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Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 11005 OF 2013 (Arising out of SLP (Civil) No. 25369 of 2010)

Erach Boman Khavar ... Appellant

Versus

Tukaram Shridhar Bhat and another      ...Respondents

J U D G M E N T

Dipak Misra, J.

Leave granted.

2. This appeal, by special leave, is directed against the  

judgment and order dated 23.6.2010 passed by the  

Division  Bench  of  the  High  Court  of  Judicature  at  

Bombay  in  Appeal  No.  262  of  2007  reversing  the  

judgment  and  order  passed  by  the  learned  single  

Judge  in  Company  Application  No.  720  of  2006  in  

Company  Petition  No.  201  of  1994  whereby  the

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learned  single  Judge  had  granted  leave  to  the  

appellant to institute a suit for eviction against the  

respondent therein.

3. The broad essential facts giving rise to the present  

appeal  are  that  on  17.6.1975  the  father  of  the  

appellant  entered  into  an  agreement  of  leave  and  

licence with  respondent  No.  2  –  Company,  namely  

M/s.  Poysha  Industrial  Co.  Ltd.  in  respect  of  a  flat  

owned by him.   As put  forth by the appellant,  the  

licence expired by efflux of time but the respondent  

No. 2 continued to pay the licence fee and the same  

was accepted by the father of the appellant without  

prejudice.  In the year 1990 a suit for eviction was  

instituted  by  the  predecessor-in-interest  of  the  

appellant  against  respondent  No.  2  and  the  sub-

tenant  under  the  Bombay  Rent  Act,  1947.   On  

4.3.1997 the sub-tenant, the first respondent herein,  

filed an application for impleading himself as a party  

in the suit contending that he was the sub-tenant.  It  

is apt to note here that he was the Managing Director  

of the respondent No. 2 - company.  On 17.6.1997  

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the Small Causes Court allowed the application and  

impleaded  the  respondent  No.  1  as  a  defendant.  

While  the  suit  was  in  progress,  on  9.1.1998  in  a  

separate  proceeding  the  learned  Company  Judge  

passed a  winding up order  against  the respondent  

No. 2 – Company.  At that stage, the landlord filed CA  

No.  731  of  1999  before  the  High  Court  seeking  

possession  of  the  flat.   On  14.2.2000,  the  learned  

single  Judge  rejected  the  application  opining  that  

before the premises could be returned, the rights of  

the person to occupy the premises are required to be  

determined.  It was observed that it was only in the  

clear case where there is no valid or legal subsisting  

tenancy or sub-tenancy that the premises could be  

returned to the landlord.  The said order was assailed  

before  the  Division  Bench  which  by  order  dated  

22.8.2000  accepted  the  reasoning  ascribed  by  the  

learned single Judge and dismissed the appeal.

4. As  the  factual  matrix  would  further  undrape,  the  

father  of  the  appellant  filed  an  application  for  

amendment of the plaint in the suit for incorporation  

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of the certain other grounds including the unlawful  

subletting  by  the  respondent-company  to  the  first  

respondent and the said amendment was sought to  

be made in terms of Section 3(1)(b) of the Bombay  

Rent  Act,  1947.   Eventually,  by  order  dated  

9.11.2000 the said application for  amendment was  

rejected on the ground that the Bombay Rent Act had  

been  repealed  on  31.3.2000.   Thereafter,  Suit  No.  

226/336 of 2001 was instituted in the Small Causes  

Court for eviction on the ground of illegal subletting.  

As set forth,  the said suit  was filed after  obtaining  

leave from the Companies Court under Section 446  

of  the  Companies  Act,  1956  (for  short  “the  1956  

Act”).  On 2.1.2002 as the original plaintiff, the father  

of the present appellant expired, an application for  

substitution  was  filed  and  thereafter  the  legal  

representatives including the appellant were brought  

on record vide order dated 28.3.2002.  As the factual  

matrix would unveil, the said suit was withdrawn on  

12.7.2004.

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5. On 21.9.2005 the appellant terminated the tenancy  

and thereafter on 18.10.2005 filed CA No. 45 of 2006  

before the learned Company Judge under Section 446  

of  the 1956 Act  seeking permission to file  eviction  

suit in the Small Causes Court as the respondent –  

Company  was  not  entitled  to  protection  under  

Maharashtra Rent Control Act, 1999 (for brevity “the  

1999 Act”) in view of Section 3(1)(b) of the said Act.

6. The  learned  Company  Judge  on  23.2.2006,  on  the  

basis  of  a  statement  made  by  the  contesting  

respondent,  granted  permission  for  filing  an  

amendment subject to the rights and contentions of  

respondent No. 3 therein on merits.   However,  the  

Court observed that it was not necessary to present  

Judge’s  Summons  and  granted  liberty  to  file  

application, if necessary. Though such an order was  

passed, the appellant did not file an application for  

amendment on the legal advice and keeping in view  

the liberty granted by the learned single Judge, filed  

CA  No.  720  of  2006  for  grant  of  leave  to  file  the  

eviction suit in terms of the provisions contained in  

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the 1999 Act.  The learned single Judge vide order  

dated 27.7.2006 passed the following order: -

“Perused  the  affidavit  in  support.   Since  the  applicant  has  instituted  a  Suit  against  the  Company  in  Liquidation,  seeking  its  eviction  from the premises, more particularly, described  in  the  affidavit  in  support  and  the  Suit/Application  is  pending.   Company  Application is made absolute in terms of prayer  clause (a).

This  order  is  passed without prejudice to  the  rights  and  contentions  of  the  Official  Liquidator  and  it  would  be  open  for  the  Liquidator to raise all  such contentions as are  permissible in law.”

7. Thereafter,  an  application  for  recall  was  filed  

contending, inter alia, that the court was misguided  

as the order indicated that the court was under an  

impression that the suit had already been instituted  

earlier.  The learned Company Judge, on perusal of  

the Company Application No. 720 of 2006, found that  

the  court  was  not  misguided  as  the  said  suit  was  

mentioned as proposed suit in the affidavit in support  

of the application.  Being of this view, he opined that  

the  order  dated  27.7.2006  did  not  require  to  be  

interfered  with.   He  further  observed  that  as  no  

provision  of  law had been shown under  which  the  

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proposed defendants to the suit were required to be  

heard before leave was granted under Section 446 of  

the 1956 Act.  He also took note of the fact that the  

official liquidator in the earlier proceedings had made  

a statement to the court that the suit premises were  

not  required  by  the  liquidator  for  effective  

management of the winding up proceedings and the  

order was passed without prejudice to the rights and  

contentions of the official liquidator and further it was  

observed  that  it  would  be  open  for  the  official  

liquidator to raise all such contentions as permissible  

in law.  The learned Company Judge also took note of  

the fact that the tenancy right of the company had  

not  been  disputed  by  the  plaintiff  and  no  decree  

could be passed without a full-fledged trial in the suit.  

Being of this view, he dismissed the application.   

8. The said order came to be assailed in appeal No. 779  

of  2006  before  the  Division  Bench which  by  order  

dated 7.11.2006, upon adumbration of all  the facts  

and delineation of the impugned orders, set aside the  

orders dated 27.7.2006 and 28.9.2006 as the learned  

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Company Judge had not  kept himself  alive to Rule  

117  of  the  Companies  (Court)  Rules,  1959  which  

envisages that an application under Section 446(1)  

for leave of the Court to commence or continue in  

suit  or  proceedings  against  the  company  shall  be  

made upon notice to the official  liquidator and the  

parties  to  the  suit  or  proceedings  sought  to  be  

commenced or continued and, accordingly, remitted  

the matter to the learned Company Judge to hear and  

decide the application afresh in accordance with law  

after affording opportunity to the sub-tenant also.   

9. After  the  remit,  the  learned  Company  Judge  vide  

order dated 5.3.2007, adverting to the submissions  

raised at the bar, came to hold that the objection as  

regards the maintainability of the application raised  

by  the  counsel  on  behalf  of  the  sub-tenant  that  

failure to obtain leave prior to institution of the suit  

would  debar  the  court  from  granting  leave  was  

devoid of any substance; that the contention to the  

effect that the order passed on 23.2.2006 debarred  

the applicant from moving and prosecuting another  

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application for grant of leave to file a fresh suit under  

Section 41 of the Presidency Small Causes Court Act  

being hit  by  principle  analogous  to  doctrine  of  res  

judicata  was  untenable  inasmuch  as  on  an  earlier  

occasion the question of grant of leave had not been  

decided on merits and further liberty was reserved in  

favour  of  the  applicant  to  apply;  that  the  object  

behind Section 446 of the 1956 Act is  to save the  

company which is being wound up from unnecessary  

litigation  and  to  protect  the  assets  for  equitable  

distribution among its creditors and shareholders and  

the court, while dealing with the question of grant of  

leave has to necessarily consider the interest of the  

company  and  ordinarily  leave  should  be  granted  

where  the  question  at  issue  in  such  a  situation  

cannot be gone into and decided in the winding up  

proceedings  as  in  the  case  at  hand,  the  tenancy  

rights of the company in the tenanted premises are  

not  the  assets  for  the  purpose  of  liquidation  

proceedings and merely because the company is in  

liquidation  and  liquidator  has  been  appointed,  the  

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rights  of  the  company  vis-à-vis  the  landlord  or  

tenants did not go through any change; and that the  

official liquidator had no objection for releasing the  

premises in favour of the landlord and as the sub-

tenant  was  the  only  contesting  party,  and  

accordingly granted leave.  Be it noted, the learned  

Company Judge while granting leave has opined thus:  

-

“The issues involved in the suit and the reliefs  claimed cannot be adjudicated upon or decided  by  this  Court  in  exercise  of  company  jurisdiction.  That jurisdiction shall be with the  court  trying  the  suit.   The  interest  of  the  company in liquidation is not at all involved in  the said suit  as already recorded hereinabove  for the reasons stated.  Therefore, the question  of invocation of jurisdiction of the Small Causes  Court  either  under  Section  28 of  the Bombay  Rent Act or under Section 33 of the Maharashtra  Rent Act or under Section 41 of the Presidency  Small Causes Court Act is not relevant for the  purpose of grant of leave because the question  of  jurisdiction  of  the  court  will  have  to  be  decided on the basis of the plaint pleadings.

The  small  Causes  Court  would  be  well  within its right to decide its own jurisdiction.  In  the event; it comes to the conclusion that it has  no jurisdiction to try a suit under the Presidency  Small Causes Court Act, in that event, it would  be open for that Court either to return or reject  the plaint or permit the conversion of the suit.  All these conflicting questions need not be gone  into and adjudicated upon by this Court at the  

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stage of grant of leave.  Only this Court has to  consider that the suit is not a frivolous suit, that  the suit is not such which is bound to fail for the  reasons apparent on the face of the record and  the same is not going to create strain on the  resources of the Official Liquidator. At any stage  the question raised in the suit is arguable one.”

[Underlining is ours]

10. The legal  substantiality  of  the  aforesaid  order  was  

challenged in Appeal no. 262 of 2007 and before the  

Division Bench it was contended that the application  

for  grant  of  leave  had  already  been  disposed  by  

refusing it vide order dated 23.2.2006 and granting  

permission to file  an application for  amendment in  

the  plaint  in  the  Small  Causes  Court  and  the  

concession given by the appellant not to oppose the  

same  was  not  availed  of  and  hence,  a  second  

application seeking grant of the same relief was not  

maintainable.  It was further urged that TER Suit No.  

111/127  of  2006,  the  second  suit,  was  instituted  

pursuant to leave granted by the learned Company  

Judge vide order dated 27.7.2006 which was revoked  

by  order  of  the  Division  Bench  in  appeal  and,  

therefore, the learned Company Judge could not have  

granted leave to continue the said suit.  The grant of  

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leave by the learned Company Judge was criticized  

further  on  the  ground that  the  earlier  order  dated  

23.3.2006  was  only  for  the  limited  purpose  for  

seeking clarification of the order and not for filing a  

fresh  application  seeking  grant  of  leave.   The  

aforesaid submissions were resisted by the present  

appellant  on  many  a  score  including  the  

interpretation of the earlier order and how it would  

not operate as res judicata.

11. The Division Bench placed reliance on  Arjun Singh  

v. Mohindra Kumar and others1 and came to hold  

that when the second application for leave was filed,  

there was no change in the circumstances and in the  

absence of any changed circumstances, the second  

application for leave was not maintainable as it was  

barred  by  principles  of  res  judicata  being  a  

successive  application  in  the  same  court  on  self-

same facts.  It was further opined that it is open to  

the appellant to file an application for review or to file  

an appeal against the said order and as long as the  

1 AIR 1964 SC 993

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said order remained alive, a fresh application could  

not have been entertained by the learned Company  

Judge.  To interpret the term “grant of liberty” the  

Division Bench held that on the basis of the grant of  

liberty the case could not have been reopened.  For  

the  said  conclusion reliance was placed on  Kewal  

Chand  Mimani  v.  S.K.  Sen  and  others2.   The  

Division  Bench,  however,  clarified  that  the  

respondent No. 3 therein would be entitled to make  

an application for grant of leave for instituting a fresh  

suit  after  taking  recourse  to  such  remedy  for  

annulment  of  the order  dated 23.2.2006 passed in  

Company Application No. 45 of 2006.  

12. We  have  heard  Mr.  Shyam  Divan,  learned  senior  

counsel appearing for the appellant and Mr. Shekhar  

Naphade,  learned senior  counsel  appearing for  the  

respondents.

13. The central issues that seems to be cemented by the  

verdict of the Division Bench are that the order dated  

23.2.2006  passed  by  the  learned  single  Judge  in  

2 (2001) 6 SCC 512

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Company  Application  No.  45  of  2006  in  Company  

Petition  No.  201  of  1994  operates  as  res  judicata  

debarring  the  appellant  to  file  an  application  for  

grant of leave and further the observation “liberty to  

applicant to apply” does not enable the appellant to  

get out from that legal labyrinth because it does not  

confer a right on a party to re-agitate the matter.  

14.  To  appreciate  the  heart  of  the  controversy,  it  is  

necessary to reproduce the order dated 23.2.2006 in  

entirety: -

“Leave  to  amend  the  title  in  respect  of  Respondent  No.  2  to  read  “The  Official  Liquidator  of  M/s.  Poysha  Industrial  Company  Limited”.  Amendment to be carried out within  two weeks from today.

2. Mr.  Thakkar,  the  learned  Senior  Counsel  appearing on behalf of Respondent No. 3  states that  in  the event of  the Petitioner  making an Application for  amendment  of  the  plaint  in  R.A.E.  suit  No.  228/336  of  2001 on the basis of the averments made  in  the  present  Judges  Summons,  Respondent  No.  3  will  not  oppose  the  same.  In view thereof, it is not necessary  to grant the present Judges’ Summons.

3. Liberty  to  the  Applicants  to  apply,  if  necessary.   The  amendment,  if  granted,  will  however be subject to the rights and  

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contentions  of  Respondent  No.  3  on  merits.”

15. Criticizing  the  analysis  and  the  conclusion  of  the  

Division  Bench  Mr.  Shyam  Divan,  learned  senior  

counsel for the appellant, has submitted that the said  

order  goes against the spirit  of  Section 446 of the  

1956 Act and further  it  would not remotely attract  

the  doctrine  of  res  judicata  in  its  conceptual  

essentiality, for none of the ingredients on which the  

edifice of the said principle is built are attracted to  

the facts of the case.  It is his further submission that  

when there had been no adjudication on merits by  

the learned Company Judge with regard to grant or  

refusal of leave on earlier occasion, the principles set  

out in the case of Arjun Singh (supra) would not be  

attracted.  That apart, contends Mr. Divan, that the  

words  “liberty  to  the  applicants  to  apply,  if  

necessary”  are  to  be  contextually  understood  and  

regard being had to the backdrop of the application  

and the delineation by the learned Company Judge  

and not to be put in a straight-jacket formula and, in  

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any  case,  the  decision  in  Kewal  Chand  Mimani  

(supra) is not applicable.

16. Mr.  Nephade,  learned  senior  counsel  for  the  

respondents,  per  contra,  would  contend  with  

emphasis that the order dated 23.2.2006 has been  

appositely understood by the Division Bench and it  

has justifiably been held to operate as res judicata  

debarring a party from filing a successive application  

on self-same facts and hence, no fault can be found  

with  the  decision  rendered  in  appeal.   He  would  

further submit that the learned Judges of the Division  

Bench have correctly understood the observation of  

the learned Company Judge “liberty to applicant to  

apply”  and  in  law,  no  benefit  did  accrue  to  the  

appellant  to  file  another  application  in  the  said  

proceeding  for  grant  of  leave.   That  apart,  the  

appellant chose not to file amendment in the pending  

suit which was conceded not to be opposed by the  

respondents but, on some pretext or other he filed  

another application for grant of leave to institute a  

suit  under  another  enactment  and,  therefore,  the  

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Division  Bench  has  rightly  unsettled  and  dislodged  

the order passed by the learned Company Judge.

17. To  appreciate  the  submissions  in  their  proper  

perspective, we may refer to Section 446 of the 1956  

Act which reads as follows: -

“446. Suits stayed on winding up order.  – (1) When a winding up order has been made  or the Official Liquidator has been appointed as  provisional  liquidator,  no  suit  or  other  legal  proceeding shall be commenced, or if pending  at  the date of  the winding up order,  shall  be  proceeded  with,  against  the  company,  except  by  leave  of  the  Tribunal  and  subject  to  such  terms as the Tribunal may impose.

(2) Tribunal  shall,  notwithstanding  anything  contained in any other law for the time being in  force, have jurisdiction to entertain, or dispose  of-

(a) any suit  or  proceeding by or  against  the  company;

(b) any claim made by or against the company  (including claims by or against any of its  branches in India);

(c) any application made under section 391 by  or in respect of the company;

(d) any  question  of  priorities  or  any  other  question  whatsoever,  whether  of  law  or  fact, which may relate to or rise in course  of the winding up of the company,

whether  such  suit  or  proceeding  has  been  instituted  or  is  instituted  or  such  claim  or  

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question has arisen or arises or such application  has been made or is made before or after the  order  for  the  winding  up  of  the  company,  or  before  or  after  the  commencement  of  the  Companies  (Amendment)  Act,  1960  (65  of  1960).

3. (omitted by Act 11 of 2003, sec. 61)

4. Nothing  in  sub-section  (1)  or  sub-section  (3)  shall  apply  to  any  proceeding  pending  in  appeal  before  the  Supreme  Court  or  a  High  Court.”

18. Reflecting  on  the  said  provision,  this  Court  in  

Central Bank of India v. M/s. Elmot Engineering  

Company  and  others3 has  ruled  that  it  aims  at  

safeguarding the assets of a company in winding up  

against  wasteful  or  expensive  litigation  as  far  as  

matters  which  could  be  expeditiously  and  cheaply  

decided  by  the  company  court  are  concerned.   In  

granting  leave  under  the  said  provision,  the  court  

always  takes  into  consideration  whether  the  

company  is  likely  to  be  exposed  to  unnecessary  

litigation and cost.   

19. In  Ammonia  Supplies  Corporation  (P)  Ltd.  v.  

Modern  Plastic  Containers  Pvt.  Ltd.  and  

others4,  while  dealing  with  power  under  Section  3 (1994) 4 SCC 159 4 (1998) 7 SCC 105

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446(1) of the 1956 Act, it has been observed that in  

the said sub-section the words used would indicate  

that the discretion to exercise such power is with the  

company court.

20. In  State of J&K  v.  UCO Bank and others5, while  

interpreting Section 446(1) of the 1956 Act, the Court  

opined  that  a  suit  cannot  be  instituted  once  a  

winding-up order  is  passed except by leave of  the  

court.   The two-Judge Bench referred to the earlier  

decision  rendered  in  Bansidhar  Shankarlal  v.  

Mohd.  Ibrahim6,  wherein  the  leave  had  been  

obtained  at  the  time  of  filing  of  the  suit  and  the  

question  was  whether  fresh  leave  ought  to  be  

obtained before proceeding under Section 446(1) of  

the  1956  Act  before  institution  of  execution  

proceedings.   The  Court  considered  the  contrary  

views  expressed  by  different  High  Courts  on  the  

effect and purport of Section 446(1) of the 1956 Act  

and came to the conclusion that the view that failure  

to obtain leave prior to institution of suit would not  

5 (2005) 10 SCC 331 6 (1970) 3 SCC 900

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debar  the  court  from  granting  such  leave  

subsequently and that the only consequence of the  

same  would  be  that  the  proceedings  would  be  

regarded as having been instituted on the date on  

which the leave was obtained from the High Court.

21. We have referred to the aforesaid decisions solely for  

the two purposes.  First, grant of leave of the court is  

not  a  condition  precedent  for  initiation  of  a  civil  

action or  the legal  proceedings.   It  is  because the  

Section does not expressly provide for annulment of  

a proceeding that is undertaken without the leave of  

the court.   There can be no shadow of  doubt that  

leave of the winding up court can be obtained even  

after initiation of the proceeding.   The second,  the  

seminal object behind engrafting of the said provision  

is  to  see  that  the  interest  of  the  company  is  

safeguarded so that it does not face deprivation of its  

right  and  claims  are  adjudicated  without  the  

knowledge  of  the  company  court  and  further  the  

court has a discretion to see whether leave should be  

granted  and,  if  so,  with  what  conditions  or  no  

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condition.  That apart, the court may grant leave if it  

felt  that  the  company  should  not  enter  into  

unnecessary  litigation  and  incur  avoidable  

expenditure.   

22. In the case at hand, the official liquidator had clearly  

stated that the suit property was not the property of  

the company and, therefore, the company should not  

enter  into  that  kind  of  litigation.   The  learned  

Company  Judge  has  taken  note  of  it  and  further  

granting all  protection to the official  liquidator,  has  

allowed the application for seeking leave.  However,  

as  is  seen,  the  Division  Bench  had  dislodged  the  

order of the learned single Judge solely on the ground  

that the earlier order dated 23.2.2006 stared at the  

face of the appellant and operates as res judicata.

23. Presently we shall address to the issue whether the  

order  which  has  been  construed  operating  as  res  

judicata  by  the  Division  Bench,  does  really  come  

within the ambit and sweep of the principles of res  

judicata or not.

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24. In  Satyadhyan  Ghosal  and  others  v.  Smt.  

Deorajin Debi and another7, a three-Judge Bench  

adverted  to  the  principle  of  res  judicata  and  its  

application  as  between  two  stages  in  the  same  

litigation and opined that when a Court at an earlier  

stage decided the matter in one way will  not allow  

the  parties  to  re-agitate  the  matter  again  at  a  

subsequent stage of the same proceeding.  The facts  

in the said case are that the appellant-landlord who  

had  obtained  a  decree  for  ejectment  against  the  

tenant had not  yet  been able to get  possession in  

execution of the decree.  The decree was obtained on  

February 10, 1949 and soon thereafter the Calcutta  

Thika Tenancy Act, 1949 came on the statute book  

on March 3, 1949.  The tenants made an application  

under  Order  IX,  Rule  13  of  the  Code  of  Civil  

Procedure  for  setting  aside  the  decree.   The  said  

application  was  dismissed  on  July  16,  1949.   On  

9.9.1949,  an  application  was  made  by  the  tenant  

under Section 28 of the Calcutta Thika Tenancy Act  

alleging that they were Thika tenants and hence, the  7 AIR 1960 SC 941

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decree made against them may be rescinded.  After  

contest,  the  learned  Munsif  came  to  hold  that  

applicants were not Thika tenants within the meaning  

of  Thika  Tenancy  Act  and  accordingly  declined  to  

rescind  the  decree.   The  aforesaid  order  was  

challenged  in  a  revision  under  Section  115  of  the  

Code  of  Civil  Procedure.   At  the  time  when  the  

revision  application  was  taken  up  for  hearing,  the  

Calcutta  Thika  Tenancy  Ordinance  had  come  into  

force  on  October  21,  1952  and  thereafter  the  

Calcutta  Thika  Tenancy  (Amendment)  Act,  1953  

came  into  force.   The  Amendment  Act  omitted  

Section 28 of  the  original  Act.   In  order  to  decide  

whether  the  application  under  Section  28 was  still  

alive,  the High Court  had to consider  the effect  of  

Section  1(2)  of  the  Amendment  Act.   The  learned  

Single Judge on interpretation of the provisions came  

to hold that Section 1(2) of the Amendment Act did  

not affect the operation of Section 28 of the original  

Act to the proceeding and on that basis disposed of  

the  application  holding  that  Section  28  was  

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applicable.  The High Court had also held that in view  

of the amended provision of Section 28 of the Thika  

Act  and the Ordinance which was recorded by the  

learned Munsif, the revisionists before the High Court  

were Thika tenants.  Being of this view, he allowed  

the revision and set aside the order of the Munsif by  

which he dismissed the application under Section 28  

and remanded the case to the Court  of  Munsif  for  

disposal in accordance with law.  After the remand,  

the  Munsif  rescinded  the  decree.   The  landlord  

preferred a revision under Section 115 of the Code of  

Civil Procedure contending that Section 28 of the Act  

was  not  applicable  but  the  said  submission  was  

repelled by the learned Single Judge holding that the  

said  issue  having  been  decided  earlier  was  res  

judicata between the parties.  The said order passed  

in  the  revision  was  the  subject  matter  of  appeal  

before this Court by special leave.  This Court stated  

the principle of res judicata which is  based on the  

need  of  giving  finality  to  judicial  decisions.   The  

learned Judges opined once a res is judicata, it shall  

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not  be  adjudged  again  and  it  primarily  applies  

between  past  litigations  and  future  litigations.  

Further  elucidating  it  was  stated  that  when  in  a  

matter – whether a question of fact or a question of  

law had been decided between the parities  in  one  

suit  or  proceeding  and the  decision  is  final,  either  

because of an appeal was taken to a higher court or  

an  appeal  was  dismissed,  or  when  no  appeal  lies,  

neither  party  will  be  allowed  in  a  future  suit  or  

proceeding between the same parties to canvass the  

matter again.  In that context, the Court addressed  

the  applicability  of  the  principle  of  res  judicata  

between  two  stages  in  the  same  litigation  and,  

eventually, ruled thus:-

“The principle of res judicata applies also  as  between  two  stages  in  the  same  litigation  to  this  extent  that  a  court,  whether the trial court or a higher court  having  at  an  earlier  stage  decided  a  matter  in  one  way  will  not  allow  the  parties to re-agitate the matter again at  a  subsequent  stage  of  the  same  proceedings.”   

25. After discussing the law in the field it was ruled that  

there was no reason to hold that the appellant was  

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precluded from raising before this Court the question  

about the applicability of Section 28 of the 1953 Act  

merely because he had not appealed from the High  

Court’s order of remand, taking the view against him  

the Section was applicable.

26. In  the case of  Arjun Singh (supra)  the defendant  

had approached this Court as his application under  

Order IX Rule 13 of the Code to set aside an ex parte  

decree passed against  him had been dismissed as  

barred by res judicata.  The question that basically  

arose before this Court was when an application is  

made under  Order  IX  Rule  7  of  the  Code and the  

Court considers that there is not any good cause for  

the  previous  non-appearance and proceeds  further  

with the suits and ultimately results in an ex parte  

decree, can a court in dealing with applications to set  

aside the ex parte  decree under Order  IX  Rule 13  

reconsider the question as to whether the defendant  

had a sufficient cause for non-appearance on the day  

in  regard  to  which  the  application  under  Order  IX  

Rule  7  had been filed.   The Court  referred  to  the  

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decision in Satyadhyan Ghosal (supra) and quoted  

a passage from the said decision and thereafter took  

note  of  two  submissions  advanced  by  the  learned  

counsel  for  the respondents therein which were to  

the effect  that  (1)  an issue of  fact  or  law decided  

even in an interlocutory proceeding could operate as  

res judicata in a later proceeding, and (2) in order to  

attract  the  principle  of  res  judicata  the  order  or  

decision first rendered and which is pleaded as res  

judicata  need  not  be  capable  of  being  appealed  

against.  Dealing with the same the Court observed  

thus: -

“We  agree  that  generally  speaking  these  propositions are not open to objection.  If  the  court  which  rendered  the  first  decision  was  competent  to  entertain  the  suit  or  other  proceeding,  and had therefore competency to  decide  the  issue  or  matter,  the  circumstance  that it  is a tribunal of exclusive jurisdiction or  one from whose decision no appeal  lay would  not by themselves negative the finding on the  issue  by  it  being  res  judicata  in  later  proceedings.   Similarly,  as  stated  already,  though S. 11 of the Civil Procedure Code clearly  contemplates the existence of two suits and the  findings  in  the  first  being  res  judicata  in  the  later suit, it is well established that the principle  underlying it is equally applicable to the case of  decisions rendered at successive stages of the  same  suit  or  proceeding.   But  where  the  

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principle of res judicata is invoked in the case of  the different stages of proceedings in the same  suit, the nature of the proceedings, the scope of  the  enquiry  which  the  adjectival  law provides  for the decision being reached, as well as the  specific  provisions  made  on  matters  touching  such  decision  are  some  of  the  material  and  relevant  factors  to  be  considered  before  the  principle is held applicable.”  

27. After so stating the three-Judge Bench proceeded to  

deal with different kinds of interlocutory orders and,  

in  that  context,  observed  that  interlocutory  orders  

are  of  various  kinds;  some  like  orders  of  stay,  

injunction or receiver are designed to preserve the  

status quo pending the litigation and to ensure that  

the parties might not be prejudiced by the normal  

delay which the proceedings before the court usually  

take.   They  do  not,  in  that  sense,  decide  in  any  

manner the merits of the controversy in issue in the  

suit and do not, of course, put an end to it even in  

part.   Such  orders  are  certainly  capable  of  being  

altered or varied by subsequent applications for the  

same relief,  though normally  only on proof  of new  

facts or new situations which subsequently emerge.  

As  they  do  not  impinge  upon  the  legal  rights  of  

parties to the litigation the principle of res judicata  

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does not apply to the findings on which these orders  

are based, though if applications were made for relief  

on  the  same basis  after  the  same has  once  been  

disposed of the court would be justified in rejecting  

the same as an abuse of the process of Court.  There  

are  other  orders  which  are  also  interlocutory,  but  

would fall  into a different category.  These are not  

directed to preserve the property pending the final  

adjudication,  but  are  designed  to  ensure  the  just,  

smooth, orderly and expeditious disposal of the suit.  

They are interlocutory in the sense that they do not  

decide any matter in issue arising in the suit, nor put  

an end to the litigation.

28. In  Prahlad Singh  v.  Col. Sukhdev Singh8 an ex-

parte decree passed in a petition for eviction based  

on  ground  of  default  in  payment  of  rent  was  set  

aside on the finding that the landlord had agreed to  

withdraw  the  petition  and  accept  rent  from  the  

tenant.  After the decree was set aside the petition  

for eviction was once again ordered on the ground of  

8 AIR 1987 SC 1145

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default of payment of rent for the same period.  The  

submission of  the tenant  that  the eviction petition  

could not be allowed to continue and deserved to be  

dismissed  on  the  finding  of  the  court  in  the  

proceeding for setting aside the ex parte order was  

negatived  by  the  High  Court  on  the  ground  that  

those findings were made in the context of setting  

aside the ex parte order and not in the context of  

deciding the main petition for eviction.  This Court, in  

appeal  by  special  leave  preferred  by  the  tenant,  

observed that  the view of  the High Court  was not  

right,  for  the  decision  given  by  a  court  at  earlier  

stage of a case is binding at a later stage and for the  

said  purpose  reliance  was  placed  on  the  

pronouncement  in  Satyadhyan  Ghosal (supra).  

While  dislodging  the  order  of  the  High  Court  this  

Court stated thus: -

“In the present case, in the proceeding to be set  aside an ex parte order, the Court recorded an  express finding that the landlord had agreed to  withdraw the suit and receive the rent from the  tenant.  That was a finding which was binding  on  the  landlord  at  later  stages  of  the  proceeding.   He  could  have  questioned  the  finding before the appellate authority and the  

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High  Court  in  the  appeals  preferred  by  the  tenant.  He did not choose to do so.  In fact he  could  not  do  so  as  he  had  earlier  thought  it  prudent not to enter the witness box though he  put the question in issue in the proceeding to  set aside the ex parte order by contesting the  statement of the tenant.”

29. We have referred to the said decision for the purpose  

that  the  Court  took  note  of  the  express  finding  

recorded by the trial court while passing the ex parte  

decree.  There was an expression of an opinion.

30. In  C.V.  Rajendran  and  another  v.  N.M.  

Muhammed  Kunhi9 the  question  arose  for  

consideration whether  the order  of  remand passed  

by the Rent Control Appellate Authority, Payyannur,  

dated November 25, 1988, holding that the second  

eviction  petition  (R.C.P.  No.  13/87)  filed  by  the  

respondent against the appellants under sub-section  

(3) of Section 11 of the Kerala Buildings (Lease and  

Rent Control) Act, 1965, is not barred by Section 15  

of  the  Act,  can  be  permitted  to  re-agitate  in  a  

proceeding arising from the order passed by the Rent  

Controller  pursuant  to  the order  of  remand.   Be it  

noted, in the said case, learned Rent Controller had  9 AIR 2003 SC 649

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declined  to  grant  relief  to  the  respondent  on  the  

ground  that  under  Section  15(3)  of  the  Act  the  

eviction petition was not  maintainable.   On appeal  

being  preferred  the  appellate  authority  remanded  

the matter to the Rent Controller for fresh disposal.  

After  remand,  the  Rent  Controller  found  that  the  

need  of  the  respondent  was  bona  fide  and  

alternative accommodation in the area was available  

and, accordingly, allowed the eviction petition.  The  

same  was  affirmed  by  the  Rent  Control  Appellate  

Authority.   On  a  civil  revision  being  preferred  the  

High  Court  opined  that  the  earlier  order  of  the  

appellate authority holding that Section 15 of the Act  

does  not  bar  the  eviction  proceeding  against  the  

tenant,  had  become  final  and  could  not  be  re-

agitated.   However,  the  High  Court  recorded  a  

finding that  Section 15 of  the Act  did  not  bar  the  

subsequent eviction petition and being of that view  

dismissed  the  revision  petition.   A  contention  was  

raised  before  this  Court  that  order  passed  by  the  

appellate authority holding that the eviction petition  

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was maintainable and Section 15 of the Act was not  

a  bar,  does  not  operate  as  res  judicata.   In  that  

context, this Court observed as follows: -

“In  the  light  of  the above discussion we hold  that as the question whether S. 15 of the Act  bars the present eviction petition, was decided  against  the  appellants  by  the  appellate  authority at the earlier stage of the suit and it  was allowed to become final, it is not open to  the  appellants  to  reagitate  the  same  at  the  subsequent stage of the suit.  In this view of the  matter, we do not find any illegality in the order  under appeal to warrant any interference.”

31. From the aforesaid decision it is clear that this Court  

concurred  with  the  view  of  the  High  Court  as  a  

finding  was  returned  that  the  proceeding  was  not  

barred by Section 15 of the Kerala Buildings (Lease  

and  Rent  Control)  Act,  1965  and  thereafter  the  

matter was remanded by the appellate court.  Thus,  

on earlier  occasion there was an expression of  an  

opinion.  In this context, we may fruitfully reproduce  

a passage from Arukkani Ammal v. Guruswamy10:  

-

“It is also difficult to appreciate the view taken  by  the  District  Munsif  that  ex  parte  decree  cannot  be  considered  to  be  ‘full  decree  on  

10 (1987) 100 LW 707

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merits’.  A decree which is passed ex parte is as   good  and  effective  as  a  decree  passed  after   contest.  Before the ex parte decree is passed,  the court has to hold that the averments in the  plaint  and  the  claim  in  the  suit  have  been  proved.  It is, therefore, difficult to endorse the  observation  made  by  the  Principal  District  Munsif that such a decree cannot be considered  to  be  a  decree  passed  on  merits.   It  is  undoubtedly a decree which is passed without   contest;  but  it  is  only  after  the merits  of  the   claim of the plaintiff have been proved to the   satisfaction of the trial court, that an occasion   to pass an ex parte decree can arise.”

32. The aforesaid passage was approved by this Court in  

Saroja  v.  Chinnusamy  (Dead)  by  LRs  and  

another11.  The purpose of citing the said authority  

is that though an ex parte decree is passed without  

contest but it is passed only after the merits of the  

claim  of  the  plaintiff  have  been  proved  to  the  

satisfaction of the trial court.

33. In this regard, the pronouncement in Y.B. Patil and  

others v. Y.L. Patil12 is worth referring to.  In that  

case the High Court in the writ petition preferred on  

earlier point of time had recorded a finding and gave  

directions to the tribunal not to reopen the question  

of  fact  in  revision  and  the  tribunal  complied  with  11 (2007) 8 SCC 329 12 (1976) 4 SCC 66

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those directions of the High Court.  This Court opined  

that  the  appellants  therein  were  bound  by  the  

judgment of the High Court and it was not open to  

them to go behind the judgment earlier passed by  

the High Court as they had not preferred any appeal  

against  the  said  judgment  and  it  had  attained  

finality.   The Court  observed that  it  is  well  settled  

that principle of res judicata can be invoked not only  

in  separate subsequent  proceedings,  they also  got  

attracted  in  subsequent  stage  of  the  same  

proceeding.   The aforesaid  decision  has  noted the  

fact that in the earlier  writ  petition the High Court  

has clearly stated that the tribunal shall not reopen  

the question of fact in revision.  It is manifest that,  

this Court has taken note of the fact that there was  

an expression of opinion by the High Court that facts  

need not be adverted to again by the tribunal and  

that attracted the principle of res judicata.

34. From the aforesaid authorities it  is clear as crystal  

that to attract the doctrine of res judicata it must be  

manifest that there has been conscious adjudication  

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of an issue.  A plea of res judicata cannot be taken  

aid of unless there is an expression of an opinion on  

the merits.  It is well settled in law that principle of  

res judicata is applicable between the two stages of  

the same litigation but the question or issue involved  

must have been decided at earlier stage of the same  

litigation.  In the case at hand, as the order dated  

23.2.2006 would show that a statement was made  

by the counsel for the third respondent that in the  

event  of  the petitioner’s  making an application for  

amendment of the plaint in the pending suit on the  

basis of the averments made in the summons issued,  

he  would  not  oppose  the  same.   The  learned  

Company Judge recorded the same and opined that it  

is  not  necessary  to  grant  the  present  Judge’s  

Summons.  Thereafter, the learned Company Judge  

has  observed  “liberty  to  applicant  to  apply,  if  

necessary”.  The Division Bench, after relying on the  

decision  in  Kewal  Chand  Mimani’s case,  has  

opined that grant of liberty is adopted by the court to  

obliterate  any  confusion  or  any  difficulty  being  

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experienced  in  the  matter  but  the  said  grant  of  

liberty  does  not  confer  any  right  on  the  party  to  

agitate  the  matter  further  nor  does  it  confer  any  

jurisdiction  on  the  court  to  further  probe  the  

correctness of the decision arrived at.  To appreciate  

the correctness of the said conclusion it is imperative  

to appreciate the verdict in  Kewal Chand Mimani  

(supra).  In the said case, an appeal was preferred  

against an order passed by the learned single Judge  

in the writ petition.  The appeal was heard from time  

to time and the hearing was concluded but before  

the  judgment  could  be  pronounced,  one  of  the  

Judges  hearing  the  appeal  was  transferred  as  a  

consequence  of  which  the  judgment  could  not  be  

pronounced.  At that stage, the respondents 7 to 10,  

after expiry of about 9 years, filed an application for  

being  transposed  as  appellants  to  conduct  the  

pending appeal and the Division Bench allowed the  

application  for  transposition,  however,  stating  that  

the said transposition was without prejudice to the  

rights of the complainant to contest the appeal  as  

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appellant.  Subsequently, the appeal was reheard by  

a reconstituted Division Bench of the High Court and  

the judgment was reserved by the Bench.  During the  

pendency of the pronouncement of the judgment the  

appellant therein moved this Court under Article 136  

against the order of transposition and this Court had  

passed an order to the following effect: -

“The order against which the SLP has been filed  is an order on transposition as appellants.  The  order itself indicates that the petitioners are at  liberty to raise all the objections.  We see that  even including the transposition and their right  to contest in the capacity as appellants also is  left open.

The petitioners are at liberty to have the  matter adjudicated.”

35. Thereafter,  the  High  Court  decided  the  appeal  by  

delivering a judgment on 21.5.1997.  A direction was  

issued to the State Government  and the Municipal  

Corporation to restore the possession of the property  

to the owner and/or the occupier, as the case may  

be, within seven days from the date of the judgment.  

However,  the Division Bench had stated “liberty to  

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mention” the matter.  Shortly thereafter, the matter  

was taken up by the concerned Collector to which  

certain objections were raised.  In the said case, as  

the  factual  matrix  would  unfurl,  on  23.5.1997  the  

matter was mentioned before the Appellate Bench by  

the  learned  advocate  for  the  State  arguing  for  

extension  of  time  for  making  over  possession  in  

terms  of  the  order  and  the  High  Court  thereupon  

extended the time.  However, it directed the matter  

to  appear  on  a  particular  day.   Subsequently,  a  

formal  application  was  filed  by  the  owners  for  a  

direction to restore the possession of the premises in  

question to the owners as the appellants, as alleged,  

were not the owners.  It was on the state of facts the  

second judgment was pronounced by the Appellate  

Bench which directed making over of possession to  

the  owners  without  prejudice  to  the  rights  and  

contentions of the parties and without prejudice to  

the rights of the lessee to file a suit for appropriate  

proceedings  for  recovery  or  otherwise  and/or  to  

enforce an agreement for purchase of the properties  

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in accordance with law.  The High Court allowed 48  

hours time from the date of the communication of  

the order and by reason wherefor a notice was sent  

to  the  owners  requiring  them  to  be  present  to  

receive  the  possession  of  the  land.   The  Mimanis  

being grieved by the said order moved this Court and  

maintenance  of  status  quo  was  directed  without  

creation of any third party interest.  The Court, apart  

from other  issues,  addressed to  the submission as  

raised  by  the  learned  counsel  for  the  appellants  

therein to the effect of liberty granted to mention the  

matter  after  the  judgment  was  delivered.   It  was  

urged that by the judgment directions were issued  

and  it  connoted  a  final  disposal  and  specifically  

determined the issue raised in  the matter.   It  was  

canvassed that when the High Court  had recorded  

that  though  many  other  points  were  argued  and  

several  case  laws  were  cited,  but  it  was  not  

necessary  for  deciding  those  points  as  the  appeal  

succeeded on the point  of  order  of  requisition not  

been continued on the basis of a lapsed statute and  

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the appeal got disposed of, shelter or aid could not  

have  been  taken  to  “liberty  to  mention”  for  

reopening  the  whole  issue.   In  that  context,  this  

Court observed thus: -

“Be it noted, however, that the words “liberty to  mention”  have  been  as  a  matter  of  fact  a  phraseology which did not come through judicial  process without any definite legal sanction for  the purpose of clarification, if needed, but not  otherwise.  It is a legal process which has been  evolved for convenience and for shortening the  litigation  so  that  the  parties  are  not  dragged  into further and further course of litigation, and  it is in this context that the submissions of Mr.  Gupta,  that  the  Court  has  no  jurisdiction  to  reopen the issue on the ground of availability of  the  legal  phraseology  of  liberty  to  mention  cannot  be  brushed  aside.   As  noticed  hereinbefore,  the insertion of the above-noted  legal phraseology is to obliterate any confusion  or any difficulty being experienced in the matter  – it does not give the right anew to the party to  agitate  the  matter  further  nor  does  it  confer  jurisdiction on the court itself to further probe  the  correctness  of  the  decision  arrived  at:  review  of  a  judgment  cannot  be  had  on  the  basis of this liberty.  The circumstances under  

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which  review can  be  had  are  provided  under  Order 47 of the Code of Civil Procedure.  In any  event, law is well settled on this score that the  power to review is not any inherent power and  it must be conferred by law either specifically or  by necessary implication.”

36. After so stating the Court referred to the decision in  

State of U.P. v. Brahm Datt  Sharma13 wherein it  

has  been  held  that  when  proceedings  stand  

terminated by final disposal of writ petition it is not  

open  to  the  court  to  reopen  the  proceedings  by  

means of a miscellaneous application in respect of a  

matter which provided a fresh cause of action, for if  

the  said  principle  is  not  followed,  there  would  be  

confusion  and  chaos  and  the  finality  of  the  

proceedings would cease to have any meaning.

37. Coming to the case at hand, the Division Bench, after  

reproducing paragraph 19 of the judgment in Kewal  

Chand Mimani’s case, held that the liberty granted  

by the learned single Judge to file an application was  

not  maintainable,  for  the  liberty  granted  by  the  

learned single  Judge cannot  be used to  seek from  13 (1987) 2 SCC 179

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him orders which are contrary to his principal order  

rejecting the company application for grant of leave.  

On  a  studied  scrutiny  of  the  order  passed  by  the  

learned single Judge on 23.2.2006, we find that the  

Division  Bench  has  committed  three  fundamental  

errors, namely (i) that the learned single Judge had  

rejected  the  application;  (ii)  that  liberty  granted  

could only mean the parties to seek further direction  

pursuant to the said order; and (iii) that the liberty  

granted  by  the  learned  single  Judge  could  not  be  

used to seek from him any relief which is contrary to  

the main order.   

38. It is clear to us that the learned single Judge had not  

dealt  with  the  application  for  grant  of  leave  on  

merits; that the application was disposed of on the  

basis of a submission made by the third respondent  

that if an application for amendment is filed in the  

pending suit, he would not oppose the same; that the  

learned  Company  Judge  on  the  basis  of  the  

statement  recorded  that  it  was  not  necessary  to  

grant the present Judge’s Summons; and that liberty  

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was granted to the applicant to apply if necessary.  

The Division Bench,  we are disposed to  think,  has  

erroneously opined that the learned single Judge in  

the  main  part  of  the  order  having  rejected  the  

application could not have granted liberty to apply  

for filing of another application.  As we notice, the  

Division  Bench  has  not  appositely  appreciated  the  

ratio  laid  down  in  Kewal  Chand  Mimani (supra)  

wherein the High Court had pronounced a judgment  

and, as a matter of practice, has stated “liberty to  

mention” and in that context, this Court stated that  

that did not confer jurisdiction on the High Court to  

dwell upon a different issue in a disposed of case.  In  

fact, in the said case the order passed by this Court  

on  earlier  occasion  has  been  reproduced  wherein  

liberty  was  granted  to  get  the  matter  adjudicated  

which, in the context, simply conveyed that as the  

controversy  relating  to  transposition  therein  was  

pending  before  the  High  Court  and  the  order  

indicated that the applicants were at liberty to raise  

all  objections  including  the  transposition  and  the  

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right to contest in the capacity as appellants.  When  

this Court said “liberty was granted to get the matter  

adjudicated”,  it  meant  that  it  was  open  to  the  

petitioner in the SLP to raise all contentions before  

the High Court as the High Court itself had granted  

liberty in the order which was the subject-matter of  

challenge and the matter  was sub-judice.   We are  

only analyzing on this score to highlight that words,  

namely,  “grant  of  liberty”  are  to  be  understood,  

regard being had to the context in which they are  

used.  Context is really material.   Had the learned  

Company  Judge  adjudicated  the  matter  on  merits,  

the matter would have been absolutely different.  He  

had, in fact, on the basis of a statement made by the  

learned  counsel  for  the  third  respondent,  had  not  

dwelled upon the merits  and,  in  that  context,  had  

granted liberty to applicant to apply, if necessary.  It  

is eminently so because the learned Judge has also  

stated  “it  is  not  necessary  to  grant  the  present  

Judge’s Summons”.  Thus, the application for grant of  

leave was really not dealt with on merits and on the  

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basis of a statement of respondent No. 3 the learned  

Company Judge opined that it was not necessary for  

the present and in that context liberty was granted.  

The  principles  stated  in  Arjun  Singh  (supra),  

Satyadhyan  Ghosal (supra)  and  the  other  

authorities  clearly  spell  out  that  principle  of  res  

judicata  operates  at  the  successive  stages  in  the  

same  litigation  but,  the  basic  foundation  of  res  

judicata rests on delineation of merits and it has at  

least an expression of an opinion for rejection of an  

application.   As  is  evident,  there  has  been  no  

advertence  on  merits  and  further  the  learned  

Company  Judge  has  guardedly  stated  two  facets,  

namely,  “not  necessary  to  grant  present  Judge’s  

Summons”  and  “liberty  to  applicant  to  apply,  if  

necessary”.   On a seemly reading of the order we  

have no shadow of doubt that the same could not  

have been treated to have operated as res judicata  

as has been held by the Division Bench.  Therefore,  

the irresistible conclusion is that the Division Bench  

has fallen into serious error in dislodging the order  

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granting leave by the learned Company Judge to file  

a fresh suit.

39. In  view  of  the  aforesaid  analysis,  we  allow  the  

appeal,  set aside the order passed by the Division  

Bench  and  restore  that  of  the  learned  Company  

Judge.   The  first  respondent  is  directed  to  pay  

Rs.50,000/-  to  the  appellant  towards  costs  of  the  

appeal.

……………………………….J.                                              [Anil R. Dave]

……………………………….J. [Dipak Misra]

New Delhi; December 12, 2013.

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ITEM NO.1A               COURT NO.10             SECTION IX

           S U P R E M E   C O U R T   O F   I N D I A                          RECORD OF PROCEEDINGS                      Petition(s) for Special Leave to Appeal (Civil) No(s).25369/2010

(From  the  judgement  and  order   dated  23/06/2010  in  CP  No.201/1994,CA  No.720/2006,AN No.262/2007 of The HIGH COURT OF BOMBAY)

ERACH BOMAN KHAVAR                                Petitioner(s)

                VERSUS

TUKARAM SRIDHAR BHAT & ORS.                       Respondent(s)

Date: 12/12/2013  This Petition was called on for Judgment today.

For Petitioner(s) Ms. Surekha Raman, Adv.   for M/S. K.J. John & Co.

For Respondent(s)  Mr. E.C. Agrawala, Adv.  

Hon'ble Mr. Justice Dipak Misra pronounced the Judgment of the  

Bench comprising Hon'ble Mr. Justice Anil R. Dave and His Lordship.   

Leave granted.   

The Civil Appeal is allowed.   

(Jayant Kumar Arora) Sr. P.A.  

(Sneh Bala Mehra) Assistant Registrar

(Signed reportable Judgment is placed on the file)

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