1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 8374 OF 2008 WRIT PETITION NO. 8374 OF 2008 WRIT PETITION NO. 8374 OF 2008 Andrew Minoo Rustom Joshi ... Petitioner VS. (Orig. Appellant) Mrs. Prochi Bahadur Gandhi & Ors. Respondents (Orig.Plaintiffs) Mr. R.N.Narula with Mr. Sudarshan Shinghrani for the petitioner. Mr. M.M.Bagadia for respondent Nos.1,2 & 4. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. DATE: 1st April, 2009. DATE: 1st April, 2009. DATE: 1st April, 2009. P.C. P.C. P.C. 1. Heard Counsel for the parties. 2. This Petition takes exception to the concurrent view taken by two Courts below in decreeing the suit for possession filed by the respondent-landlord. The principal argument of the petitioner before this Court 2 is that the order of striking of defence of the petitioner passed by the trial Court is not proper. According to the respondents, however, it is not open to the petitioner to agitate that question in the present Writ Petition. That is so because the order passed by the trial Court striking of the defence of the petitioner in the eviction proceedings was specifically put in issue by the petitioner in the first place by way of appeal which was converted into revision before the appellate Bench of the Small Cause Court. That revision was dismissed as not maintainable. However, when the matter was carried in Writ Petition before this Court against the abovesaid order, the petitioner once again challenged the order passed by the trial Court striking of defence of the petitioner on merits. That can be discerned from the prayer clauses of the Writ Petition, in particular, prayer clauses (a) and (b) which read thus :- "(a) That this Hon’ble Court shall exercise all the powers under the article 227 of Constitution of India and/or its inherent power be pleased to call for record and proceeding pertaining to impugned judgment and order dated 22nd Septembers, 2004 passed by the Hon’ble Appeal Bench of Court of Small Causes at Bombay in 3 Revision Application No.172 of 2004 in Int. Notice No. 666 of 2002 in RAE&R Suit No.376/761 of 1997 in Court of Small Causes at Bombay. (b) That after going through legality and propriety of impugned judgment and order dated 22nd September, 2004 this Hon’ble Court be pleased to set aside and/or quash the same and be pleased to quash the Trial Court’s order/decree dated 22nd September, 2004 passed in Int. Notice no.666 of 2002 in RAE&R Suit NO. 376/761 of 1997 in Court of Small Causes at Bombay." Not only that, during the course of the argument before this Court in the said Writ Petition No.8774 of 2004, the Counsel pointedly assailed the correctness of the order passed by the trial Court in striking of the defence of the petitioner and which fact has been noticed in the order dated 1st November, 2004 as can be discerned from the opening part of paragraph 1 itself. The Court has recorded "The petitioner challenges the orders passed by the Courts below for striking of the defence of the petitioner in the eviction proceedings bearing Suit no.316/761 of 1997". In the later part of the same paragraph, this Court adverted to the relevant 4 facts and then once again reproduced the challenge of the petitioner before this Court as is clear from paragraph 2 of the Judgment. The contention was clearly intended to assail the correctness of the view taken by the trial Court in striking of the defence of the petitioner. The argument of the petitioner was that there was sufficient cause on account of which the petitioner could not comply with the conditional order. That argument has been dealt with in paragraph 4 of the same Judgment and rejected. In other words, I am in agreement with the objection taken on behalf of the respondents that it is not open to the petitioner to challenge the same issue once again in the form of writ petition as the earlier decision of this Court dated 1st November, 2004 in Writ Petition No.8774 of 2004 has been allowed to attain finality. To get over this position, Counsel for the petitioner has placed a reliance on the decision of the Apex Court in the case of Satyadhan Satyadhan Satyadhan Ghosal and others vs. Smt. Deorajin Debi and another Ghosal and others vs. Smt. Deorajin Debi and another Ghosal and others vs. Smt. Deorajin Debi and another reported in AIR 1960 SC 941 reported in AIR 1960 SC 941 reported in AIR 1960 SC 941. Much emphasis was placed on the facts of that case to contend that even in that case similar situation obtained. However, it is not possible to accept this submission. As a matter of fact, the observations in the said decision answer the point in issue against the petitioner. In paragraphs 7 and 8 of the said decision on which strong reliance has 5 been placed by the petitioner read thus :- "(7) The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a res is judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigation. When a matter - whether on a question of fact or a question of law - has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal as taken to a higher court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again. This principle of res judicata is embodied in relation to suits in S.11 of the Code of Civil Procedure; but even where S. 11 does not apply, the principle of res judicata has been applied by courts for the purpose of achieving finality in litigation. The result of this is that the original court as well as any higher court must in any future litigation proceed on the basis that the previous decision was correct. 6 (8) The principle of res judicata applies also as between to stages in the same litigation to this extent that a court, whether the trial court or a higher court having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings. Does this however mean that because at an earlier stage of the litigation a court has decided an interlocutory matter in one way and no appeal has been taken therefrom or no appeal did lie a higher court cannot at a later stage of the same litigation consider the matter again ? Besides the said paragraphs 7 and 8, reliance is also placed on the observations in paragraphs 13 and 16 of the same decision. What is glossed over by the Counsel for the petitioner is that the Apex Court in paragraph 16 has re-stated the settled legal position that an interlocutory order which has not been appealed from either because no appeal lay or even though an appeal lay an appeal was not taken, could be challenged in an appeal from the final decree or order. In the present case, the order of striking of the defence was specifically put in issue in the first place by way of revision and later on before this Court by way of writ 7 petition. It is not a case where the said order has not been challenged at all by the petitioner. Had it been a converse case, it would have been open to the petitioner to contend that the challenge to the said order could be set up in the appeal against the final decision of the trial Court. Only in that situation, the reliance placed on the decision of the Apex Court would be apposite. The Counsel for the petitioner however, invited my attention to the observations in paragraphs 21 and 22 of the same decision. Once again the observations of the Apex Court will be of no avail to the petitioner as the order of striking of the defence passed by the trial Court was specifically challenged in the revision and again before this Court as is observed above. Once the order of striking of defence has become final upto this Court, the question of allowing the petitioner to assail the same plea once again in the present proceedings which arise out of the order passed on the appeal against the final decision would result in allowing the petitioner to re-agitate the same point again before the Court of Co-ordinate Jurisdiction. That cannot be countenanced. It would be a different matter that the petitioner agitates that issue before the Apex Court which may be in a position to entertain the grievances of the petitioner in the light of the observations in para 17 of the said decision. However, 8 so far as this Court is concerned, the decision dated 1st November, 2004 in Writ Petition No.8774 of 2004 will bind the petitioner as well as this Court in considering the challenge to the said order of striking of his defence. 3. Except the abovesaid contention, no other argument has been canvassed before this Court by the Counsel for the petitioner as he candidly contended that if the petitioner were to fail in the above argument, no other question needs to be addressed by this Court. Hence, the Petition is dismissed. 4. At this stage, the Counsel for the petitioner submits that the petitioner intends to carry the matter in appeal for which some time may be granted. There is no difficulty in accepting this request. It is ordered that the decree for possession passed by the lower Court shall not be given effect for a period of four weeks from today on condition that the petitioner and his family members staying along with the petitioner in the suit premises shall file usual undertaking in this Court within one week from today, failing which it will be open to the respondents to proceed with the execution of the decree. In addition, the petitioner shall deposit all the arrears, if any, not paid as of today in this Court within one week from today. 9 (A.M.KHANWILKAR,J.) (A.M.KHANWILKAR,J.) (A.M.KHANWILKAR,J.)