and confirmed in Reg. C.A. No.197/1992 passed by 2nd Addl. District Judge, Nagpur on 06.03.2000, the unsuccessful plaintiff had filed the instant second appeal. The learned counsel for the appellant, assailing the impugned judgment and decree passed by the lower appellate Court submitted that the lower appellate court has considered only the point of maintainability of second civil suit holding that the second civil suit in the same subject matter was not maintainable and thus dismissed the appeal preferred by the present appellant. She thus submitted that the lower appellate court did not discuss the single point on merits of the suit and dismissed the appeal on the sole ground. According to her, the lower appellate Court being the court of facts and the said appeal being one of right, the lower appellate court was under a duty to decide the suit on merits. Even otherwise, according to her the second suit was maintainable in the light of law in relation to such type of suits.

2. Per contra, Mr. Zoting learned counsel for the