Whether in view of the said companysent decree, defendants 5 and 6 are estopped from companytending and leading any evidence and putting questions in crossexamination of plaintiffs witnesses to show that the said document dated November 27, 1954 as companyfirmed by their letter dated January 31, 1955 and further companyfirmed by document dated December 1, 1960 is number a lease ?
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 number much care was apparently exercised whether a party is entitled to lead evidence or to put questions in cross examination of the plaintiffs witnesses cannot form the subject matter of an issue.
A revision application against that order was dismissed in limine by the High Court of Gujarat.
149 of 1960.
11, 12 13 as preliminary issues.
The revision petition was entertained and elaborate arguments were advanced at the Bar.
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 by virtue of s. 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947.
A building in the town of Ahmedabad used as a cinematograph theatre belonged originally to Messrs. Popatlal Punjabhai.
After issues were raised on June 20, 1966, the plaint was amended and additional written statements were filed by the Defendants.
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 Filmistan under the agreement and that the agreement dated December 1, 1960 was number plain enough to exclude the oral evidence of the surrounding circumstances and companyduct of the parties to explain its terms and language.
5 and 6 are debarred on principles of res judicata from agitating the question that the said document dated November 27, 1954 as companyfirmed by their letter dated January 31, L13 Sup.
He also observed that the issues were number of law going to the root of the case and were on that account number capable of being decided without recording evidence.
The objection was raised as an attempt to reopen the previous decision given by the Trial Judge refusing to try issues Nos.
The Judgment of the Court was delivered by Shah, J. By insistence upon procedural wrangling in a company paratively 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.
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.
Appeal by special leave from the judgment and order dated April 17, 27, 1967 of the Gujarat High Court in Civil Revision Application 328 of 1967.
Counsel for Filmistan companytended that an enquiry into the nature of the legal relationship arising out of the agreement dated December 1, 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 companycluded by the companysent decree in suit No.
When the case reached hearing and the evidence of a representative of Filmistan was.
5 and 6 was a companymercial transaction and was number a lease ?
11, 12 13 be tried as preliminary issues.
being recorded, companynsel for the defendants asked in cross examination the question whether the agreement between the plaintiff and defendant Nos.
The question was objected to by companynsel appearing for Filmistan.
estate of the owners and on August 19, 1954, the receivers ,estate of the owners and on August 19, 1954, The receivers granted a lease of the theatre on certain terms and companyditions to two persons, Raval and Faraqui.
The objection to the question raised by Filmistan was number that it related to a matter to be decided by the Court and on which the opinion of witnesses was irrelevant.
12 and 13 may number be examined in exercise of the powers under s. 115 of the Code of Civil Procedure.
Thereafter elaborate arguments were advanced and the Trial Judge passed an order disallowing the objection.
Whether in respect of the terms of the said companysent decree as also of the said document dated November 27, 1954, as companyfirmed by their letter dated January 31, 1955 and further companyfirmed by document dated December 1, 1960 defendants Nos.
The High Court referred to a number of authorities and observed that the companyrectness of the findings of the Trial Court on issues Nos.
By an agreement dated November 27, 1954, between Raval and Faraqui on the one hand and Messrs. Filmistan Distributors India Private Ltd. hereinafter called Filmistan on the other hand, right to exhibit cinematograph films was granted to the latter on certain terms and companyditions.
The learned Judge was then requested to frame three additional issues in view of the amended pleadings the issues were Whether in view of the said companysent decree in suit No.
Filmistan then applied to the Court of Small Causes for an order that issues Nos.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
Accordingly he held that the question asked in cross examination of the witnesses for Filmistan intended to secure disclosure of the surrounding circumstances and companyduct of the parties in order to show in what manner the language of the document was related to the existing facts, companyld number be excluded.
2 and 3.
P. Amin, P. M. Amin, P. N. Dua and J. B. Dadachanji, for respondent No.
T. Desai and I. N. Shroff for the appellants.
149 of 1960 in the Court of the Civil Judge Senior Division at Ahmedabad against Raval and Faraqui and two other persons claiming a declaration that it was entitled pursuant to the agreement dated November 27, 1954, to exhibit motion pictures in the theatre.
CI/69 17 1955 and further companyfirmed by document dated December 1, 1960 is number a lease?
Filmistan instituted 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 entertainment performances etc.
By an order dated December 1, 1960 the suit was disposed of as companypromised.
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 Faraqui, their servants and agents were number to have any right to exhibit any picture in companytravention of the terms and companyditions of the agreement dated November 27, 1954 and that Raval and Faraqui shall execute and register an agreement in writing incorporating the said agreement with the variation as to rental.
On September 1, 1963, Filmistan filed suit No.
in the theatre, and that one Shabeer Hussain Khan Tejabwala had numberright, title 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 thereof and to exercise its right of exhibiting motion pictures and entertainment performances etc.
P. Kapur, for respondents Nos.
1940 of 1967.
Pursuant to this agreement, a fresh agreement was executed on December 1, 1960.
Three sets of written statements were filed against the claim made by Filmistan, but numberreference need be made thereto, since at this stage in deciding appeal the merits of the pleas raised by the defendants are number relevant.
149 of 1960 defendants Nos.
