Full Judgment Text
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PETITIONER:
DEVIDAYAL ROLLING MILLS
Vs.
RESPONDENT:
PRAKASH CHIMANLAL PARIKH AND ORS.
DATE OF JUDGMENT24/03/1993
BENCH:
KASLIWAL, N.M. (J)
BENCH:
KASLIWAL, N.M. (J)
VENKATACHALA N. (J)
CITATION:
1993 AIR 1982 1993 SCR (2) 611
1993 SCC (2) 470 JT 1993 (2) 626
1993 SCALE (2)190
ACT:
Constitution of India 1950.
Articles 136, 142-Special Leave Petition-Involving tenancy
of property-petition dismissed-Interlocutory application by
third party after 12 years alleging title to said property
and fraud in transaction relating thereto-Held application
cannot be entertained in exercise of powers either under
Article 136 or Article 142 or under Section, 47 C.P.C in
disposed of Special Leave Petition.
HEADNOTE:
Father of respondents no.1 and 2 was the owner of the plot
in dispute and respondent no.3 was the tenant therein.
Respondents no.1 and 2, after the death of their father,
obtained a decree for eviction against respondent no.3. In
the execution proceedings the petitioners (in S.L.P.
No.4925/77) intervened contending that they had purchased
the business along with interest in the property in dispute
from respondent no.3. They filed a declaratory suit for
being declared tenant in the said property. Their
application for interim injunction to restrain respondents 1
and 2 from executing the decree was rejected and the
revision thereupon was also dismissed by the High Court.
Their special leave petition was dismissed on 13.12.1977.
However, respondents no. 1 and 2 agreed not to execute the
decree before 1.1.1980 on the undertakings to be given by
the petitioners and respondent no. 3. Later, an application
was riled for declaring the order dated 13.12.1977 as
complied with inasmuch as the petitioners and respondent
no.3 had handed over the possession of the property to
Respondents no.1 and 2. It was also stated that a fresh
tenancy had been granted in favour of the petitioners with
effect from 25.6.1978. As no objection was riled, the prayer
was allowed by this Court’s order dated 11.12.1978.
Another company (the applicant company) riled the
Interlocutory Application on 23.1.1990 in the dismissed
S.L.P. no.4925/77 stating that the property in dispute
belonged to a private limited company of which respon
612
dents no.1 and 2 were the only directors; that by an
agreement of sale dated 31.7.1979 the applicant company
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purchased 100% shares of the company of respondents no.1 and
2 and took over the entire estates of the said company. It
was contended that the property in dispute being the
property of the company, shares of which were purchased by
the applicant company, respondents 1 & 2 had no right and
authority to create fresh tenancy in favour of the
petitioners on 25.6.1978; that respondents no.1 and 2
practiced a fraud upon this Court in obtaining the order
dated 11.12.1978 be making a false representation that they
were owners of the property in dispute. It was prayed inter
alia that the applicant-company be impleaded as respondent
no.4 In S.L.P. No. 4925/77, the order. dated 11.12.1978 be
recalled and an order of inquiry about the fraud practiced
upon this Court be made.
This Court by its order dated 2.4.1990 directed the High
Court to decide the question of title to the property In
dispute and submit Its findings to this Court. The High
Court held that the property in dispute belonged to
respondents no.1 and 2 and the applicant company was not the
owner. The applicant company filed objections to the
findings recorded by the High Court and the petitioners
riled a counter to applicant’s objections.
The petitioners raised a preliminary objection to the
maintainability of the application (1. & No.1 of 1990)
contending that the interlocutory application In the
dismissed special leave petition could not be filed by the
applicant company under any provision of law after a lapse
of more than 12 years; that besides the lease dated
25.6.1978 never being the subject matter of any proceedings,
the applicant company was never a party to the suit or the
proceedings arising out of it and giving rise to the special
leave petition.
The applicant company contended that the application was
maintainable under Section 47 C.P.C and/or under Articles
136 and 142 of the Constitution inasmuch this Court has
appellate powers from every decision of every Court or
Tribunal and Article 142 gives power to this Court to do
justice In any cause or matter raised even in a special
leave petition already disposed of-, that the petitioners
having not filed any review application against the order
dated 2.4.1990 were bound by the principles of acquiescence,
waiver and estoppel; that the order dated 2.4.1990 had
become final and it would cause Irreparable injury to the
applicant company if that order was recalled.
613
Dismissing the interlocutory application, this Court,
HELD: 1.1. The question of title to or fraud in any
transaction in respect of an immovable property raised for
the first time by a third party by way of an interlocutory
application in a disposed of special leave petition, can not
be gone into by this Court either in exercise of its power
under article 136 or Article 142 of the Constitution or
under Section 47 of the Code of Civil Procedure. [p p. 625
C-D; 626 F; 627 E]
1.2. The interlocutory application riled by the applicant
company on 23.1.1990 in the special leave petition
dismissed as long ago as 12 years, was totally misconceived
and there was no provision under which the same could have
been entertained by this Court. Controversy regarding title
to the property or the question of alleged fraud had no
relevance even remotely with the question raised in the
special leave petition. According to the applicant
company’s own case, they had made an agreement of purchasing
100% shares of the private limited company of respondents
no.1 and 2 on 31.7.1979 and thereafter the applicant company
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took over the entire assets. Thus the applicant company
cannot be said to have anything to do with the two orders
passed by this Court on 13.12.1977 and 11.12.1978 nor could
it be regarded as one in any way adversely affected by the
agreement dated 25.6.1978 of new tenancy as till then It had
not taken any steps of purchasing the said shares. [pp. 625
B-C; 626 A-D]
Union Carbide Corporation and Others v. Union of India and
Others, [1991] 4 S.C.C. 584; inapplicable.
2.1. The orders dated 2.4.1990 neither decided any issue
finally nor did it grant implement prayed by the applicant
company nor can the order be considered as binding or
operative as res judicata or otherwise. The order appears
to have been passed under a clear misconception that it will
aid the final decision on the application. There was no
proceeding pending at all before this Court in respect of
the special leave petition, in which the application could
have been riled after a lapse of 12 years. [pp. 625 D-F;
627E-F]
Satyadhyan Ghosal & Ors. v. Sm. Deorajin Debi & Anr.,
[1960] 3 S.C.R. 590 and Y.B. Patil & Ors. v. Y.L. Patil
[1977] 1 S.C.R. 320, distinguish.
Arjun Singh v. Mohindra Kumar & Ors., [1964] 5 S.C.R. 947,
referred to.
614
2.2. There Is no question of any acquiescence, waiver or
estoppel against a party where the error is committed by
this Court itself This Court is under a bounden duty to
correct its own mistake. [p. 626 F]
2.3. Accordingly, the entire proceedings in the High Court
including the findings recorded on the question of title are
non est and not binding on any of the parties concerned. [p.
627 G]
3. So far as the question of rendering justice in a civil
litigation is concerned, it can only be known after the
final culmination of such litigation and the party
succeeding can be adequately compensated by way of costs.
[627 C-D]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Interlocutory Application
No.1 of 1990.
IN
Special Leave Petition No.4925 of 1977.
From the Judgment and Order dated 13.10.1977 of the Bombay
High Court in Special Civil Application No.742 of 1977.
Ram Jethmalani, S.K. Dholakia, P. Chidambaram, Ms. Bina,
P.H. Parekh, A.L. Pandya, Ms Seita Vaidyalingam, Ms. Rina
Agarwal, Anant Palli, Atul Sharma and E.C. Agarwal for the
appearing parties.
The Judgment of the Court was delivered by
KASLIWAL, J. A Plot of land measuring 2000 sq. yards
situated at Syani Road Bombay is the subject matter of this
litigation. One part of the case is that the above property
belonged to Chitnanlal D. Parikh. He executed a will on
20.10.1952 in favour of his minor sons Prakash Chimanlal
Parikh and Pankaj Chimanlal Parikh (hereinafter referred to
as respondent Nos.1 and 2). Chimanlal D. Parikh died on
5.12.1952. Devidayal Rolling and Refineries Pvt. Ltd.
(hereinafter referred to as respondent No.3) was in
occupation of the said property as a tenant. Smt. Mayadevi
widow of Chimanlal D. Parikh and executors named in the will
dated 20th October, 1952 acting on behalf of respondent
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Nos.1 and 2 filed a suit No.344 of 1958 for eviction against
respondent No.3 in the Bombay High Court. On 31.10.1961 a
consent decree for eviction was passed in the above suit
with
615
the condition that-the decree shall not be executed for a
period of 12 years i.e. upto 31.10.1973. The respondent
Nos.1 and 2 in order to execute the said decree submitted an
application under Order 21 rule 16 and Order 21 rule 22
C.P.C. in the Bombay High Court. The said applications were
allowed and respondent Nos.1 and 2 were substituted as
decree holders by an order of the High Court dated
10.12.1973. M/s Devidayal Rolling Mills (hereinafter
referred to as "the petitioners") appeared in the execution
proceedings and contended that they had purchased the
business along with interest in the disputed property from
Devidayal Rolling and Refineries Private Limited, the
respondent No.3. The petitioners also filed a declaratory
suit in January, 1974 in the Small Causes Court at Bombay
for being declared as tenants in the above property. The
petitioners also filed an interlocutory application for
restraining the respondent Nos.1 and 2 from executing the
decree for eviction. The respondent Nos.1 and 2 denied any
tenancy having been created in favour of the petitioners.
The Small Causes Court rejected the grant of any injunction
in favour of the petitioners and a revision filed against
the said order was also dismissed by the High Court. The
petitioners then filed a Special Leave Petition No.4925 of
1977 in this Court, after the disposal of which, the present
interim application No.1 has been filed.
A Bench of three Judges of this Court on 13.12.1977
dismissed the Special Leave Petition but respondent Nos.1
and 2 agreed not to execute the decree before 1st January,
1980 on an usual undertaking to be given by the petitioners
as well as respondent No.3. The order dated 13.12.1977
having an important bearing in the case is reproduced as
under:-
UPON hearing counsel, the Court passed the following,
ORDER
"Special Leave Petition is dismissed.
However, Respondents 1 and 2 agree not to
execute the decree before the 1st of January,
1980, on the undertaking given by Mr. Nariman
on behalf of the petitioners and respondent
No.3 that the petitioners and respondent No.3
shall hand over vacant and peaceful possession
of the premises to respondents 1 and 2 on or
before the said date. The petitioners and
respondent 3 further undertake that they will
not raise
616
any contention hereafter that they were or are
in possession of the premises either as
licensee or tenants of respondents 1 and 2
under the unamended or the amended Rent Act.
Arrears of compensation according to the
consent decree shall be paid within four weeks
from today and further compensation shall be
paid before the 10th of every month at the
rate of Rs.4000 per month. All other terms of
the consent decree will remain. The
petitioner and respondent No.3 shall file
through their Managing Director an affidavit
in terms of this order, within two weeks".
In pursuance to the above order, undertakings were filed on
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15.1-2.1977. Subsequently an application C.M.P. No.18403 of
1978 was submitted on 8.8.1978 to the effect that after the
filing of the undertakings the petitioners and respondent
No.3 had handed over peaceful and vacant possession of the
premises of respondent Nos.1 and 2 on 25th June, 1978. It
was further submitted that on 25th June, 1978 itself a fresh
tenancy had been granted by respondent Nos.1 and 2 in favour
of the petitioners. A copy of the agreement granting fresh
tenancy was also filed along with the application. The
above application was filed in view of the fresh agreement
of tenancy warranting the obtaining of discharge of the
undertaking filed before this Court. The following prayer
was made in the said application:
(a) That it may be declared and recorded
that the petitioners and respondent No.3 have
duly complied with the order of this Hon’ble
Court dated 13th December, 1977 Exh. ’A’
hereto and the undertakings recorded in the
said order as well as the undertakings given
by Kewal Kishan Agarwal and Bankey Kishan
Agarwal in their affidavits dated 15th
December, 1977;
(b) That the petitioners, respondent No.3,
the said Kewal Kishan Agarwal and the said
Bankey Kishan Agarwal be relieved on their
respective undertaking given by them to this
Hon’ble Court and recorded in the said order
dated 13th December, 1977 Ex. ’A’ hereto and
the said affidavits of Kewal Kishan Agarwal
and Bankey Kishan Agarwal dated 15th December,
1977 and
617
(c) for such further and other reliefs as
the nature and circumstances of the case may,
require for which act of kindness as the
petitioners have in duty bound shall ever
pray.
The above application came up for consideration on
11.12.1978 and was disposed of by the following order:
UPON hearing counsel, the Court passed the
following order:
The other side has no objection. Order made
as prayed for’.
This concludes one part of the case.
Second part of the case is that after a lapse of nearly 12
years of disposal of the Special Leave Petition the above
I.A. No.1 of 1990 has been filed on 23.1.1990 by one Jugal
Kishore Gupta and for convenience we shall hereinafter
mention this application as having been filed by ’the
applicant company’. It has been submitted on behalf of the
applicant company that originally Chimanlal D. Parikh was
the sole proprietor of a firm M/s Jayant Metal Manufacturing
Company (in short ’JMMC’). On 21.11.1952 the said Chimanlal
D. Parikh converted it into a partnership firm of himself
and his Mayadevi.
Chimanlal D. Parikh died on 5.12.1952. On 22.10.1963 a deed
of partnership was made between Mayadevi and her sons,
respondents Nos.1 and 2. The business of JMMC was taken over
and continued by this partnership firm. On 7.12.1966
Mayadevi retired from the above partnership firm and
respondent Nos.1 and 2 alone continued as partners. On
13.12.1971 a private limited company was incorporated of
which the respondent Nos.1 and 2 alone were the directors.
On 1.9.1973 this private limited company also became a
partner in the partnership firm of JMMC of which respondent
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Nos.1 and 2 were the only partners. By an agreement of sale
dated 31.7.1979 the applicant company purchased 100% shares
of the private limited company of respondent Nos.1 and 2.
After the aforesaid agreement Jugal Kishore Gupta on behalf
of the applicant company also took over the entire-assets of
the company of respondent Nos.1 and 2 on 23.4.1980.It has
been further submitted on behalf of the applicant company
618
that the disputed property had become the property of the
private limited company floated by respondent Nos.1 and 2 in
1971 and respondent Nos.1 and 2 had no right to deal with
the property in their individual capacity. They had so
right and authority to create a fresh tenancy in favour of
the petitioners on 25.6.1978 and they practised a fraud
before this Hon’ble Court in obtaining the order dated
11.12.1978 by making a deliberate and intentional false
misrepresentation that they were owners of the property in
dispute and had a right to create fresh tenancy in favour of
the petitioners in their individual capacity. It has been
further submitted that the applicant company came to know of
the above facts only after the advocate for the applicant.
made inspection of papers on 20th January, 1990. In the
above circumstances the applicant company has filed the I.A.
No.1 and has made the following prayers.:
The Court may be pleased to
(a) direct that the applicant be impleaded
as respondent No.4 in the Special Leave
Petition No.4925 of 1977;
(b) order an enquiry about the fraud
practiced by the petitioner and the
respondents upon this Hon’ble Court and about
any other point or points on which this
Hon’ble Court deems fit to order an enquiry;
(c) clarify that the Undertakings given by
the petitioner and respondent No.3 was to
hand-over the possession to respondent Nos.1
and 2 for and on behalf of the applicant as
its Directors;
(d) take action against the petitioner and
respondent Nos. 1 and 3 for perjury;
(e) vacate the order dated 11th December,
1978 inasmuch as respondent Nos.1 and 2 were
not competent to enter into Tenancy Agreement
dated 25th June, 1978 creating tenancy in
favour of the petitioner;
(f) direct the petitioner and respondent
No.3 to forthwith handover vacant and peaceful
possession of the suit premises to the
applicant; and
619
(g) pass such other and further order or
orders as this Hon’ble Court may deem fit and
proper in the circumstances of the case.
This application came up for consideration before this Court
and the following order was passed on 2.4.1990:
"After hearing learned counsel for the
parties, we find that in the present
proceedings it is difficult to decide the
question of title to the disputed property
which includes an approximate area of 2000 sq
.
yds. of Plot No.581 Part and 582 Part in TPS
Scheme IV, Mahim, Bombay, at present in the
possession of M/s Devidayal Rolling Mills who
are claiming to be protected tenants, under
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the Rent Act. Title to this property is being
claimed by M/s Jayant Metal Manufacturing
Company Private Ltd., as well as by M/s
Prakash Chimanlal Parikh & Pankaj Chimanlal
Parikh from whom M/s Devidayal Rolling Mills
are claiming to be tenants. Since this
deputed question cannot be decided in the
present proceedings we remit the issue
relating to the title to the aforesaid
property to the High Court, Bombay with a
direction that the question of tide will be
decided after given opportunity to the parties
concerned to file affidavits, discovery and
leading evidence, etc. After hearing the
parties and examining the witnesses the High
Court will record findings and forward the
same to this Court for further orders. The
findings may be remitted to this Court within
six months. After the report is submitted to
this Court the parties are free to file
objections, if any, within three weeks
thereof. Thereafter the matter will be listed
for further orders".
In compliance of the aforesaid order of this, Court the High
Court framed the following two issues:
(1) whether the property admeasuring approx.
2000 sq. yds. of plot No.581 (pt) & polt
No.582 (pt) of TPS IV, Mahim Division, Bombay
belongs to Prakash Chimanlal Parikh and Pankaj
Chimanlal Parikh?
620
(2) whether M/s Jayant Metal Manufacturing Co.
Pvt.
Ltd. are owners of the property mentioned in Issue no.1?
The High Court after discussing the entire evidence,
recorded the finding on issue No.1 in the affirmative and
that of issue No.2 in the negative. As a result of the
above findings, the High Court has held that the property
admeasuring approximately 2000 sq. yds. belonged to Prakash
Chimanlal Parikh and Pankaj Chimanlal Parikh (respondent
Nos.1 and 2) and that M/s JMMC Pvt. Ltd. (the applicant
company) were not the owners. The High Court has sent the
report dated 13-14-16-17.8.1991. The applicant company has
filed objections on 29.10.1991 to the findings recorded by
the High Court and the petitioners have filed a counter on
23.11.1991 to the objections filed by the applicant company.
Mr. Jethmalani, learned senior counsel on behalf of the
applicant company wanted to challenge the findings recorded
by the High Court on the question of title of the disputed
property. Mr. Chidambaram, learned senior counsel appearing
on behalf of the petitioners raised a preliminary objection
that the present interlocutory application filed by the
applicant company is not maintainable and the order passed
by this Court on 2.4.1990 was passed under a misconception.
It was submitted that in spite of the findings recorded by
the High Court in their favour, he was raising the
preliminary objection that the interlocutory application
filed by the applicant company itself was not maintainable
and as such the order passed by this Court dated 2.4.1990 as
well as the entire proceedings taken in pursuance to the
said order and the findings recorded by the High Court were
without jurisdiction. It was further contended that the
Special Leave Petition No.4925 of 1977 had itself been dis-
missed by order dated 13.12.1977 and no application could
have been filed under any provision of law by the applicant
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company in the said Special Leave Petition after a lapse of
more than 12 years. In view of the above preliminary
objection raised on behalf of the petitioners, we called
upon Mr. Jethmalani to make submissions on the preliminary
objection. After hearing learned counsel for the parties at
length on the preliminary objection, we consider it neces-
sary to decide the preliminary objection first and we are
disposing of the same by this order.
It was vehemently contended by Mr. Jethmalani, learned
senior counsel that such application was maintainable under
Articles 136 and 142 of the Constitution. It was contended
that in this application apart from
621
the prayer for impleadment in the Special Leave Petition
No.4925 of 1977 a prayer was made that the fraud alleged
against the petitioners should also be enquired. It was
submitted that this Hon’ble Court while passing the order
dated 2.4.1990 had allowed the prayer for impleadment by
implication and the second prayer expressly when this Court
had framed the issue of title and had directed the High
Court to send its findings after giving an opportunity to
the parties to file affidavits, discovery and leading
evidence etc. It was also submitted that apart from the
above reliefs it was also prayed that the order dated 11th
December, 1978 regarding the satisfaction of the decree be
also set aside. It was submitted that this Hon’ble Court
has appellate powers from every decision of every Court or
Tribunal and Art.142 of the Constitution gives power to this
Hon’ble Court to do justice in any cause or matter raised
even in a Special Leave Petition already dismissed or
disposed of Reliance is placed on the decision of this
Hon’ble Court in Union Carbide Corporation Ltd Others v.
Union of India and Others, [1991]4 S.C.C. 584. It was
contended that the application is covered by Section 47 of
the Code of Civil Procedure or within the principles of
justice underlying Section 47 C.P.C. read with Art.142 of
the Constitution.
It was also contended that by order dated 2.4.1990 this
Hon’ble Court had granted two prayers made in the,
application. Firstly, this Hon’ble Court had impleaded the
applicant company and had recorded its right of being heard
in the matter and secondly, had decided to make an enquiry
into the fraud complained of by the applicant company by
directing the High Court to make a report on the question of
tide..-The order dated 2.4.1990 had been passed after
hearing the parties. It would cause an irreparable injury
to the applicant company in case the order dated 2.4.1990 is
recalled. The applicant company has already been put to
enormous costs and expenses in conducting the proceedings
before the High Court and a long and valuable judicial time
has also been spent. It was submitted that the parties have
already suffered a protracted hearing and it would be a
travesty of justice if the parties would now be told to
start their legal remedy from the lowest court of competent
jurisdiction. It would bring justice into disrepute and
would prove the dictum ’justice delayed is justice denied’.
The order dated 2.4.1990 is neither per-incuriam not without
jurisdiction and the same being passed by this Hon’ble Court
itself after full application of mind and hearing the
parties ought to be sustained.
It was further contended that even after the passing of the
order
622
dated 2.4.1990 by this Hon’ble Court, the petitioners
had raised the plea of correctness of the said order dated
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2.4.1990 before the High Court. The High Court rejected the
said contention by a specific order dated 21.8.1990. The
High Court further granted an opportunity to the petitioners
to seek a review of the order dated 2.4.1990 from this
Hon’ble Court, but the petitioners did not avail of the said
opportunity and continued with the proceedings before the
High Court. Under these circumstances the order dated
2.4.1990 having become final cannot be impeached now in
these very proceedings. It was submitted that the principle
of res judicata applies also as between two stages in the
same litigation and any question having been decided at an
earlier stage in one way or the other cannot be allowed to
be reagitated by the parties at a subsequent stage of the
same proceedings. Once a matter is decided it is certainly
final as regards that Court is concerned. Reliance in
support of the above contention is placed on Satyadhyan
Ghosal & Ors. v. Sm. Deorajin Debi & Anr., [1960] 3 S.C.R.
590 and Y.B. Patil & Ors. v. Y.L. Patil [1977] 1 S.C.R. 320.
It was further contended that the application in question is
also maintainable under Section 47 of the Code of Civil
Procedure. It is submitted that a dispute between a decree
holder and a person claiming adverse to the decree holder
which affects the judgment debtor falls within the purview
of Section 47 of the Code of Civil Procedure. It is
contended that the consent decree dated 31.10.1961 was
modified and merged in the order of this Hon’ble Court dated
13.12.1977. By the said order dated 13.12.1977 the time
for execution of the consent decree was extended upto
1.1.1980. By another order dated 11.12.1978 this Hon’ble
Court recorded satisfaction of the executable order dated
13.12.1977 by discharging the undertakings given by the
petitioners and respondent No.3. It has thus been contended
that the applicant company being the true and absolute owner
of the disputed property was entitled to the benefit of the
modified decree dated 13.12.1977. In view of the
satisfaction recorded by this Hon’ble Court by order dated
11.12.1978, the applicant company was justified in
submitting the present application under Section 47 of the
Code of Civil Procedure for setting aside the order of
satisfaction of the decree for eviction recorded by this
Court. The respondent Nos.1 and 2 destroyed such right of
the applicant company by entering into a transaction acting
as proprietors and committed a fraud by seeking an order
dated 11.12.1978. Hence, this Hon’ble Court alone can go
into the question of such fraud.
623
it was also contended that the petitioners are also bound by
the principle of acquiescence, waiver and estoppel in view
of the fact that they did not file any review application
against the order dated 2.4.1990, instead participated in
the proceedings before the High Court for a long period of
78 days. It was also submitted that no prejudice has been
occasioned to the petitioners on account of the order dated
2.4.1990 as the finding on the question of title has been
recorded by the High Court in favour of the petitioners and
it is the applicant company who wants to assail the same and
get the question of title to be decided finally by the Apex
Court to shorten the litigation.
On the other hand it was submitted by Mr. Chidambaram,
learned senior counsel for the parties that the order dated
2.4.1990 being merely an interim order, the same can always
be varied or modified by this Court. at any later stage of
the proceedings. The prayer in the application for
impleadment filed by the applicant company has itself not
been granted so far and by the order dated 2.4.1990 no
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question has been decided nor has any right been conferred
thereby on the applicant company. This Hon’ble Court had
passed the order dated 2.4.1990 under a clear misconception
of both facts as well as law and as such the same can always
be recalled at a subsequent stage in the proceedings. The
application is not maintainable under any provision of law
including Section 47 C.P.C. The applicant company was
neither a party to the suit in which the decree for eviction
was passed nor has it come forward as a representative of
any party to the suit much less the representative of the
decree holder. It has been contended that the respondent
Nos.1 and 2 had filed an application under Order 21 rule 16
and Order 21 rule 22 C.P.C. for being substituted as decree
holders and the executing court had allowed the applications
in their favour and as such they alone were competent to
execute the decree.
It was also argued on behalf of the petitioners that
judgments which have the force of a decree are to be
distinguished from other interlocutory orders which are a
step towards the decision of the dispute between the parties
by way of a decree or a final order. Thus it has been
contended that the nature of the order dated 2.4.1990 was
merely a step towards the decision of the application filed
by the applicant company which itself is of an interlocutory
nature. It was also argued that the lease granted by
respondent Nos.1 and 2 in favour of the petitioners w.e.f.
25.6.1978 was not the subject matter of the prayers in
C.M.P. No.18403 of 1978 nor the
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subject matter of the order made by this Hon’ble Court on
11.12.1978. The fresh lease granted in favour of the
petitioners has never been the subject matter of any
proceedings in any court of law, including this Hon’ble
Court. Thus it is not open to the applicant company by
moving the above interlocutory application No.1 of 1990 to
question in any matter the fresh lease granted w.e.f
25.6.1978 or to allege that the said lease is fraudulent or
is vitiated in any other manner. Even if for arguments sake
the applicant company now wishes to challenge the aforesaid
lease granted as far back as on 25.6.1978, the applicant
company is bound to institute separate and substantive
proceedings challenging the said lease.
It has also been argued on behalf of the petitioners that in
R.A.D.718 of 1974 the applicant company being a defendant
had filed a written statement in November, 1986 in which it
had referred and questioned the grant of fresh lease dated
25.6.1978 by respondent Nos.1 and 2. Thus the stand now
taken by the applicant company that it came to know about
the aforesaid lease only after its advocate took inspection
of papers on 20th January, 1990 is totally false and the
applicant company having not come with clean hands and also
after a long delay the application is liable to be dismissed
on these grounds alone.
We have given our thoughtful consideration to the arguments
advanced on behalf of the parties and have carefully gone
through the record as well as the written arguments. As
already mentioned above the respondent Nos.1 and 2 were
substituted as decree holders by an order of the High Court
dated 10.12.1973. The petitioners having purchased the
business from Devidayal Rolling Mills, (the respondent No.3)
had filed a declaratory suit in January, 1974 in the Small
Causes Court at Bombay. In the said suit the interlocutory
application restraining the respondent Nos.1 and 2 from
executing the decree for eviction was dismissed. The
revision filed by the petitioners was also dismissed by the
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High Court and against that order the petitioners had come
before this Court by filing the above Special Leave Petition
No.4925 of 1977. The said Special Leave Petition was also
dismissed on 13.12.1977 and the time was granted to vacate
the property in dispute before the 1st January, 1980. In
pursuance to the order dated 13.12.1977 some undertakings
were given by the petitioners as well as respondent No.3 on
15.12.1977 and thereafter the petitioners and respondent
No.3 handed over the possession of the property in dispute
to
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respondent Nos.1 and 2 on 25.6.1978 and on the same day a
fresh agreement of lease was granted by respondent Nos.1 and
2 in favour of the petitioners. We are thus totally at a
loss to understand as to how any question of its title as
sought to be raised by the applicant company against
respondent Nos.1 and 2 or any question of fraud, if any, in
granting a fresh lease dated 25.6.1978 by respondent Nos.1
and 2 could at all be brought up before this Court straight
away. These questions now sought to be raised by the
applicant company in the present application have nothing to
do with the controversy raised in the main Special Leave
Petition itself which also came to be dismissed long back on
13.12.1977. In our view such controversy regarding the
alleged applicant company’s title to the property or the
question of alleged fraud in respect of creating a fresh
tenancy dated 25.6.1978 in respect of that property had no
relevance even remotely with the question raised in the
Special Leave Petition. Such questions of title or fraud
could neither be gone into in a Special Leave Petition in
exercise of its jurisdiction under Art. 136 or 142 of the
Constitution nor could the same be raised under Section 47
of the Code of Civil Procedure in the disposed of Special
Leave Petition nor by way of any interlocutory application.
The order dated 2.4.1990 appears to have been passed under a
clear misconception that it will aid the final decision on
the application. This Court while passing the order dated
2.4.1990 did not decide any controversy nor did it grant the
application for impleadment filed by the applicant company.
There was no proceeding pending at all before this Court in
respect of the above Special Leave Petition in which the
present application could have been filed after a lapse of
12 years and it was an apparent and obvious mistake on the
part of this Court in entertaining such application. We
cannot accept the submission made on behalf of the applicant
company that the order dated 2.4.1990 is final and binding
so as to compel us to decide the question of title.
The Special Leave Petition itself was filed by the
petitioners who were claiming as tenants in the property in
dispute against the order of the High Court affirming the
order of the Small Causes Court refusing to grant interim
injuction against the execution of the decree for eviction.
Thus the controversy, if any, raised, in the main special
Leave Petition itself had nothing to do with the question of
any dispute of title between the respondent Nos.1 and 2, and
the applicant company.
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It may be noted that according to the applicant company’s
own case they had made an agreement of purchasing the 100%
shares of the private limited company of respondent Nos.1
and 2 on 31.7.1979 and thereafter Jugal Kishore Gupta on
behalf of the applicant company took over the entire assets
on 23.4.1980. Thus the applicant company cannot be said to
have anything to do with the two orders passed by this Court
on 13.12.1977 and on 11.12.1978 nor could the applicant
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company be regarded as one in any way adversely affected by
the agreement dated 25.6.1978 of new tenancy as till then it
had not taken any steps of purchasing the said shares.
There was no scope or even any semblance of any controversy
now sought to be raised by the applicant company which could
have been raised or decided in the main Special Leave
Petition itself. That apart a Bench of three Judges of this
Court on 13.12.1977 had dismissed the Special Leave Petition
and so far as the order dated 11.12.1978 is concerned it
neither decided any controversy nor changed its earlier
order of dismissal of the Special Leave Petition. We are
clearly of the view that this interlocutory application
filed by the applicant company on 23.1.1990 in the dismissed
Special Leave Petition as back as on 13.12.1977, was totally
misconceived and there was no provision under which the same
could have been entertained by this Court.
It is no doubt true that on account of the order dated
2.4.1990 both the parties have been put to an enormous cost
but this cannot be a justification for entertaining a
controversy which did not arise even remotely in the main
Special Leave Petition and which could only be decided by
way of regular substantive proceedings. in the lowest court
of competent jurisdiction. This Court cannot entertain and
decide the question of tide in respect of an immovable
property raised for the first time before this Court by way
of an interim application in a dismissed Special Leave
Petition. There is no question of any acquiescence, waiver
or estoppel against a party where the error is committed by
the Court itself. This Court is under a bounden duty to
correct its own mistake. So far as the case of Union
Carbide Corporation v. Union of India, (supra) is concerned
the same has no relevance and can be of no assistance at all
to the applicant company in the facts and circumstances of
the present case.
The principle laid down in Satyadhyan’s case (supra) and YB.
Patil & Ors. (supra) is to the effect that the principle of
res-judicata can be
627
invoked not only in separate subsequent proceedings but they
can also get attracted in subsequent stage of the same
proceedings. There cannot be any difference of opinion in
the said view. However, this question would depend on the
facts and circumstances of each case and the nature of the
order passed at an earlier stage of the proceedings. In
Arjun Singh v. Mohindra Kumar & Ors., [1964] 5 S.C.R. 947 it
was observed as under:
"Where the principles 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
provision made on matters touching such
decisions are some of the factors to be
considered before the principle is held to be
applicable".
So far as the question of rendering justice in a civil
litigation is concerned, it can only be known after the
final culmination of such litigation and the party
succeeding can be adequately compensated by way of costs.
It has been rightly said that "cost is a panacea in law
which heals every sore in litigations. In the present
system of adversarial civil litigation between the parties
it may turn out to be costly as well as time consuming, if
either of the parties decide to bring all or any controversy
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for decision upto the Apex Court. In our considered view
the question of title to an immovable property or fraud in
any transaction relating to it cannot be entertained by this
Court in an interlocutory application filed by a third party
in a Special Leave Petition dismissed as long ago as 12
years discarding all procedural requirements. We are thus
clearly of the view that the order dated 2.4.1990 did not
decide any issue finally nor can it be considered as binding
or operative as res-judicata or otherwise.
It is true that the High Court has recorded a finding in
favour of the petitioners and against the applicant company
and as such the applicant company is prejudiced if the said
finding remains in tact. However, in view of the fact that
we are upholding the preliminary objection, it is necessary
in the interest of justice to declare the entire proceedings
in the High Court including the findings recorded on the
question of title as non-est and not binding on any of the
parties concerned. We order accordingly. Although we have
refrained from making any observations on the merits of the
issues
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raised in the I.A. regarding the questions of alleged title
and alleged fraud we make it clear that this Judgment or any
observations made therein will not in any manner prejudice
the rights of any of the parties with regard to the title of
the property in dispute or any question of fraud sought to
be raised by the applicant company in an appropriate forum.
Subject to the above, we dismiss Interlocutory Application
No.1 of 1990 with no order as to costs.
R.P.
Application dismissed.
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