KISHORI MOHAN GHOSH Vs. MADHABI MAURH

JUDGEMENT

(1.) This is an application under Article 227 of the Constitution of India in which the present petitioner/defendant has assailed the order passed in Misc. Appeal No. 11 of 2015 by the Additional District Judge, Arambagh within the district of Hooghly as per the order dated 19 -08 -2015 wherein the said Additional District Judge set aside the order of the learned trial court dated 19th March, 2015 as passed by the learned Civil Judge (Junior Division), 2nd Court at Arambagh in Title Suit No. 06 of 2014.

(2.) It is apparent from the record that one application for temporary injunction under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure (hereinafter called as the said code) was filed by the present plaintiff for an order of injunction in respect of the entire 'Ka' schedule property and more specifically so that the defendant may not raise any construction over the 'Ka -1' and the defendant may be restrained from creating the third party interest in respect of that schedule property. The matter was heard extensively and as per the order dated 09 -04 -2014 the learned trial court rejected the said application on contest without any costs. Thereafter another application was filed by the plaintiff on 4th March, 2015 praying for temporary injunction almost on the similar premises with the additional fact that some building materials were stacked. That petition was heard and the learned trial court refused to pass any order of temporary injunction as per order dated 19 -3 -2015. As against the said order, one Miscellaneous Appeal was preferred being Misc. Appeal No. 11 of 2015 which was disposed of by the learned Additional District Judge, Arambagh as per order dated 19 -08 -2015 wherein the learned court of appeal allowed the said appeal on contest and directed that the order No. 19 dated 19 -03 -2015 passed by the learned trial court in that title suit be set aside and the respondent/defendant was restrained by the order of temporary injunction from making any construction and/or changing the nature and character of the suit property and also restrained the defendant from alienating the suit property till the disposal of the suit.

(3.) The matter thereafter came up before this court and C.O. No. 2410 of 2015 was registered under Article 227 of the Constitution of India and on hearing, this court set aside the judgment and order dated 12th June, 2015 and the appeal was remanded back to the court of first appeal for fresh consideration and in the body of the said judgment, it was observed that the first appellate court will take into consideration whether the second application for temporary injunction was barred by principle of res judicata, issue estoppel and the question whether on the identical fact a subsequent temporary injunction can be granted. The court was asked to consider whether in the second application any new fact was pleaded for consideration.