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N. M. KASLIWAL AND N. VENKATACHALA, JJ.
Interlocutory Appln. No. 1 of 1990 (in Spl. leave Petn. (Civil) No. 4925 of 1977), D/- 24-3-1993.
M/s. Devidayal Rolling Mills, Petitioner
Versus
Prakash Chiman Lal Parikh and others, Respondents.
Constitution Of India,1950- Article,142 - Civil Procedure Code ,1908 - Section 47 - Rule 16 - Order 21 - Enquiry - Claim as tenants in property - Case is that above property belonged Parikh- He executed a will Parikh hereinafter referred to as respondents Parikh died Rolling and Refineries hereinafter referred as respondent was occupation said property as a tenant widow Parikh and executors named in will It dated acting on behalf of respondents filed a suit for eviction against respondent Bombay High Court order to execute said decree submitted an application in Bombay -High Court said applications were allowed and respondents were substituted as decree-holders by an order of High Court Rolling Mills hereinafter referred to as petitioners appeared in execution proceedings and contended that they had purchased business along with interest in disputed property from Rolling and Refineries Private Limited respondent -Held, Principles of res invoked in case different stages of proceedings in same suit nature of proceedings scope of enquiry which adjectival law provides for decision being reached as well as specific provision made on matters touching such decisions are some of factors to be considered before principle is held to be applicable party succeeding can be adequately compensated of costs- It has present system of litigation between parties it may turn out to be costly as well as time consuming if either of parties decides to bring all or any controversy for decision up to apex Court- In our considered view question of title an immovable property or fraud in any transaction relating to it cannot entertained by this Court in an interlocutory application filed by a third party a Special Leave Petition dismissed as long ago discarding all procedural requirements- Court are thus clearly of view that order did not decide any issue finally nor can it be considered as binding or operative as otherwise petitioners and against applicant-company and such applicant-company is prejudiced if said finding remains intact- However in view of fact that court are upholding preliminary objection it is necessary in interest of justice to declare entire proceedings in High Court including findings recorded on question of title non and not binding on any parties concerned- Court order accordingly- Although court have refrained from making any observations on merits of issues raised in regarding questions of alleged title and alleged fraud court make it clear that this judgment or any observations made therein will not in any manner prejudice rights of any of parties with regard to title property in dispute or any question of fraud sought to be raised by applicant-company in an appropriate forum – Order accordingly
Judgement
KASLIWAL, J.:- A plot of land measuring 2000 sq. yards situated at Syani Road Bombay is the subject matter of this litigation. One part of the case is that the above property belonged to Chimanlal D. Parikh. He executed a will on 20-10-1952 in favour of his minor sons Prakash Chimanlal Parikh and Pankaj Chimanlal Parikh (hereinafter referred to as respondents Nos. 1 and 2). Chimanlal D. Parikh died on 5-12-1952. Devidayal Rolling and Refineries Pvt. Ltd. (hereinafter referred to as respondent No. 3) was in occupation of the said property as a tenant. Smt. Mayadevi widow of Chimanlal D. Parikh and executors named in the will It dated 20th October, 1952 acting on behalf of respondents Nos. 1 and 2 filed a suit No. 344 of 1958 for eviction against respondent No. 3 in the Bombay High Court. On 31-10-1961 a consent decree for eviction was passed in the above suit with the condition that the decree shall not be executed for a period of 12 years i.e. up to 31-10-1973. The respondents Nos. 1 and 2 in order to execute the said decree submitted an application under Order 21, Rule 16 and Order 21, Rule 22, C.P.C. in the Bombay -High Court. The said applications were allowed and respondents Nos. 1 and 2 were substituted as decree-holders by an order of the High Court dated 10-12-1973. M/s. Devidayal Rolling Mills (hereinafter referred to as "the petitioners") appeared in the execution proceedings and contended that they had purchased the business along with interest in the disputed property from Devidayal Rolling and Refineries Private Limited, the respondent No. 3. The petitioners also filed a declaratory suit in January, 1974 in the Small Cause Court at Bombay for being declared as tenants in the above property. The petitioners also filed an interlocutory application for restraining the respondents Nos. 1 and 2 from executing the decree for eviction. The respondents Nos. 1and 2 denied any tenancy having been created in favour of the petitioners. The Small Cause Court rejected the grant of any injunction in favour of the petitioners and a revision filed against the said order was also dismissed by the High Court. The petitioners then filed a Special Leave Petition No. 4925 of 1977 in this Court, after the disposal of which, the present interim application No. I has been filed.
2. A Bench of three Judges of this Court on 13-12-1977 dismissed the Special Leave Petition but respondents Nos. 1 and 2 agreed not to execute the decree before 1 st January, 1980 on an usual undertaking to be given by the petitioners as well as respondent No. 3. The order dated 13-12-1977 having an important bearing in the case is reproduced as under:
Upon hearing counsel, the Court passed the following -
ORDER
"Special Leave Petition is dismissed. However, respondents 1 and 2 agree not to execute the decree before the 1 st of January, 1980, on the undertaking given by Mr. Nariman on behalf of the petitioners and respondent No. 3 that the petitioners and respondent No. 3 shall hand over vacant and peaceful possession of the premises to respondents 1 and 2 on or before the said date. The petitioners and respondent 3 further undertake that they will not raise any contention hereafter that they were or are in possession of the premises either as licensee or tenants of respondents 1 and 2 under the unamended or the amended Rent Act. Arrears of compensation according to the consent decree shall be paid within four weeks from today and further compensation shall be paid before the 10th of every month at the rate of Rs.,4000/- per month. All other terms of the consent decree will remain. The petitioner and respondent No. 3 shall file through their Managing Director an affidavit in terms of this order, within two weeks".
3. In pursuance to the above order, undertakings were filed on 15-12-1977. Subsequently an application C. M.P. No. 18403 of 1978 was submitted on 8-8-1978 to the effect that after the filing of the undertakings the petitioners and respondent No. 3 had
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