Vikram Pravinchandra Kapadia v. M/s. National Construction Co. & Ors.

11. In this background of the matter, it is necessary to set out the Order dated 19th July 2004 passed by a learned Single Judge in Writ Petition No.1536 of 2004 by which eviction decree passed by the learned Trial Court as confirmed by the learned Appellate Court is confirmed. The said order reads as under:- “1. Heard learned counsel for the petitioner. The respondent no.1 is the landlord who filed a suit for possession against the respondent no.2, a partnership firm. Subsequently, respondent no.3 was joined as a party to the suit alleging that the respondent no.2 had sublet the premises to the respondent no.3 which is a private limited company. A decree for possession has been passed. The present writ petition has been filed by son of a director of the respondent no.3 company claiming that on death of the director of the respondent no.3 he has inherited tenancy under section 5 (11) (c) of the Bombay Rent Act. The director of the respondent no.3 who had signed the written statement filed by the respondent no.3 had never claimed that he was a tenant or a subtenant in his personal capacity. Therefore, there is no question of the petitioner inheriting tenancy under section 5 (11) (c) of the Bombay Rent Act.

2. There is no merit in the petition which is hereby rejected.

3. At the request of the learned counsel for the petitioner, the execution of decree is stayed for a period of six weeks subject to the petitioner filing an undertaking in this court in usual form within a period of one week.

4. Authenticated copy allowed.” (Emphasis added) Thus, the learned Single Judge has held that the Suit has been filed against the Defendant No.1 i.e. The Wollen & Textile Industries Pvt. Ltd., which is a duly incorporated under the Companies Act, 1956 (“Companies Act”). The said Company has sublet the premises to the Defendant No.2 i.e. J. Hardacre & Co. Pvt. Ltd. The learned Single Judge has further held that the said Writ Petition has been filed by the Defendant No.3 who is the son of the director of the said Defendant No.2 - Company i.e. J. Hardacre & Co. Pvt. Ltd. and it was the claim of the present Petitioner i.e. Defendant No.3 that he has inherited the tenancy under Section 5(11)(c) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (“Bombay Rent Act”). The learned Single Judge has observed that the director of the Original Defendant No.2 - J. Hardacre & Co. Pvt. Ltd. has never claimed that he was a tenant or a subtenant in his personal capacity. The tenant was Defendant No.1 i.e. The Wollen & Textile Industries Pvt. Ltd. and subtenant was Defendant No.2 i.e. J. Hardacre & Co. Pvt. Ltd., a Company duly incorporated under the Companies Act. Thus, the learned Single Judge has held that there is no question of the present Petitioner i.e. Defendant No.3 inheriting the tenancy under Section 5(11)(c) of the Bombay Rent Act. Thus, in effect what has been held by the learned Single Judge is that the present Petitioner has no right, title and interest with respect to the suit premises and in effect he has no locus. The said order is confirmed by the Supreme Court.

12. It is also significant to note that in the said Writ Petition No.1536 of 2004, the Petitioner has raised the same ground regarding death of one of the Partner of the Respondent No.1 - Plaintiff in the year 1980 and that therefore the Partnership Firm ceased to be exist. The ground which has been raised by the present Petitioner in the Writ Petition reads as under:- “The Hon’ble Appellate Court ought to have considered that at the time of filing of the suit, Respondent No.1 (Original Plaintiff) was a registered partnership firm consisting of 2 partners viz. (1) Shri Chunilal Mehta and (2) Shri Amrutlal Mehta. However, during the pendency of the suit one of the partner Shri Chunilal Mehta died in the year 1980. Considering this position partnership firm i.e. Respondent No.1 ceased to be a partnership firm. Hence, the suit filed by the Respondent No.1 hreinabove stands abated. Considering this position no decree can be passed against the Respondent Nos. 2 and 3 and Petitioner hereinabove” In fact, the same contention is also raised in the SLP. The question of law which has been raised in the SLP reads as under:- “(i) Does not the suit abate on the death of one of the two partners, unless the plaintiffs take steps to set aside the abatement? ” Thus, a specific question of law is raised in the Writ Petition as well as in the SLP that in view of death of one of the two Partners, the Partnership Firm ceased to exist and therefore the Suit abates. In spite of raising the said contention, the Writ Petition as well as the SLP are dismissed.

13. Explanation IV to Section 11 of the Code of Civil Procedure, 1908 (“CPC”) regarding res judicata specifically provides that any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Explanation V to Section 11 provides that any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused. Thus, it is clear that the said contention is deemed to have been rejected by a learned Single Judge as well as by the Supreme Court.

14. It is settled legal position that the principle of res judicata are applicable to the same proceedings at different stages. The observations of the Supreme Court in the decision of S. Ramachandra Rao v. S. in Paragraph Nos.22, 27 and 31 are very relevant and reproduced herein below for ready reference:- “22. The doctrine of res judicata, having a very ancient history, embodies a rule of universal law and is a sum total of public policy reflected in various maxims like ‘res judicata pro veritate occipitur’, which means that a judicial decision must be accepted as correct; and ‘nemo debet bis vexari pro una et eadem causa’, which means that no man should be vexed twice for the same cause. The ancient history of this doctrine and its consistent recognition could well be underscored with reference to the following statement of law in the case of Sheoparsan Singh v. Ramnandan Prasad Narayan Singh, AIR 1916 PC 78:— “…But in view of the arguments addressed to them, their Lordships desire to emphasis that the rule of res judicata, while founded on ancient precedent, is dictated by a wisdom which is for all time. “‘It has been well said,’ declared Lord Coke, ‘interest reipublicoe ut sit finis litium, otherwise great oppression might be done under colour and pretence of law’”.-(6 Coke, 9 A.) Though the rule of the Code may be traced to an English source, it embodies a doctrine in no way opposed to the spirit of the law as expounded by the Hindu commentators. Vijnanesvara and Nilakantha include the plea of a former judgment among those allowed by law, each citing for this purpose the text of Katyayana, who escribes the plea thus:“If a person though defeated at law sue again he should be answered, ‘You were defeated formerly. This is called the plea of former judgment.” [See “The Mitakshara(Vyavahara),” Bk. II, ch. I, edited by J. R. Gharpure, p. 14, and “The Mayuka,” Ch. I, sec. 1, p. 11 of Mandlik's edition.] And so the application of the rule by the Courts in India should be influenced by no technical consideration of form, but by matter of substance within the limits allowed by law.” (emphasis supplied) ” “27. The principle that the doctrine of res judicata is attracted not only in separate subsequent proceedings but also at subsequent stage of the same proceedings is hardly of any doubt or dispute. A 3-Judge Bench of this Court in the case of Y.B. Patil (supra), has tersely underscored this principle of law in the following terms:— “4. …It is well settled that principles of res judicata can be invoked not only in separate subsequent proceedings, they also get attracted in subsequent stage of the same proceedings. Once an order made in the course of a proceeding becomes final, it would be binding at the subsequent stage of that proceeding….” ” “31. For what has been noticed and discussed in the preceding paragraphs, it remains hardly a matter of doubt that the doctrine of res judicata is fundamental to every well regulated system of jurisprudence, for being founded on the consideration of public policy that a judicial decision must be accepted as correct and that no person should be vexed twice with the same kind of litigation. This doctrine of res judicata is attracted not only in separate subsequent proceedings but also at the subsequent stage of the same proceedings. Moreover, a binding decision cannot lightly be ignored and even an erroneous decision remains binding on the parties to the same litigation and concerning the same issue, if rendered by a Court of competent jurisdiction. Such a binding decision cannot be ignored even on the principle of per incuriam because that principle applies to the precedents and not to the doctrine of res judicata.”

15. Ms. Parikh, learned Counsel has relied on Paragraph No.27 of Amali English Medium High School (supra), which reads as under:- “27. The principle of issue estoppel has been succinctly stated by the Privy Council in Hoystead v. Taxation Commissioner(1926) AC 155 at p. 166: “In the opinion of their Lordships, it is settled, first, that the admission of a fact fundamental to the decision arrived at cannot be withdrawn and a fresh litigation started, with a view to obtaining another judgment upon a different assumption of fact; secondly, the same principle applies not only to an erroneous admission of a fundamental fact, but to an erroneous assumption as to the legal quality of that fact. Parties are not permitted to bring fresh litigations because of new views they may entertain of the law of the case, or new versions which they present as to what should be a proper apprehension by the Court of the legal result either of the construction of the documents or the weight of certain circumstances. If this were permitted, litigation would have no end, except when legal ingenuity is exhausted. It is a principle of law that this cannot be permitted, and there is abundant authority reiterating that principle. Thirdly, the same principle namely, that of setting to rest rights of litigants, applies to the case where a point, fundamental to the decision, taken or assumed by the plaintiff and traversable by the defendant, has not been traversed. In that case also a defendant is bound by the judgment, although it may be true enough that subsequent light or ingenuity might suggest some traverse which had been taken. The same principle of setting parties' right to rest applies and estoppel occurs.”

16. The above observations in the decision of S. Ramachandra Rao (supra) and Amali English Medium High School (supra) are squarely applicable to the present case. It is clear that the Petitioner has already raised the said contention which is deemed to have been rejected upto the Supreme Court. In fact, it is very relevant to note that the learned Single Judge of this Court, while dismissing the Writ Petition, has in effect held that the present Petitioner has no locus and no right with respect to the suit premises.

17. The other contention which has been raised by Ms. Anita Castellino, learned Counsel appearing for the Petitioner is that the Power of Attorney dated 24th August 2000 executed by Amrutlal Zinabhai Mehta is a false and fraudulent Power of Attorney. To substantiate the said contention, she has relied on a will dated 29th April 2005 of Amrutlal Zinabhai Mehta i.e. a Partner of the Respondent/Plaintiff. She has more particularly relied on Paragraph Nos.1, 2 and 14 of the same, which read as under:- “1 I had no issue from my marriage with my wife Mrs. Jayalaxmi Mehta, therefore, I adopted Preeti Shah, who is the daughter of Champaklal Chunilal Mehta, the son of my elder brother, Chunilal Zinabhai Mehta. I have been physically unwell since 1999 and my wife and my adopted daughter, Mrs. Preeti have been looking after me. I therefore, appoint my daughter Preeti Shah to be the executrix and trustee of this my last Will.

2. Recently, my son-in-law Paresh Shah has misbehaved with my daughter, Mrs. Preeti Shah and has defrauded large amounts of money belonging to my wife and me as well as to the company Amrutlal Zinabhai Steel Private Limited. Hence, I do not wish to bequeath anything to the said Mr. Paresh Shah.

14. I declare that I have made this my last Will and Testament voluntarily of my own free Will and in a sound and disposing state of mind. I am approximately 80 years old now suffering from long illness and therefore, I have not been able to write and sign but understand and listen things normally for the last five years now. I therefore have set my left hand thumb impression on this Will in the presence of witnesses mentioned below to signify my consent/approval.”

18. In view of above, it is the contention of Ms. Anita Castellino, learned Counsel that the Power of Attorney dated 4th August 2000 is totally false and fraudulent Power of Attorney. However, it is relevant to note that the said Will is dated 29th April 2005 and the Power of Attorney is dated 4th August 2000. The dispute between the son-in-law and daughter of said Amrutlal Zinabhai Mehta which has been mentioned in the Will cannot be a ground to hold that the said Power of Attorney dated 4th August 2000 is a false and fraudulent document. In any case, it is an admitted position that after the decree has been executed, said Paresh Shah, son-in-law and Constituted Attorney of Amrutlal Zinabhai Mehta has handed over possession of the suit premises to him and said Amrutlal Zinabhai Mehta has passed away in or about 2010 and presently the premises are in possession of his daughter Preeti Shah and said Preeti Shah has given the said premises on leave and license basis to third person.

19. Ms. Ranjana Parikh, learned Counsel appearing for the Respondent No.1 points out that not only the criminal proceedings are filed against Amrutlal Zinabhai Mehta as well as said Paresh Shah but also complaints have been filed with the Bar Council against the Advocates who have represented the Respondent No.1.

20. In the facts and circumstances of this case, it is clear that the present proceedings are clearly abuse of the process of law. The decree which has been upheld by the Supreme Court in the year 2004 and the execution of decree is obstructed on these very grounds and the same grounds are repeated by filing several proceedings and therefore contention raised is that the decree passed is nullity and therefore the possession be restored.

21. Thus, the observations of the Supreme Court in M. Nagabhushana (supra) that the attempt to re-argue the case which has been finally decided by the court of last resort is a clear abuse of process of the Court are squarely applicable to the present case. The observations of the Supreme Court in Paragraph Nos.13, 23 and 24 are very important and applicable to the present case, which read as under:- “13. That principle of finality of litigation is based on high principle of public policy. In the absence of such a principle great oppression might result under the colour and pretence of law inasmuch as there will be no end of litigation and a rich and malicious litigant will succeed in infinitely vexing his opponent by repetitive suits and actions. This may compel the weaker party to relinquish his right. The doctrine of res judicata has been evolved to prevent such an anarchy. That is why it is perceived that the plea of res judicata is not a technical doctrine but a fundamental principle which sustains the rule of law in ensuring finality in litigation. This principle seeks to promote honesty and a fair administration of justice and to prevent abuse in the matter of accessing court for agitating on issues which have become final between the parties.” “23. Thus, the attempt to re-argue the case which has been finally decided by the court of last resort is a clear abuse of process of the court, regardless of the principles of res judicata, as has been held by this Court in K.K. Modi v. K.N. Modi [(1998) 3 SCC 573]. In SCC para 44 of the Report, this principle has been very lucidly discussed by this Court and the relevant portions whereof are extracted below: (SCC p. 592) “44. One of the examples cited as an abuse of the process of the court is relitigation. It is an abuse of the process of the court and contrary to justice and public policy for a party to relitigate the same issue which has already been tried and decided earlier against him. The reagitation may or may not be barred as res judicata.”

24. In coming to the aforementioned finding, this Court relied on The Supreme Court Practice, 1995 published by Sweet & Maxwell (p. 344). The relevant principles laid down in the aforesaid practice and which have been accepted by this Court are as follows: (K.K. Modi case [(1998) 3 SCC 573], SCC p. 592, para 43) “43. … ‘This term connotes that the process of the court must be used bona fide and properly and must not be abused. The court will prevent improper use of its machinery and will in a proper case, summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation. … The categories of conduct rendering a claim frivolous, vexatious or an abuse of process are not closed but depend on all the relevant circumstances. And for this purpose considerations of public policy and the interests of justice may be very material.’ ” ”

22. Thus, the following principles emerge from various decisions referred herein above:i. The doctrine of res judicata is fundamental to every well regulated system of jurisprudence. The same is founded on the consideration of public policy that a judicial decision must be accepted as correct and that no person should be vexed twice with the same kind of litigation. ii. The plea of res judicata is not a technical doctrine but a fundamental principle which sustains the rule of law in ensuring finality in litigation. This principle seeks to promote honesty and a fair administration of justice and to prevent abuse in the matter of accessing court for agitating on issues which have become final between the parties. iii. The doctrine of res judicata is attracted not only in separate subsequent proceedings but also at subsequent stage of the same proceedings. iv. Parties are not permitted to bring fresh litigations because of new views they may entertain of the law of the case or new versions which they present as to what should be a proper appreciation by the Court either of the construction of the documents or the weight of certain circumstances. If this is permitted, litigation would have no end. v. The principle namely, that of setting to rest rights of litigants, applies to the case where a point is raised and rejected or not specifically rejected and therefore deemed to be rejected. vi. Principle of finality of litigation is based on high principle of public policy. In the absence of such a principle great oppression might result under the colour and pretence of law inasmuch as there will be no end of litigation and a rich and malicious litigant will succeed in infinitely vexing his opponent by repetitive suits and actions. vii. The attempt to re-argue the case which has been finally decided is a clear abuse of the process of the court, regardless of the principles of res judicata. viii. It is an abuse of the process of the court and contrary to justice and public policy for a party to relitigate the same issue which has already been tried and decided earlier against him. The reagitation may or may not be barred as res judicata. ix. The process of the court must be used bona fide and properly and must not be abused. The court will prevent improper use of its machinery and will in a proper case, summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation.

23. If the facts of this case are analysed on the touchstone of the above parameters, then it is clear that by filing several applications in execution an attempt is made to relitigate the same issue which has already been tried and decided earlier or deemed to have been decided upto the Supreme Court. The process of the court must be used bona fide and properly and must not be abused. The court will prevent improper use of its machinery and will in a proper case, summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation.

24. It is required to be noted that the suit premises are commercial premises admeasuring approximately 3400 sq ft which is in a prime commercial locality of Mumbai. Thus, it is very clear that the reagitation of the same issues on number of occasions is for malafide purpose of bringing pressure on the Respondent No.1 to extract money or some other benefit illegally. It is very clear that filing of several applications in execution after the decree passed by the learned Trial Court which has been confirmed upto the Supreme Court and also sending telegrams to the Hon’ble the Chief Justice of India, Hon’ble the Chief Justice of the Bombay High Court and to the learned Chief Judge of the Small Causes Court, Mumbai, clearly shows that an attempt is made indirectly to bring pressure on the learned Executing Court. Accordingly, Civil Revision Application No.487 of 2017, Civil Revision Application No.486 of 2017 and Writ Petition No.1713 of 2018 are dismissed with cost of Rs.5,00,000/-. The said cost be deposited within a period of two months from today in the Small Causes Court, Mumbai. The Respondent No.1 is permitted to withdraw the said cost. [MADHAV J. JAMDAR, J.]