1. It was a case of specific performance, in which earlier a suit of permanent injunction was filed.
2. Later on with the permission of court with the liberty to file fresh case was granted by court despite opposition on the basis of Order 2 rule 2.
3. Opposite party moved to HC the issue of Order 2 rule 2 but it was dismissed by HC.
4. In specific performance case in lower court, again most of the defendant stand is again order 2 rules 2, which was fixed as an issue, but lower court decreed the case with cost.
5. Now case is in appeal in district court and main plea is again order 2 rules 2. Point raised is that “In the original permanent injection case application, it was not mentioned that later on specific permission case can be filed”. Therefore court cannot give permission to withdraw and file fresh suit.
My query is
1. How much his stand is valid when thrice, two times in lower court and one time in HC, he has failed?
2. Even if his stand has some point, can such a small procedural omission can destroy my case?
3. Can we raise issue of “Res judicata” here ?