IMPORTANT POINT
Principle of res judicata discussed.

JUDGMENT

Dipak Misra, J.

1. Leave granted.

2. This appeal, by special leave, is directed against the judgment and order dated 23.6.2010 passed by the Division Bench of the High Court of Judicature at Bombay in Appeal No. 262 of 2007 reversing the judgment and order passed by the learned single Judge in Company Application No. 720 of 2006 in Company Petition No. 201 of 1994 whereby the learned single Judge had granted leave to the appellant to institute a suit for eviction against the respondent therein.

3. The broad essential facts giving rise to the present appeal are that on 17.6.1975 the father of the appellant entered into an agreement of leave and licence with respondent No. 2 - Company, namely M/s. Poysha Industrial Co. Ltd. in respect of a flat owned by him. As put forth by the appellant, the 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 was only in the clear case where there is no valid or legal subsisting tenancy or sub-tenancy that the premises could be returned to the landlord. The said order was assailed before the Division Bench which by order dated 22.8.2000 accepted the reasoning ascribed by the learned single Judge and dismissed the appeal.

4. As the factual matrix would further undrape, the father of the appellant filed an application for amendment of the plaint in the suit for incorporation of the certain other grounds including the unlawful subletting by the respondent-company to the first respondent and the said amendment was sought to be made in terms of Section 3(1)(b) of the Bombay Rent Act, 1947. Eventually, by order dated 9.11.2000 the said application for amendment was rejected on the ground that the Bombay Rent Act had been repealed on 31.3.2000.

Thereafter, Suit No. 226/336 of 2001 was instituted in the Small Causes Court for eviction on the ground of illegal subletting. As set forth, the said suit was filed after obtaining leave from the Companies Court under Section 446 of the Companies Act, 1956 (for short "the 1956 Act"). On 2.1.2002 as the original plaintiff, the father of the present appellant expired, an application for substitution was filed and thereafter the legal representatives including the appellant were brought on record vide order dated 28.3.2002. As the factual matrix would unveil, the said suit was withdrawn on 12.7.2004.

5. On 21.9.2005 the appellant terminated the tenancy and thereafter on 18.10.2005 filed CA No. 45 of 2006 before the learned Company Judge under Section 446 of the 1956 Act seeking permission to file eviction suit in the Small Causes Court as the respondent - Company was not entitled to protection under Maharashtra Rent Control Act, 1999 (for brevity "the 1999 Act") in view of Section 3(1)(b) of the said Act.

6. The learned Company Judge on 23.2.2006, on the basis of a statement made by the contesting respondent, granted permission for filing