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2013 (12) TMI 1673 - SC - Companies LawEviction on the ground of illegal subletting - Unlawful subletting by the respondent-company - Seeking eviction of the Company in liquidation from the premises - Tenancy rights of the company in the tenanted premises are not the assets for the purpose of liquidation proceedings - rights of the company w.r.t. the landlord or tenants did not change- liberty to mention - Plea of RES JUDICATA- HELD 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. 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. The principle of 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. It operates at the successive stages in the same litigation but the basic foundation of Res Judicata rests on delineation of merits and has at least an expression of an opinion for rejection of an application. In order to attract it, 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 The appeal was allowed and the order of set aside was passed by the Division Bench and restore that of the learned Company Judge. The first respondent is directed to pay ₹ 50,000/- to the appellant towards costs of the appeal.
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