# BALDEVDAS SHIVLAL & ANR v. FILMISTAN DISTRIBUTORS (INDIA) (P) LTD. & ORS

- **Citation:** [1970] 1 S.C.R. 435
- **Court:** Supreme Court of India
- **Decided:** 1969-04-29
- **Case number:** Civil Appeal No. 1940 of 1967
- **Bench:** J. C. Shah, G. K. Mitter
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/baldevdas-shivlal-anr-v-filmistan-distributors-india-p-ltd-ors-4804
- **Pages:** 8

## Headnote

Code of Civil Procedure, 1908, ss. 1, 115-Consent decree whether·
operates as res judicatc.-Trial Court disallowing objection
to
certain
questions in cross-examination--Order disallowing question is not a 'case·
decided' ·within meaning of s. 115-High Court's jurisdiction in revision.
R and F who held a cinema building in Ahmedabad on lease entered
on November 27, 1954 into an agreement with respondent no. 1 giving
the latter a right to exhibit cinematograph films in the said building. Later·
respondent no. 1 filed suit No. 149 of 1960 to assert his .right to exhibit
films in the building.
The suit resulted in a comp'romise decree.
In
pursuance of the compromise a further agreement dated December 1,
1960 was executed betweeu the parties. However in 1963 respondent no.
1 again filed a suit claiming as a sub-lessee or as lessee a right to exhibit
films in the said building and praying that the defendants be restrained
from interfering with that right.
The suit was filed under s. 28 of the
Bombay Rents, }Jotel and Lodging House Rates Control Act, 1947 in the
Court of Small Causes. In this suit respondent no. 1 asked the court to
try additional issues Nos. 11, 12 and 13 as preliminary issues.
In issue
no. 11 the question raised was whether the consent decree in the earlier
suit operated aa res judicata so that R & F could not question that the
agreements betw.aen them and respondent no. 1 constituted a lease.
Js3ue
no. 12 raised the question whether in view of the consent decree R & F
were estopped from leading evidence and asking questions in cross-exami·
nation to show that the said agreement~ did not constitute a lease. Issue
No. 13 raised the question whether s. 92 of the Indian Evidence Act
debarred R & F from leading evidence to the effect that the documents
in question did not constitute a lease.
The Trial CoUrt refused to try
these as preliminary issues and its order was upheld by the High Court.
At the hearing of the case when the cc>unsel for the defendants sought to
ask a witness for ~pondent No. 1 whether the agreement dated N ovcmber 27, 1954. was a commercial transaction and not a lease respondent
No. 1 objected to the question.
The objection was disallowed by the
trial rourt. In revision under s. 115 of the Code of Civil Procedure the
High Court did' not interfere with the triai court's order in respect of
issues Nos. 12 and 13. In respect of issue No. 11, the High Court held
that the agteement dated November 27, 1954 must in view of the consent
decree in suit No. )49 of 1960 be held to be a lease, and that the consent
decree created a bar of res judicata in respect of the issue whether the
said aJ:reement created a lease. The defendants-appellants appealed to this.
Court.
HELD : (i) The High Court had no jurisdiction to record any finding
on the issue of res judicata in a revision application :filec! against an order
refusing to uphold an objection to certain question asked to a witness under
examination. The Court erred in proceeding to decide matters on which
no decision was till then recorded by the trial court and which could
not be decided by the High Court until the parties had opportunity of
leading evidence thereon. [ 441 Fl
.(36
SUPREME COURT REPORTS
[1970) l S.C.R
(Ii) By ordering that a question may pr"P"rly be put to a witness who
A
wu exammed, no case was decided by the Trial Court within the meaning
of s. 11 S of the Code of Civil Procedure.
The expression 'case' is not
limited ia its impoit to the entirety of the matt.er in dispute in a proceeding.
Such an interpretation may result in certain cases in denying relief
to the aggrieved litigant where it is most needed.
But equally, it is not
every order of the court in the course of a suit that amounts to a case
decided.
A case may be said to be decided onJy if the court adjudicates,
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for the purpose of the suit, some right or obligation of the parties in
controversy.
[441H-442C]
MGior S. S. Khllllna v. Brig. F. /, Dillon,
( 1964) 4
S.C.R. 409,
referr

## Text

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BALDEVDAS SHIVLAL & ANR.
v.
FILMISTAN DISTRIBUTORS (INDIA) (P) LTD. & ORS.
April 29, 1969
[J. C. SHAH AND G. K. MITTER, JJ.J
Code of Civil Procedure, 1908, ss. 1, 115-Consent decree whether·
operates as res judicatc.-Trial Court disallowing objection
to
certain
questions in cross-examination--Order disallowing question is not a 'case·
decided' ·within meaning of s. 115-High Court's jurisdiction in revision.
R and F who held a cinema building in Ahmedabad on lease entered
on November 27, 1954 into an agreement with respondent no. 1 giving
the latter a right to exhibit cinematograph films in the said building. Later·
respondent no. 1 filed suit No. 149 of 1960 to assert his .right to exhibit
films in the building.
The suit resulted in a comp'romise decree.
In
pursuance of the compromise a further agreement dated December 1,
1960 was executed betweeu the parties. However in 1963 respondent no.
1 again filed a suit claiming as a sub-lessee or as lessee a right to exhibit
films in the said building and praying that the defendants be restrained
from interfering with that right.
The suit was filed under s. 28 of the
Bombay Rents, }Jotel and Lodging House Rates Control Act, 1947 in the
Court of Small Causes. In this suit respondent no. 1 asked the court to
try additional issues Nos. 11, 12 and 13 as preliminary issues.
In issue
no. 11 the question raised was whether the consent decree in the earlier
suit operated aa res judicata so that R & F could not question that the
agreements betw.aen them and respondent no. 1 constituted a lease.
Js3ue
no. 12 raised the question whether in view of the consent decree R & F
were estopped from leading evidence and asking questions in cross-exami·
nation to show that the said agreement~ did not constitute a lease. Issue
No. 13 raised the question whether s. 92 of the Indian Evidence Act
debarred R & F from leading evidence to the effect that the documents
in question did not constitute a lease.
The Trial CoUrt refused to try
these as preliminary issues and its order was upheld by the High Court.
At the hearing of the case when the cc>unsel for the defendants sought to
ask a witness for ~pondent No. 1 whether the agreement dated N ovcmber 27, 1954. was a commercial transaction and not a lease respondent
No. 1 objected to the question.
The objection was disallowed by the
trial rourt. In revision under s. 115 of the Code of Civil Procedure the
High Court did' not interfere with the triai court's order in respect of
issues Nos. 12 and 13. In respect of issue No. 11, the High Court held
that the agteement dated November 27, 1954 must in view of the consent
decree in suit No. )49 of 1960 be held to be a lease, and that the consent
decree created a bar of res judicata in respect of the issue whether the
said aJ:reement created a lease. The defendants-appellants appealed to this.
Court.
HELD : (i) The High Court had no jurisdiction to record any finding
on the issue of res judicata in a revision application :filec! against an order
refusing to uphold an objection to certain question asked to a witness under
examination. The Court erred in proceeding to decide matters on which
no decision was till then recorded by the trial court and which could
not be decided by the High Court until the parties had opportunity of
leading evidence thereon. [ 441 Fl
.(36
SUPREME COURT REPORTS
[1970) l S.C.R
(Ii) By ordering that a question may pr"P"rly be put to a witness who
A
wu exammed, no case was decided by the Trial Court within the meaning
of s. 11 S of the Code of Civil Procedure.
The expression 'case' is not
limited ia its impoit to the entirety of the matt.er in dispute in a proceeding.
Such an interpretation may result in certain cases in denying relief
to the aggrieved litigant where it is most needed.
But equally, it is not
every order of the court in the course of a suit that amounts to a case
decided.
A case may be said to be decided onJy if the court adjudicates,
B
for the purpose of the suit, some right or obligation of the parties in
controversy.
[441H-442C]
MGior S. S. Khllllna v. Brig. F. /, Dillon,
( 1964) 4
S.C.R. 409,
referred to.
(iii) A consent decree, according to the decisions of this Court, docs
not operate as res judicata.. because a consent decree is merely tbe record
of a contract between the panics to a suit, to \\-hich is superadded the
C·
seal of the court. A matlcr in contest in a suit may operate as res judicata
only if there is an adjudication by the court : the terms of s. 11 of the
Code leave no scope for a contrary view.
{441E]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1940 of
1967.
Appeal by special leave from the judgment an<l order dated
April 17, 27, 1967 of the Gujarat High Court in Civil Revision
Application 328 ot E'67.
S. T. Desai and I. N. Shroff, for the appellants.
M. P. Amin, P. M. Amin, P. N. Dua and/. B. Dadachan;i, for
respondent No. I.
R. P. Kapur, for respondents Nos. 2 and 3.
The Judgment of the Court was delivered by
Shah, J. By insistence upon procedural wrangling in a comparatively simple suit pending in the Court of Small Causes at
Ahmedabad the parties have effectively prevented all progress in
the suit during the last six years.
A building in the town of Ahmedabad used as a dnematograph theatre belonged originally to Messrs. Popatlal Punjabhai.
estate of the owners and on August 19,
1954, the receivers
estate of the owners and on August 19, 1954, 1he receivers
granted a lease of the theatre on certain terms and conditions to
two persons, Raval and Faraqui. By an agreement dated November 27, 1954, between Raval and Faraqui on the one hand and
Messrs. Filmistan Distributon (India) Private Ltd. hereinafter
called 'Filmistan--0n .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 Ahmcdabad against Raval
and Faraqui and two other persons claiming a declaration that it
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BALDBVDAS v. FILMISTAN LTD. (Shah, /.)
437
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 Paraqui, 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 agieement with the
variation as to rental. Pursuant to this agreement, a fresh agreoment was executed on December l, 1960. On September 1,
1963, Filmistan filed suit No. 1465 of 1963 in the Court of
Small Causes at Ahmedabad, inter alia, for a declaration that as
sub-lessee or as lessee under law it was entitled to obtain and .
remain in possession of the theatre and to exhibit cinematograph
films and to hold "entertl!inment performances" etc. in the theatre,
and that one Shabeer Hussain Khan Tejabwala had no right, title
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or interest in the theatre, that the defendants in the suit be ordered
to hand over vacant and peaceful possession of the theatre, and
the defendants, their servants and agents be restrained by an
injunction from interfering directly or indirectly with its rights
to obtain and remain in possession of the theatre or any part
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thereof and to exercise its right of exhibiting "motion pictures"
and entertainment performances etc.
This suit was filed against
the receivers in insolvency of the owners of the theatre, against
Raval and Faraqui, against Tejabwala and also against Baldevdas
Shivlal who claimed to be the owner of the theatre. The suit was
based on the claim by Filmistan as lessees or sub-lessees of the
theatre and was exclusively triable by the Court of Small Causes
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by virtue of s .. 28 of the Bombay Rents, Hotel and Lodging
House Rates Control Act, 194 7.
Three sets of written statoments were filed against the claim made by Filmistan, but no
reference need be made thereto, since at this stage in decid.ing
appeal the merits of the pleas raised by the defendants are not
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relevant
After issues were raised on June 20, 1966, the plaint
was amended and additional written statements were filed by the
defendants.
The learned Judge was then requested to frame
three additional issues in view of the amended pleadings : the issues
were:
"1. Whether in view ol the said consent decree in
suit No. 149 of 1960 defendants Nos. 5 and 6 are
debarred on principles of res judicata from agitating tile
question that the said document dated ·November 27,
1954 as confirmed by their letter dated. January 31,
Ll3 Sup.CI/ 69-17
438
SUPREME COUllT REPORTS
[1970] I S.C.ll
1955 and further confirmed by document dated DecemA
ber I, 1960 is not a lease ?
12. Whether in view of the said consent decree,
defendants 5 and 6 are estopped from contending and
leading any evidenccr and puttin6 questions in crossexamination of plaintiffs witnesses to show that the said
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document dated November 27, 1954 as confirmed by
their letter dated January 31, 1955 and further confirr.icd by document dated December I, J 960 is not a
lease?
13. Whether in respect of the terms of the said consent decree as also of the said document dated NovemC
ber 27, 1954, as confirmed by their Jetter dated
January 31, 1955 and further confirmed by document
dated December I, 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 ol 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 a.ny part thereof was not likely to be
disposed of on these issues, and that ordinarily in "appealable
~"
the Court should, as far as possible, decide all the issues
t?llether 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 bei.ng decided without recording evidence.
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A revision application against that order was dismissed in
limine by the High Court of Gujarat.
When the case reached
hearing and the evidence of a representative of Filmistan was
being recorded, counsel for the defendants asked in cross-examinaG
tion the question whether the "agreement between the plaintiff and
defendant Nos. 5 and 6 was a commercial transaction and was not
a lease ?"
The question was objected to by counsel appearing for
Filmistan.
Thereafter elaborate arguments were advanced and
the Trial Judge passed an order disallowing the objection.
The objection to the question raised by Filmistan was not that
it related to a matter to be decided by the Court and on which the
opinion of witnesses was irrelevant. The objection was raised as
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BALDl!VDAS v, FILMISTAN LTD. (Shah, J.)
43t
an attempt to reopen the previous decision given by the Trial Judge
refusing to try issues Nos. 11, 12 & 13 as preliminary issues.
Counsel for Filmistan contended that an e,nquiry into the nature
of the legal relationship arising out of the agreement dated December l, 1960 "was barred by the principle of res judicata and
estoppel under the provisions of s. 92 of the Evidence Act", since
the question was already concluded by the conseint decree in suit
No. 149 of 1960.
The Trlal Judge observed that he had carefully gone through the consent decree and the registered agreement
dated December 1, 1960, and he found that the consent decree
had not decided that the transaction between the parties of the
year 1954 was in the nature of a lease; that in the plaint in the
earlier suit it was not even averred that the rights granted were'
in the nature of leasehold rights; that suit No. 149 of 1960 was.
for declaration of the rights of Filmistan to exhibit motion pictures.
in the theatre under the agreement dated November 27, 1954,
and for an injunction restraining the defendants from violating the
said rights of FiJmistan under the agreement; and that the agreement dated December l, 1960 was "not plain enough to exclude,
the oral evidence of the surrounding circumstances aind conduct
of the parties to explain its terms and language".
Accordingly
he held that the question asked in cross-examination of the witnesses for Filmistan intended to secure disclosure of the surround-·
ing circumstances and conduct of the parties in order to show in
what manner the Jainguage of the document was related to the·
existing facts, could not be excluded.
The Court also rejected the
contention 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 revisiqn 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 No&.
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:
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"The question then arises for cQllsideration 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 i1;
in fact barred by res judicata, then the Court has no
SUPREME COURT REPORTS
(1970] I SCR.
jurisdiction on principles of res judicata to go into that
question or to decide that question over again to the
extent to which the Court, viz., the trial court in the
instant case, proposed to go into that question and allow
the whole question, that was closed once for all by consent decree of December 1, I 960, to be reopened, it is
proposing to exercise the jurisdiction which is not vested
in it by law.
It is not open to any Coun of law to try
@ issue over again or reapen the same if an earlier
decision operates as res judicata.
Once the jurisdiction
ol' the Court has been taken away, any proposal to reopen the question closed by the earlier decision would be
exercise of jurisdiction which is not vested in the Court
by law and to that extent the decision would become
revisable, even if it is the decision as to the res judicata
of an issue",
:and concluded :
"It is not open to me in revision at this stage to
express any opinion about the rights and contentions of
the parties with reference to the agreement of December I, I 960. But the only thing that caai be said is that
so far as the agreement of November 27, 1954, is concerned, it must be held, in view of the consent decree
of December 1, 1960, that that document of November 27, 1954, created a lease ....... .
The consent decree must be held to create a bar of
res judicata as far as the question of document of November 27, I 954. creating a lease is concerned.
The
learned Judge will not proceed with the trial".
By s. 115 of the Code of Civil Procedure the High Court is
invested with power to call for the record of any case decided by
any Court subordinate to such High Court and in which no appeal
lies thereo, if such subordinate court ap~(
a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed
to exercise a jurisdiction so vested, or ( c) to have acted ~n the
exercise of its jurisdiction illegally or with material irregularity,
and to make such order in the case as it thinks fit.
Exercise of
the power is broadly subject to three important conditions ( 1 )
that the decision is of a Court subordinate to the High Court; (2)
that there is a case which has been decided by the subordinate
Court; and (3) that the subordinate Court has exercised jurisdiction not vested in it by law or to have failed to exercise a jurisdiction so vested, or to have acted in the exercise of its jurisdiction
illegally or with material irregularity.
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BALDBVDAS v. FILMISTAN LTD. (Shah,!.)
441
Jin the present 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 FUmistan. The Court gave no finding expressly
or by implication on the issue oi res judicata or any other issue.
In the view of the Trial Coqrt the question whether the legal relatio,nship arising out of the agreement dated December l, 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 inature 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 issue~ at that stage.
The observations made by him
obviously Telate to the arguments advanced at the Bar and can
in no sense be regarded even indirectly as a decision on any of the
issues.
Jilut the. Hi~ Court has recorded a finding that the agree-·
ment dated November 27, 1954, created a lease and that the
consent decree opefated as res judicata. A consent decree, according to the decisions of this Court, does not operate as res judicata,
because a consent decree is merely the record of a contract between
the parties to a suit, to which is superadded the seal of the Court.
A matter in. c~test in a suit may operate as res judicata only if
there is an adjudication by the Court ; the tenns of s. 11 ot the
Code leave no scope for a contrary view.
Again it was for the
Trial Court in the .first instance to decide that question and thereafter the High Court could, if the matter were brought before it by
way of appeal or in exercise of its revisional jurisdiction, have
decided that question.
In our judgment, the High Court had no
jurisdiction to record any finding on the issue of res judicata in a
revision application filed against an order refusing to uphold an
objection to certain questi0in asked to a witness under examination.
The true nature of ·the order brought before the High Court
and the dimensiollS of the dispute covered thereby apparently got
blurred and the High Court proceeded to decide matters on which
no decision was tilI then recorded by the Trial Court, and which
could not be decided by the High Court until the parties had
opportunity to lead evidence thereon.
It may also be observed that by ordering that a question may
properly tc put to a witness who was being examined, no case was
decided by the Trial Court. The expression "case" is not limited
in its import to the entirety of the matter in dispute in an action..
SUPREME COURT REPORTS
[1970] l S.C.R.
This Court observed in Major S. S. Khanrti v. Brig. F. J.
Dillon ( 1) that the expressiQll "case" is a word of comprehensive
import : it includes a civil proceeding and is not restricted by anything contained in s. 115 of tl\e Code to the entirety of the proceeding in a civil court. To interpret the expression "case" as an
entire proceeding only and not a part of the proceeding imposes
an unwarranted restriction on the exercise of powers of superintendence and may result i.n certain cases in denying relief to the
aggrieved litigant where it is most needed and may mult in the
pe1JC!ration of gross injustice. But it was not decided in Major
S.S. Khanna"s case(') that every order of the Court in the course
of a suit amounts to a case decided.
A case may be said to be
decided, if the Court adjudicates for the purposes of the suit some
right or obligation of the parties ~ CQlltroversy; every order in the
suit cannot be re~arded as a case decided within tll.e meaning of
s. 115 of the Code of Civil Procedure.
The order passed by the High Court is set aside and the Trial
Court is directed to proceed and dispose of the suit.
We trust
that the suit will be taken up early for hearing and disposed of
expeditiously.
We recommend that the form of the issues Nos.
11, 12 and 13 will be rectified by the learned Trial Judge.
Fihnistan will pay the coats of the appeal in this Court apd
in the High Court.
·G.C.
Appeal allowed.
( t)
1964 4 S.C.R. 40'1 .
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