Bench:
Hon'ble Justice J. C. Shah and Hon'ble Justice G. K. Mitter
Appellant:
Baldevdas Shivlal
Respondent:
Filmistan Distributors (India) (P) Ltd.
Issue
- Whether every order passed by a Trial Court Judge in a suit be regarded as "case decided" under Section 115 of CPC?
- Whether the High Court is authorised to exercise its revisional jurisdiction under Section 115 in a case not decided by the Lower Court?
Facts
- A building in the town of Ahmedabad used as a cinema theatre belonged originally to Messrs.
- The receivers granted a lease of the theatre on certain terms and conditions to two persons, Raval and Faraqui, by an agreement dated November 27, 1954, between Raval and Faraqui, on the one hand and Messrs, Filmistan Distributors Pvt Ltd. hereinafter called Filmistan--on the other hand.
- Right to exhibit cinematograph films was granted to the latter on certain terms and conditions.
- "Filmistan'' instituted suit No. 149 of 1960 in the Court of the Civil Judge at Ahmedabad against Raval and Faraqui and two other persons claiming a declaration that it was entitled pursuant to the agreement dated November 27, 1954, to exhibit motion pictures in the theatre.
- By an order dated December 1, 1960 the suit was disposed of as compromised. It was inter alia agreed that Raval and Faraqui were bound and liable to allow Filmistan to exercise its ‘exhibition rights' in the theatre and that Raval and Faraqui, their servants and agents were not to have any right to exhibit any picture in contravention of the terms and conditions of the agreement dated November 27, 1954; and that Raval and Faraqui shall "execute and register" an agreement in writing incorporating the said agreement with the variation as to rental.
- Pursuant to this agreement, a fresh agreement was executed on December 1, 1960. On September 1, 1963. Filmistan filed a suit in Small Causes Court at Ahmedabad, inter alia, for a declaration that as sub-lessee or as lessee under law, it was entitled to obtain and remain in possession of the theatre and to exhibit cinematograph films and to hold "entertainment performances" etc. in the theatre, and that one Shabeer Hussain Khan Tejabwala had no right, title or interest in the theatre, that the defendants in the suit be ordered to hand over vacant and peaceful possession of the theatre, and the defendants, their servants and agents be restrained by an injunction from interfering directly or indirectly with its rights to obtain and remain in possession of the theatre or any part thereof and to exercise its right of exhibiting "motion pictures" and entertainment performances etc.
- The suit was filed against the receivers in insolvency of the owners of the theatre, against Raval and Faraqui, against Tejabwala and also against Baldevdas Shivlal, who claimed to be the owner of the theatre.
- The suit was based on the claim by Filmistan as lessees or sub-lessees of the theatre and was exclusively triable by the Small Causes Court by the virtue of S. 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947.
- The case gave rise to three more issues besides the ones already mentioned therein: 11. Whether in view of the said consent decree in suit No. 149 of 1960 defendants Nos. 5 and 6 are debarred on principles of res judicata from agitating further? 12. Whether in view of the said consent decree, defendants 5 and 6 are estopped from contending and leading any evidence and putting questions in cross-examination of plaintiffs witnesses? and 13. Whether in respect of the terms of the said consent decree defendants Nos. 5 and 6 are debarred from leading any evidence of the, plaintiffs witnesses in view of s. 92 of the Evidence Act ?
- The Trial Court rejected the claim to validate the issues raised, and consequently, Filmistan moved the High Court of Gujarat under Section 115 of CPC.
- The High Court validated the three issues, and barred the Trial Court Judge from proceeding with the trial.
- Aggrieved by the High Court's order, the Appellant approached the Supreme Court.
Appellant’s Contentions
- The Appellants contended that invoking revisional jurisdiction of the Gujarat High Court under Section 115 of CPC was not correct.
- According to the requirements of S. 115 of CPC, the case was not decided by the Trial Court, and therefore, the High Court had no jurisdiction to entertain the suit.
Respondent’s Contention
- Counsel for Filmistan stated that enquiry into the nature of the legal relationship arising out of the agreement dated December 1, 1960 "was barred by the principle of res judicata and estoppel under the provisions of s. 92 of the Evidence Act", since the question was already concluded by the consent decree in suit No. 149 of 1960.
Relevant Paragraphs (Paragraph Numbers 6, 7, and 9 of the Original Judgement)
- Under Section 115 of CPC, the High Court is vested with the power to call for record of any case decided by any Court subordinate to it and in which no appeal lies provided three conditions are satisfied: (1) the decision is of a Court subordinate to the High Court; (2) there is a case which has been decided by the subordinate Court; and (3) the subordinate Court has erred in exercising its jurisdiction properly.
- The Trial Judge did not decide on any issues at the stage of recording evidence. The observations made by him relate to the arguments advanced at the Bar and cannot be regarded even indirectly as a decision on any of the issues.
Judgement
The Supreme Court held that the High Court proceeded to decide matters on which the Trial Court had recorded no final decision, and that which could not be decided by the High Court until the parties had opportunity to lead evidence thereon. In the judicial precedents, it was not observed that every order of the Court in the course of a suit amounts to a case decided. And therefore, in this case, the order of the Trial Court would not amount to a case decided.
Consequently, the appeal was allowed and the order of the High Court was set aside. The Trial Court was then directed to proceed with and dispose of the trial. The Court further directed Filmistan to pay the costs of the appeal in the High Court.
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