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Saturday, December 14, 2013

Sec.466 Company Act - permission of company court for eviction suit against a winding up company from a leased premises - earlier orders when not on merit - a subsequent order granting permission for filing eviction suit - Reversed by D.B. bench on the point of resjudicate - Apex court allowed the appeal and set aside the D.B. bench holding that there is no Res-judicata = Erach Boman Khavar ... Appellant Versus Tukaram Shridhar Bhat and another ...Respondents = Published in / Cited in / Reported in judis.nic.in/supremecourt/filename=41074

 Sec.466 Company Act - permission of company court for eviction suit against a winding up company from a leased premises - earlier orders when not on merit - a subsequent order granting permission for filing eviction suit - Reversed by D.B. bench on the point of resjudicate - Apex court allowed the appeal and set aside the D.B. bench holding that there is no Res-judicata = 

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 learned single Judge had granted leave to the appellant to
      institute a suit for eviction against the respondent therein. =

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. =

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 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.   =     

 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  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.           

     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 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 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 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.

   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  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 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 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 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
      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 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  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 others[1] 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 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 others[2].
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 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
           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 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
      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 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 others[3] 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 others[4],
while dealing with power under Section 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 others[5], 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. Ibrahim[6],  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  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 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.

  24. In Satyadhyan Ghosal and others v. Smt. Deorajin Debi and  another[7],
      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  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  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 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 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
      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
      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 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 Singh[8] 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 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 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 Kunhi[9]  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 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  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. Guruswamy[10]: -

      “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
      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 another[11].  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.
      Patil[12] 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 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 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
      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  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 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 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 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
      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   Sharma[13]  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 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 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 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 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  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.
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)                 | |(Sneh Bala Mehra)                 |
|Sr. P.A.                             | |Assistant Registrar               |

             (Signed reportable Judgment is placed on the file)
                           -----------------------
[1]    AIR 1964 SC 993
[2]    (2001) 6 SCC 512
[3]    (1994) 4 SCC 159
[4]    (1998) 7 SCC 105
[5]    (2005) 10 SCC 331
[6]    (1970) 3 SCC 900
[7]    AIR 1960 SC 941
[8]    AIR 1987 SC 1145
[9]    AIR 2003 SC 649
[10]   (1987) 100 LW 707
[11]   (2007) 8 SCC 329
[12]   (1976) 4 SCC 66
[13]   (1987) 2 SCC 179

-----------------------
  18


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