: 1 : SD IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CIVIL CIVIL CIVIL APPLICATION NO.1610 OF 2008 APPLICATION NO.1610 OF 2008 APPLICATION NO.1610 OF 2008 IN IN IN FIRST FIRST FIRST APPEAL NO.87 OF 2005 APPEAL NO.87 OF 2005 APPEAL NO.87 OF 2005 Jaivantrao Tulshiram Bhandare ...Applicant V/s. Babitabai Narayan Korake & Ors. ...Respondents Mr.A.Y. Sakhare, Sr. Advocate, with Mr.Y.A. Sakhare and Siddharth Karpe for the Applicant. Mr.Ajay Joshi with Mr.Vilas Tapkir for Respondent No.1. CORAM CORAM CORAM : K.K. TATED, J. : K.K. TATED, J. : K.K. TATED, J. DATE DATE DATE : 18TH OCTOBER, 2008. : 18TH OCTOBER, 2008. : 18TH OCTOBER, 2008. P.C.: P.C.: P.C.: . The applicant original-appellant, preferred the present Civil Application for injunction restraining the respondents from creating any third party right, title and interest in respect of the agricultural land bearing Gat No.360/A-2 admeasuring 2 Hectares 40 Ares situated at Village Vakhari, Taluka Pandharpur, District Solapur. It is the case of the applicant that he filed Special Civil Suit No.35 of 1997 in the Court of Civil Judge Senior Division, Pandharpur for specific performance of the contract on the basis of the agreement for sale dated 27th November, 1993. By Judgment and Decree dated : 2 : 5th October, 2004 of the trial court, the suit was partly decreed. The original defendant No.1 was directed to pay a sum of Rs.50,000/- alongwith interest @ 18% p.a. to the applicant-original plaintiff from the date of the agreement of sale i.e. 27th November, 1993 till the realization of the principal amount. Against the said order dated 5th October, 2004, the applicant preferred above mentioned First Appeal. 2. The First Appeal was admitted on 19th January, 2005. At that time the applicant preferred Civil Application No.181 of 2005 for injunction. At that time this Hon’ble Court passed order dated 11th February, 2005 and granted interim relief in terms of prayer clause (b) of Civil Application No.181 of 2005. The said interim order came to be vacated by order dated 23rd February, 2007 for non removal of office objection. Thereafter, the applicant preferred Civil Application No.2152 of 2007 for injunction restraining the respondents from transferring, alienating or disposing of and/or creating third party interest of whatsoever nature in the suit property. In the said application, the applicant in paragraph No.6 made averment that he learnt from outside source that respondents are : 3 : intended to create third party interest in respect of the suit property. The said Civil Application No.2152 of 2007 came to be dismissed by order dated 16th October, 2007. In the order dated 16th October, 2007 this Hon’ble Court recorded that the suit was filed after expiry of three years for the specific performance only in reference to share of respondent No.1. Considering the other facts, the Civil Application No.2152 of 2007 came to be disposed of. Thereafter the applicant preferred present Civil Application No.1610 of 2008 for following reliefs :- "(a). rule be issued; (b). the Respondents, their servants, agents be restrained by an order of injunction of this Honourable Court from transferring, alienating and disposing off and/or creating a third party interest of whatsoever nature in the suit property being agricultural land bearing Gat No.360/A-2 admeasuring 2 H. 40 ares situated at Village Vakhari, Taluka Pandharpur, District Solapur. (c). pending the hearing and final disposal of the First Appeal, the Respondents, their servants, agents be restrained by an order of injunction of this Honourable Court from transferring, alienating and disposing off and/or creating a third party interest of whatsoever nature in the suit property being agricultural land bearing Gat No.360/A-2 admeasuring 2 H. 40 ares situated at Village Vakhari, Taluka : 4 : Pandharpur, District Solapur. (d). ad-interim relief in terms of prayer clause (c) above be granted; (e). costs of this Civil Application be provided for. (f). pass such other and further reliefs as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case." 2. It is the case of the applicant that in view of the subsequent development, he preferred the present Civil Application for injunction. It is stated in paragraph No.4 of the Civil Application that he learnt from Mr.Shinde Nagesh Pandurang that one Mr.Dilip Mahadev Kokate is intending to purchase the suit property by entering into agreement with the respondents. On the basis of the said information, the applicant preferred the present Civil Application for injunction. 3. Advocate appearing for the respondents vehemently opposed the present Civil Application on the ground that previously two Civil Applications for the same reliefs were preferred by the applicant and both the Civil Applications came to be disposed of by this Hon’ble Court. Therefore, the applicant is not entitled to any relief in the present Civil Application. : 5 : 4. Advocate appearing on behalf of the applicant relied on the judgment in the matter of M/s.Laxmi & Co. V/s. Dr.Anant R. Deshpande & Anr. reported in (1973) 1 SCC 37 on the point that the applicant can prefer fresh application on the basis of new subsequent developments. The learned Advocate appearing on behalf of the applicant relied on paragraph No.27 of the said judgment as under :- "27. It is true that the Court can take notice of subsequent events. These cases are where the court finds that because of altered circumstances like devolution of interest it is necessary to shorten litigation. Where the original relief has become inappropriate by subsequent events, the Court can take notice of such changes. If the court finds that the judgment of the Court cannot be carried into effect because of change of circumstances the Court takes notice of the same. If the Court finds that the matter is no longer in controversy the court also takes notice of such event. If the property which is the subject-matter of suit is no longer available the court will take notice of such event. The court takes notice of subsequent events to shorten litigation, to preserve rights of both the parties and to subserve the ends of justice. Judged by these principles it is manifest that in the present case suits are pending. On the one hand the appellant has challenged the decree obtained by Ashar and others as also the warrant of execution.On the other hand, the suit instituted : 6 : by Ashar and others against inter alia the appellant in 1965 for possession is pending. This Court cannot say with exactitude that any final decision has been reached on the respective and rival rights and claims of the appellant and the respondent. It is, therefore, neither desirable nor practicable to take notice of any fact on the rival versions of the parties as to subsequent events." 5. Advocate appearing on behalf of the respondents opposed the prayers in the present Civil Application on the ground that previously twice this Hon’ble Court rejected similar prayers in Civil Application No.181 of 2005 and Civil Application No.2152 of 2007. Advocate appearing on behalf of the respondents relied upon the judgment in the matter of C.V. Rajendran and Anr. V/s. N.M. Muhammed Kunhi reported in (2002) 7 SCC 447. Particularly he has relied on paragraph No.6 of the said judgment as under :- "6. We may add that Section 105 of the Code of Civil Procedure, 1908 specifically provides that any error, defect or irregularity in any order affecting the decision of the case may be set forth as a ground of objection in the memorandum of appeal which may be preferred against the original decree; orders in the nature of amendment of pleadings; late admission of documents at a later stage; admission of additional evidence and the like are orders : 7 : interlocutory in nature which can be challenged by raising a ground of objection in the memorandum of appeal which may be preferred against the original decree. Sub-section (2) of Section 105 CPC deals with an order of remand and provides that notwithstanding the provisions of sub-section (1), where any party aggrieved by an order of remand from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness. Here what is sought to be reagitated is not really the order of remand but the order deciding a germane issue which was allowed to become final at an earlier sage of the same suit. The principle of res judicata applies as between two stages in the same litigation so that if an issue has been decided at an earlier sage against a party, it cannot be allowed to be reagitated by him at a subsequent stage in the same suit or proceedings. This position is laid down in Hope Plantations Ltd. v. Taluk Land Board to which one of us (Syed Shah Mohammed Quadri, J.) was a party." 6. Considering the above mentioned facts and circumstances, it is clear that the applicant’s previous two Civil Applications for similar reliefs are decided by this Hon’ble Court. In any case there is no any fresh subsequent event in the present case on which the applicant can prefer any application. Considering these facts, the Civil Application is dismissed. : 8 : [K.K. [K.K. [K.K. TATED, J.] TATED, J.] TATED, J.]