IN-Abs/test-data/summary/2627.txt

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 compromise decree.
In pursuance of the compromise a further agreement dated December 1, 1960 was executed between 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 section 28 of the Bombay Rents, Hotel 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 as res judicata so that R & F could not question that the agreements between them and respondent No. 1 constituted a lease.
Issue No. 12 raised the question whether in view of the consent decree R & F were estopped from leading evidence and asking questions in cross examination to show that the said agreements did not constitute a lease.
Issue No. 13 raised the question whether section 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 counsel for the defendants sought to ask a witness for respondent No. 1 whether the agreement dated November 27, 1954 was a commercial transaction and not a lease respondent No. 1 objected to the question.
The objection was disallowed by the trial court.
In revision under section 115 of the Code of Civil Procedure the High Court did not interfere with the trial court 's order in respect of issues Nos. 12 and 13.
In respect of issue No. 11, the High Court held that the agreement dated November 27, 1954 must in view of the consent decree in suit No. 149 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 agreement 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 filed 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.
(ii) By ordering that a question may properly be put to a witness who was examined, no case was decided by the Trial Court within the meaning of section 115 of the Code of Civil Procedure.
The expression 'case ' is not limited in its import to the entirety of the matter 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 only if the court adjudicates, for the purpose of the suit, some right or obligation of the parties in controversy.
[441H 442C] Major section section Khanna vs Brig.
F. J, Dillon, [1964] 4 S.C.R. 409, referred to.
(iii) 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 contest in a suit may operate as res judicata only if there is an adjudication by the court : the terms of section 1 1 of the Code leave no scope for a contrary view.
[441E]