TMI Blog1969 (4) TMI 109X X X X Extracts X X X X X X X X Extracts X X X X ..... d. 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 (Senior Division) 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; 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 suit No. 1465 of 1963 in the Court of Small Causes at Ahmedabad, inter alia, for a declara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s also of the said document dated November 27, 1954, as confirmed by their letter dated January 31, 1955 and further confirmed by document dated December 1, 1960 defendants Nos. 5 and 6 are debarred from leading any evidence of the, plaintiffs witnesses in view of s. 92 of the Evidence Act ? In drawing up the additional issues not much care was apparently exercised : whether a party is entitled to lead evidence or to put questions in cross-examination of the plaintiff s witnesses cannot form the subject-matter of an issue. Filmistan then applied to the Court of Small Causes for an order that issues Nos. 11, 12 13 be tried as preliminary issues. The learned Judge observed that the issues were not purely of law, that in any event the case or any part thereof was not likely to be disposed of on these issues, and that ordinarily in appealable cases the Court should, as far as possible, decide all the issues together and that piecemeal trial might result in protracting the litigation. He also observed that the issues were not of law going to the root of the case and were on that account not capable of being decided without recording evidence. A revision application against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntention that there was any bar of estoppel, and held that evidence as to the true nature of the transaction was not inadmissible by virtue of s. 92 of the Evidence Act. Filmistan feeling dissatisfied with the order invoked the revisional jurisdiction of the High Court of Gujarat under s. 115 of the Code of Civil Procedure. The revision petition was entertained and elaborate arguments were advanced at the Bar. The High Court referred to a number of authorities and observed that the correctness of the findings of the Trial Court on issues Nos. 12 and 13 may not be examined in exercise of the powers under s. 115 of the Code of Civil Procedure. The Court proceeded to, observe : The question then arises for consideration whether in fact the subordinate Court has decided the question of res judicata , and that it is true that the jurisdiction of the Court of mall Causes to decide disputes between a tenant and his landlord and falling within the purview of s. 28 of the Bombay Rent Control Act is derived from s. 28 of the said Act, but at the same time if an issue is in fact barred by res judicata, then the Court has no jurisdiction on principles of res judicata to go into that ques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resent case the Court of Small Causes had only decided that a question seeking information about the true legal relationship arising out of the document could be permitted to be put to the witnesses for Filmistan. The Court gave no finding expressly or by implication on the issue of res judicata or any other issue. In the view of the Trial Court the question whether the legal relationship arising out of the agreement dated December 1, 1960 was in the nature of a lease or of other character had to be decided at the trial and the previous judgment being a judgment by consent , could not operate as res judicata , for, it was not a decision of the Court, and that the consent decree in suit No. 149 of 1960 had not decided that the agreement dated March 27, 1954, was of the nature of a lease, and that in the plaint in that suit it was not even averred that it was a lease. The Trial Judge in overruling the objection did not decide any issues at the stage of recording evidence : he was not called upon to decide any issues at that stage. The observations made by him obviously relate to the arguments advanced at the Bar and can in no sense be regarded even indirectly as a decision on any ..... X X X X Extracts X X X X X X X X Extracts X X X X
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