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TMI Blog2013 (12) TMI 1673X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... auses 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der 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[AIR 1964 SC 993] 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 59] 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[(1998) 7 SCC 105], 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[(2005) 10 SCC 331], 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[(1970) 3 SCC 900], wherein the leave had been obtained at the time of filing of the suit and the question was whether fresh leave ought to be obtaine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Smt. Deorajin Debi and another [AIR 1960 SC 941], 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 accordin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 adjudicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urpose 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[(1976) 4 SCC 66] 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 sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd, 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 adju ..... 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