Baldevdas Shivlal & Anr vs Filmistan Distributors
CASE BRIEF
Citations:1970 AIR 406, 1970 SCR (1) 435
Case Type: Civil
Case No: Civil Appeal No. 1940 of 1967.
Decided On:29 April, 1969
Petitioner: Baldevdas Shivla & Anr.
Respondent: Filmistan Distributors (India) (P) Ltd. &Ors.
Bench:
Shah, J.C.
Bench:
Shah, J.C.
Mitter, G.K.
Statutes Referred:
Code of Civil Procedure, 1908, ss. 1, 115
S. 92 of the Indian Evidence Act
Cases Referred: Major S. S. Khanna v. Brig.
Facts:
R and F who had a cinema building in Ahmedabad on lease entered on November 27, 1954 into an agreement with respondent no. 1 giving the latter a right to exhibit cinematograph films within the said building. Later respondent no. 1 filed ‘suit No. 149 of 1960 to say his right to exhibit films in the building.
The suit resulted in a compromise decree. In pursuance of the compromise an extra agreement dated December 1, 1960 was executed between the parties. However in 1963 respondent no. one again filed a suit claiming as a sub-lessee or as lessee a right to exhibit films in the said building and praying that the defendants be restrained from interfering thereupon right.
The suit was filed under s. 28 of the Bombay Rents, Hotel and rooming house Rates Control Act, 1947 within the Court of Small Causes. During this suit respondent no. 1 asked the court to try further issues Nos. 11, 12 and 13 as preliminary issues.
Issues Involved:
The question raised was whether the consent decree within the earlier suit operated as res judicata so that R & F couldn’t question that the agreements between them and respondent no. 1 constituted a lease. Issue no. 12 raised the demand whether in sight of the decree R & F were halted from leading evidence and asking questions in cross-examination to show that the said agreements didn’t constitute a lease.
Issue No. 13 raised the question whether s. 92 of the Indian Evidence Act debarred R & F from leading evidence to the effect that the documents in question didn’t constitute a lease. The Trial Court refused to try these as preliminary issues and its order was upheld by the Supreme Court. At the trial of the case when the counsel for the respondents sought to ask a witness for respondent No.
1 whether the agreement dated November 27, 1954 was a billboard transaction and not a lease respondent No. 1 objected to the question. The objection was disallowed by the court. In revision under s. 115 of the Code of Civil Procedure the High Court did not obstruct with the trial court’s order in respect of issues Nos. 12 and 13. In respect of issue No. 11, the High Court held that the agreement dated November 27, 1954 must in view of the decree in suit No. 149 of 1960 be held to be a lease, which the decree created a bar of res Judicata in respect of the difficulty whether the said agreement created a lease. The defendants-appellants appealed to the present Court.
Observations/Obiter Dicta:
Filmistan feeling dissatisfied with the order invoked the revisional jurisdiction of the High Court of Gujarat under s. 115 of’ the Code of Civil Procedure. The revision petition was entertained and elaborate arguments were advanced at the Bar. The High Court referred to a number of authorities and observed that the correctness of the findings of the Trial Court on issues Nos. 12 and 13 may not be examined in exercise of the powers under s. 115 of the Code of Civil Procedure. The Court proceeded to, observe:
“The question then arises for consideration whether in fact the subordinate Court has decided the question of res judicata”, and that “it is true that the jurisdiction of the Court of mall Causes to decide disputes between a tenant and his landlord and falling within the purview of s. 28 of the Bombay Rent Control Act is derived from s. 28 of the said Act, but at the same time if an issue is in fact barred by res judicata, then the Court has no jurisdiction on principles of res judicata to go into that question or to decide that question over again to the extent to which the Court, viz., the trial court in the instant case, proposed to go into that question and allow the whole question, that was closed once for all by consent decree of December 1, 1960, to be reopened, it is proposing to exercise the jurisdiction which is not vested in it by law”.
“It is not open to any Court of law to try an issue over again or reopen the same if an earlier decision operates as res judicata. Once the jurisdiction of the Court has been taken away, any proposal to reopen the question closed by the earlier decision would be exercise of jurisdiction which is not vested in the Court by law and to that extent the decision would become revisable, even if it is the decision as to the res judicata of an issue”, and concluded
“It is not open to me in revision at this stage to express any opinion about the rights and contentions of the parties with reference to the agreement of December 1, 1960. But the only thing that can be said is that so far as the agreement of November 27, 1954, is concerned, it must be held, in view of the consent decree of December 1, 1960, that that document of November 27, 1954, created a lease……..
The consent decree must be held to create a bar of res judicata as far as the question of document of November 27, 1954, creating a lease is, concerned. The learned Judge will not proceed with the trial”.
Rationale:
A consent decree is simply the record of a contract between the parties to, a suit, to which is superadded the seal of the court. A matter in contest during a suit may operate as res judicata as long as there’s an adjudication by the court: the terms of s. 1 1 of the CPC leave no scope for a divergent view.
Judgement:
This Court observed in Major S. S. Khanna v. Brig. F. J. Dillon(1) that the expression “case” is a word of comprehensive import : it includes a civil proceeding and is not restricted by anything contained in s. 115 of the Code to the entirety of the proceeding in a civil court.
To interpret the expression “case” as an entire proceeding only and not a part of the proceeding imposes an unwarranted restriction on the exercise of powers of superintendence and may result in certain cases in denying relief to the aggrieved litigant where it is most needed and may result in the perpetration of gross injustice.
But it was not decided in Major S. S. Khanna’s case (1) that every order of the Court in the course of a suit amounts to a case decided. A case may be said to be decided, if the Court adjudicates for the purposes of the suit some right or obligation of the parties in controversy; every order in the suit cannot be regarded as a case decided within the meaning of s. 115 of the Code of Civil Procedure.
The order passed by the High Court is set aside and the Trial Court is directed to proceed and dispose of the suit. We trust that the suit will be taken up early for hearing and disposed of expeditiously. We recommend that the form of the issues Nos. 11, 12 and 13 will be rectified by the learned Trial Judge.
Filmistan will pay the costs of the appeal in this Court and in the High Court.
Appeal allowed.
Conclusion:
The High court had no prerogative to record any finding on the issue of res judicata in a revision application filed against an order refusing to uphold an objection to certain question asked to a witness under examination. The Court erred in proceeding to decide matters on which no decision was till then recorded by the trial court and which couldn’t be decided by the High Court until the parties had opportunity of leading evidence thereon. 436 By ordering that an issue may properly be put to a witness who -was examined, no case was decided by the Trial Court within the meaning -of s. 115 of the Code of Civil Procedure.
The expression ‘case’ isn’t limited in its import to the entirety of the matter in dispute in a proceeding. That kind of an interpretation may result in certain cases in disagreeing relief to the aggrieved litigant where it is utmost needed. But equally, it’s not every order of the court in the course of a suit that amounts to a case decided.
A case could also be said to be decided as long as the court adjudicates, for the aim of the suit, some right or obligation of the parties in controversy. [441H-442C] Major S. S. Khanna v. Brig. F. J, Dillon, [1964] 4 S.C.R. 409, -referred to. A decree, consistent with the decisions of this Court, doesn’t operate as res judicata, because a consent decree is simply the record of a contract between the parties to, a suit, to which is superadded the stamp of the court. A matter in contest during a suit may operate as res judicata as long as there’s adjudication by the court: the terms of section 11 of the Criminal Code leave no space for a contrary view.