Holding

A third‑party interlocutory application raising fresh title or fraud issues in a disposed Special Leave Petition cannot be entertained under Articles 136, 142 or Section 47 CPC.

Summary

The dispute concerned a 2000‑sq‑yard plot in Bombay whose title was claimed by the heirs of the original owner and by a private limited company that had purchased the shares of the heirs' company. After an eviction decree and a series of undertakings, the petitioners (Devida Yal Rolling Mills) claimed tenancy, while the applicant company alleged that the heirs fraudulently created a fresh lease in 1978 and sought to set aside earlier Supreme Court orders. The applicant filed an interlocutory application in 1990, more than twelve years after the Special Leave Petition (SLP) had been dismissed, invoking Articles 136, 142 of the Constitution and Section 47 of the CPC. The Court examined whether such an application could be entertained to decide fresh questions of title and fraud. It held that the Supreme Court cannot entertain a third‑party interlocutory application raising new issues in a disposed SLP, and that the order of 2 April 1990 was not final or binding. Consequently, the High Court’s findings on title were declared non‑est and the interlocutory application was dismissed.

Issues considered

The interlocutory application filed by a third party after a lapse of twelve years in a dismissed Special Leave Petition is maintainable under Article 136, Article 142 of the Constitution or Section 47 of the CPC.
Whether the Supreme Court can entertain fresh questions of title and alleged fraud in an immovable property through such an application.
Whether the order dated 2 April 1990 is final, operative and binding as res judicata.

Legislation cited

Code of Civil Procedures. Section 47
Constitution of Indias. Article 136, s. Article 142

Subjects

Interlocutory applicationSpecial Leave PetitionArticle 136Article 142Section 47 CPCTitle disputeImmovable propertyFraudRes judicataAppellate jurisdiction

Judgment

·'r·

---'. DEVIDA YAL ROLLING MILLS A
v.
PRAKASH CHIMANLAL PARIKH AND ORS.

MARCH 24, 1993

-+ (N.M. KASLIWAL AND N. VENKATACHALA, JJ.J B

Constitutio.n of India, 1950:

Articles 136, 142-Special Leave Petitiol>-lnvolving tenancy of proper-
ty-Petition dismissed-Interlocutory application by third party after 12 yean
alleging title to said property and fraud in transaction relating rhereto--Held
c
application cannot be entertained in exercise of powers either under Article
-r-- 136 or Article 142 or under Section 47 C.P.C. in disposed of Special Leave
Petition.

Father of respondents no.I and 2 was the owner of the plot in dispute D.
and respondent no.3 was the tenant therein. Respondents no.1 and 2, after
the death of their father, obtained a decree for eviction against respondent
no.3. In the execution proceedings the petitioners (in S.L.P. No.492Sn7)
intervened contending that they bad purchased the business along With
interest in the property in dispute from respondent no.3. They filed a
'1" declaratory suit for being declared tenant in the said property. Their E
application for interim injunction to restrain respondents 1 and 2 from
executing the decree was rejected and the revision thereupon was also
dismissed by the High Court. Their special leave petition was dismissed
on 13.12.1977. However, respondents no. I and 2 agreed not to execute the
decree before l.1.1980 on the undertakings to be given by the petitioners F
and respondent no. 3. Later, an application was filed for declaring the
~- order dated 13.12.1977 as complied with inasmuch as the petitioners and
respondent no.3 had handed over the possession of the property to
Respondents no.1 and 2. It was also stated that a fresh tenancy bad been
granted in favour of the petitioners with effect from 25.6.1978. As no
objection was filed, the prayer was allowed by this Court's order dated
G
11.12.1978.
y
Another company (the applicant company) filed the Interlocutory
Application on 23.1.1990 in the dismissed S.L.P. no.492Sn7 stating that the
property in dispute belonged to a private limited company ofwbicb respon· H
611
612 SUPREME COURT REPORTS {1993) 2 S.C.R.

A dents no.l and 2 were the only directors; that by an agreement of sale dated (
~-
31.7.1979 the applicant company purchased 100% shares of the company
of respondents no.l and 2 and took OV!'I" the entire estates of the said
company. It was contended that the property in dispute being the property
of the company, shares ofwbich were purchased by the applicant company,
respondents 1 & 2 had no right and authority to create fresh tenancy in
B favour of the petitioners on 25.6.1978; that respondents no.l ·and 2 prac·
tised a fraud upon this Court in obtaining the order dated 11.12.1978 b)
+
making a false representation that they were owners of the property in
dispute. It was prayed inter alia that the applicant-company be impleaded
as respondent no.4 in S.L.P. No. 4925n7, the order.dated 11.12.1978 be
c recalled and an order of Inquiry about the fraud practised upon this Court
be made.

This Court by its order dated 2.4.1990 directed the High Court to ·----<
decide the question oftitle to the property In dispute and submit its findings
to this Court. The High Court held that the property in dispute belonged to
D respondents no.l and 2 and the applicant company was not the owner. The
applicant company filed objections to the findings recorded by the High
Court and the petitioners filed a counter to applicant's objections.

The petitioners raised a preliminary objection to the maintainability
E of the application (I.A. No.l of 1990) contending that the interlocutory
application In the dismissed special leave petition could not be filed by the
applicant company under any provision of law after a lapse of more than 12
"'
years; that besides the lease dated 25.6.1978 never being the subject matter
of any proceedings, the applicant company was never a party to the suit or
the proceedings arising out of it and giving rise to the special leave petition.
F
The applicant company contended that the application was main· ,>-.
tainable under Section 47 C.P.C and/or under Articles 136 and 142 of the
Constitution inasmuch this Court has appellate powers from every
decisio11 or .Very Court or Tribunal and Article 142 gives power to this
G Court to do justice In any cause or matter raised even in a special leave
petition already disposed of; that the petitioners having not filed any
re\.lew application against the order dated 2.4.1990 were bound by the y
principles o! acquiescence, waiver and estoppel; that the order dated
2.4.1990 bad become final and it would cause irreparable injury to the
H applicant company If that order was recalled.
ROLLING MILLS v. PRAKASH CHIMANLAL 613

Dismissing the interlocutory application, this Court, A
HELD: 1.1. The question of title to or fraud in any transaction in
respect of an immovable property raised for the first time by a third party
by way of an interlocutory application in a disposed of special leave
petition, can not be gone into by this Court either in exercise of its power
+ under article 136 or Article 142 of the Constitution or under Section 47 of B
tbe Code of Civil Procedure. [pp. 625 C-D; 626 F; 627 El

1.2. The interlocutory application filed by the applicant company on
23.1.1990 in the special leave petition dismissed as long ago as 12 years,
was totally misconceived and there was no provision undt.' .. hich the same C
could have been entertained by this Court. Controversy regarding title to
tbe property or the question of alleged fraud had no relevance even
remotely with the question raised in the special leave petition. According

-- to the applicant company's own case, they had made an agreement of
purchasing 100% shares of the private limited company of respondents
no.1 and 2 on 31.7.1979 and thereafter the applicant company took over
the entire assets. Thus the applicant company cannot be said to have
D

anything to do with the two orders passed by this Court on 13.12.1977 and
11.12.1978 nor could it be regarded as one in any way adversely affected
by the agreement dated 25.6.1978 of new tenancy as till then it had not
taken any steps of purchasing the said shares. [pp. 625 B-C; 626 A-DI E
Union Calbide Corporation and Others v. Union of India and Others,
(1991) 4 S.C.C. 584; inapplicable.

2.1. The ord• .i dated 2.4.1990 neither decided any issue finally nor
did it grant implrfi:iment prayed by the applicant company nor can the F
order be consid•red as binding or operative as res judicata or otherwise.
The order appears to have been passed under a clear misconception that
it will aid the final decision on the application. There was no proceeding
pending at all before this Court in respect of the special leave petition, in
which the application could have been filed after a lapse of 12 years.
[pp. 625 D-F; 627E-F) G
Satyadhyan Ghosal & Ors. v. Sm. Deorajin Debi & Anr., (1960) 3
S.C.R. 590 and Y.B. Patil & Ors. v. Y.L. Pati~ (1977] 1 S.C.R. 320, distin·
guished.

Arjun Singh v.Mohindro l<uT111lT& Ors., (1964) S S.C.R. 947, referred to. H
614 SUPREME COURT REPORTS (1993] 2 S.C.R.

A 2.2. There 'is no question of any acquiescence, waiver or estoppel
against a party where the error is committed by this Court itself. This
Court is under a bounden duty to correct its own mistake. [p. 626 Fl

2.3. Accordingly, the entire proceedings in the High Court including
the findings recorded on the question of title are non est and not binding
B on any of the parties concerned. [p. 627 GI ~

3. So far as the questbn of rendering justice in a civil litigation is
concerned, it can only be known after the final culminatioa of such
litigatiou and the party succeeding can be adequately compensated by way
C or costs. ·1627 C-DJ

CIVIL APPELLATE JURISDICTION : Interlocutory Application
No.1 of 1990.

IN

D Special Leave Petition No.4925 of 1977.

From the Judgment and Order dated 13.10.1977 of the Bombay High
Court in Special Civil Application No.742 of 1977.

Ram Jethmalani, S.K. Dholakia, P. Chidambaram, Ms. Bina, P.H.
E Parekh, A.L. Pandya, Ms Seita Vaidyalingam, Ms. Rina Agarwal, Ananl
Palli, Atul Sharma and E.C. Agarwal for the appearing parties.

The Judgment of the Court was delivered by

KASLIWAL, J. A Plot of land measuring 2000 sq. yards situated al
F Syani Road Bombay is the subject matter of this litigation. One part of the
case is that the above property belonged to Cbimanlal D. Parikh. He )..._
executed a will on 20.10.1952 in favour of his minor sons Prakash Chimanlal
Parikh and Pankaj Chimanlal Parikli (hereinafter referred to as respondent
Nos.l and 2). Chimanlal D. Parikh died on 5.12.1952. Devidayal Rolling
G and Refineries Pvt. Ltd. (hereinafter referred to as respondent No.3) was
in occupation of the said property as a tenant. Smt. Mayadevi widow of
Chimanlal D. Parikh and executors named in the will dated 20th October,
1952 acting on behalf of respondent Nos.l and 2 filed a suit No.344 of 1958
for eviction against respondent No.3 in the Bombay High Court. On
H 31.10.1961 a consent decree for eviction was passed in the above suit with
ROLLING MILLS v. PRAKASH CHIMANLAL [KASLIWAL, J.] 615

~ the condition that·the decree shall not be executed for a period of 12 years A
i.e. upto 31.10.1973. The respondent Nos.l and 2 in order to execute the
said decree submitted an application under Order 21 rule 16 and Order
21 rule 22 C.P.C. in the Bombay High Court. The said applications were
allowed and respondent Nos.l and 2 were substituted as decree holders by
an order of the High Court dated 10.U.1973. M/s Devidayal Rolling Mills B
--+ (hereinafter referred to as "the petitioners") appeared in the execution
proceeding.<; and contended that they had purchased the business along
with interest in the disputed property from Devidayal Rolling and
Refineries Private Limited, the respondent No.3. The petitioners also filed
a declaratory suit in January, 1974 in the Small Causes Court at Bombay
for being declared as tenants in the above property. The petitioners also c
filed an interlocutory application for restraining the respondent Nos.1 and
r 2 from executing the decree for eviction. The respondent Nos.1 and 2
denied any tenancy having been created in favour of the petitioners. The
Small Causes Court rejected the grant of any injunction in fa~our of the
petitioners and a revision filed against the said order was also dismissed D
by the High Court. The petitioners then filed a Special Leave Petition
No.4925 of 1977 in this Court, after the disposal of which, the present
interim application No.1 has been filed.

A Bench of three Judges of this Court on 13.12.1977 dismissed the
'.,..
E
Special Leave Petition but respondent Nos.1 and 2 agreed not to execute
the decree before 1st January, 1980 on an usual undertaking to be given by
the petitioners as well as respondent No.3. The order dated 13.12.1977
having an important bearing in the case is reproduced as under:-

UPON hearing counsel, the Court passed the following, F

ORDER
·'""" '
"Special Leave Petition is dismissed. However, Respon-
dents 1 and 2 agree not to execute the decree before the
1st of January, 1980, on the undertaking given by Mr. G
Nariman on behalf of the petitioners and respondent No.3
that the petitioners and respondent No.3 shall hand over
vacant and peaceful possession of the premises to respon-
dents 1 and 2 on or before the said date. The petitioners
and respondent 3 further undertake that they will not raise H
616 SUPREME COURT REPORTS (1993) 2 S.C.R.

A any contention hereafter that they were or are in posses-
sion of the premises either as licensee or tenants of
respondents 1 and 2 under the unamended or the
amended Rent Act. Arrears of compensation according
to the consent decree shall be paid within four weeks from
today and further compensation shall be paid before the
B 10th of every month at the rate of Rs.4000 per month. All
other terms of the consent decree will remain. The
petitioner and respondent No.3 shall file through their
Managing Director an affidavit in terms of this order,
. within two weeks'.
. (,
In pursuance to the above order, undertakings were filed on
15.1-2.1977. Subsequently an application C.M.P. No.18403 of 1978 was
submitted on 8.8.1978 to the effect that after the filing of the undertakings
the petitioners and respondent No.3 had handed over peaceful and. vacant _
D possession of the premises of respondent Nos.1 and 2 on 25th June, 1978.
It was further submitted that on 25th June, 1978 itself a fresh tenancy had
been granted by respondent Nos.1 and 2 in favour of the petitioners. A
copy of the agreement granting fresh tenancy was also filed along with the
application. The above application was filed in view of the fresh agreement
of tenancy warranting the obtaining of discharge of the undertaking filed
E before this Court. The following prayer was made in the said application:

(a) That it may be declared and recorded that the
petitioners and respondent No.3 have duly complied with
the order of this Hon'ble Court dated 13th December,
F 1977 Exh. 'A' hereto and the undertakings recorded in the
said order as well as the undertakings given by Kewal
Kishan Agarwal and Bankey Kishan Agarwal in their
affidavits dated 15th December, 1977;

(b) That the petitioners, respondent No.3, the said
G Kewal Kishan Agarwal and the said Bankey Kishan Agar-
wal be relieved on their respective undertaking given by
them to this Hon'ble Court and recorded in the said order
dated 13th December, 1977 Ex. 'A' hereto and the said
affidavits of Kewal Kishan Agarwal and Bankey Kishan
H Agarwal dated 15th December, 1977 and
ROLLINffMILLS v. PRAKASH CHIMANIAL [KASLIWAL, J.] 617

(c) for such further and other reliefs as the nature and A
circumstances of the case may require for which act of
kindness as the petitioners have in duty bound shall ever
pray.

The above application came up for con>ideration on 11.12.1978 and was
disposed of by the following order: B

UPON bearing counse~ the Court passed ihe following order:

"The other side has no objection. Order made as prayed
for'.
c
This concludes one part of the case.

Second part of the case is that after a lapse of nearly 12 years of
disposal of the Special Leave Petition the above IA. No.1 of 1990 has been
filed on 23.1.1990 by one Jugal Kishore Gupta and for convenience we shall D
hereinafter mention this application as having been filed by "the applicant
company". It has been submitted on. behalf of the applicant company that
originally Chimanlal D. Parikh was the sole proprietor of a firm M/s J ayant
Metal Manufacturing Company (in short 'JMMC'}. On 21.11.1952 the said
Chimanlal D. Parikh converted it into a partnership firm of himself and his E
wife Mayadevi.

- Chimanlal D. Parikh died on 5.12.1952. On 22.10.1963 a deed of
partnership was made between Mayadevi and her sons, respondents Nos.1
and 2. The business of JMM C was taken over and continued by this
partnership firm. On 7.12.1966 Mayadevi retired from the above partner- F
·~.
ship firm and respondent Nos.1 and 2 alone continued as partners. On
13.12.1971 a private limited company was incorporated of which the
respondent Nos.I and 2 alone were the directors. On 1.9.1973 this private
limited company also became a partner in the partnership firm of JMMC
of which respondent Nos.1 and 2 were the only partners. By an agreement G
of sale dated 31.7.1979 the applicant company purchased 100% shares of
the private limited company of respondent Nos.1 and 2. After the aforesaid
agreement Jugal Kishore Gupta on behalf of the applicant company also
took over the entire-assets of the company of respondent Nos.I and 2 on
23.4.1980. It has been further submitted on behalf of the applicant company H
618 SUPREME COURT REPORTS [1993) 2 S.C.R.

A that the disputed property had become the property of the private limited
company floated by respondent Nos.1 and 2 in 1971 and respondent Nos.l
and 2 had no right to deal with the property in their individual capacity.
They had no right and authority to create a fresh tenancy in favour of the
petitioners on 25.6.1978 and they practised a fraud before this Hon'ble
B Court in obtaining the order dated .11.12.1978 by making a deliberate and
intentional false misrepresentation that t~ey were owners of the property
in dispute and had a right to create fresh tenancy in favour of the
petifioners in their individual capacity. It has been further submitted that
the applicant company came to know of the above facrs only after the
C advocate for the applicant. made inspection of papers on 20th January,
1990. In the above .circumstances the applicant company has filed the I.A.
No.1 and has made the following prayers_:

The Court may be pleased to

D (a) direct that the applicant be impleaded as respon-
dent No.4 in the Special Leave Petition No.4925 of 1977;

(b) order an enquiry about the fraud practised by the
petitioner and the respondents upon this Hon'ble Court
and about any other point or points on which this Hon'ble
E Court deems ·fit to order an enquiry;

(c) clarify that the Undertakings given by the petitioner
and.respondent No.3 was to hand-over the possession to
respondent Nos.land 2 for and on behalf of the applicant
as its Directors;
F
(d) take action against the petitioner and respondent
Nos. 1 and 3 for perjury;

(e) vacate the order dated llih December, 1978 inas-
much as respondent Nos.1 and 2 were not competent to
G
enter into Tenancy Agr~ement dated 25th June, 1978
creating tenancy in favour of the petitioner;

(I) direct the petitioner and respondent No.3 to
forthwith handover vacant and peaceful possession of the
H suit premises to the applicant; and
ROLLING MILLS v. PRAKASH CHIMANLAL[KASLIWAL,J.] 619

(g) pass such other and further order or orders as this A
Hon'ble Court may deem fit and proper in the circumstan-
ces of the case.

.This application came up for consideration before this Court and the
following order was passed on 2.4.1990:
B
"After hearing learned counsel for the parties, we find
that in the present proceedings it is difficult to decide the
question of title to the disputed property which includes
an approximate area of 2000 sq. yds. of Plot No.581 Part
and 582 Part in TPS Scheme IV, Mahim, Bombay, at c
present in the possession of M/s Devidayal Rolling Mills
who are claiming to be protected tenants. under the Rent
Act. Title to this property is being claimed by Mis J ayant
Metal Manufacturing Company Private Ltd., as well as by
M/s Prakash Chimanlal Parikh & Pankaj Chimanlal
D
Parikh from whom M/s Devidayal Rolling Mills are claim-
ing to be tenants. Since this deputed question cannot be
decided in the present proceedings we remit the issue
relating to the title to the aforesaid property to the High
Court, Bombay with a direction that the question of title
will be decided after given opportunity to the parties E
concerned to file affidavits, discovery and leading
evidence, etc. After hearing the parties and examining the
witnesses the High Court will record fmdings and forward
the same to this Court for flirther orders. The fmdings
may be remitted to this Couit.within six months. After the F
report is submitted to this Court the parties are free to
file' objections, if any, within three weeks thereof. There-
after the matter will be listed for further orders".

In compliance of the aforesaid order of this Court the High Court
framed the following two issues: G

(1) whether the property admeasuring approx. 2000 sq.
yds. of plot No.581 (pt) & polt No.582 (pt) -of TPS IV,
Mahim Division, Bombay belongs to Prakash Chirnanlal
Parikh and Pankaj Chirnanlal Parikh? H
-1 ,.
•
(
620 SUPREME COURT REPORTS [1993) 2 S.CR.
>-- ~
A (2) whether M/s Jayant Metal Manufacturing Co. Pvt.
Ltd. are owners of the property mentioned in Issue no.l?

The High Court after discussing the entire evidence, recorded the
finding on issue No.l in the affirmative and that of issue No.2 in the
r
B
negative. As a result of the above findings, the High Court has held that
the property admeasuring approximately 2000 sq. yds. belonged to Prakash
-+-- i
Chimanlal Parikh and Pankaj Chimanlal Parikh (respondent Nos.1 and 2)
and that Mis JMMC Pvt. Ltd. (the applicant company) were not the
owners. The High Court has sent the •eport dated 13-14-16-17.8.1991. The
[
(
applicant company has filed objections on 29.10.1991 to the findings
c recorded by the High Court and the petitioners have filed a counter on J
23.11.1991 to the objections ftled by the applicant company.
~

Mr. J ethmalani, learned senior counsel on behalf of the applicant com-
pany wanted io challenge the findings recorded by the High Court on the
question of title of the disputed property. Mr. Chidarnbaram, learned senior I
D
counsel appearing on behalf of the petitioners raised a preliminary objection
that the present interlocutory application filed by the applicant company is
not maintainable and the order passed by this Court on 2.4.1990 was passed ~

under a misconception. It was submitted that in spite of the findings recorded
by the High Court in their favour, he was raising the preliminary objection that
~
E the interlocutory application filed by the applicant company itself was not
maintainable and as such the order passed by this Court dated 2.4.1990 as well
as the entire proceedings taken in pursuance to the said ord~r and the findings f
recorded by the High Court were without jurisdiction. It was further con-
tended that the Special Leave Petition No.4925-<if 1977 had itself been dis-
-r
F missed by order dated 13.12.1977 and no application could have been filed
under any provision oflaw by the applicant company in the said Special Leave ,>-.
J
~
Petition after a lapse of more than 12 years. In view of the above preliminary ...
...
objection raised on behalfof the petitioners, we called upon Mr. Jethmalani to .F
.._
make submissions on the preliminary objection. After hearing learned coun-
sel for the parties at length on the preliminary objection, we consider it neces- ~
G •
sary to decide the preliminary objection first and we are disposing of the same
by this order.
'y-

It was vehemently contended by Mr. Jethmalani, learned senior
t
counsel that such application was maintainable under Articles 136 and 142
H of the Constitution. It was contended that in this application apart from
-· ROLLING MILLS v. PRAKASH CHIMANLAL [KASLIWAL, J.] 621

the prayer for impleadment in the Special Leave Petition No.4925 of 1977 A
a prayer was made that the fraud alleged against the petitioners should also
be enquired. It was submitted that this Hon'ble Court while passing the
order dated 2.4.1990 had allowed the prayer for impleadment by implica-
lion and the second prayer expressly when this Court had framed the issue
-+ of title and had directed the High Court to send its findings after giving an
opportunity to the parties lo file affidavits, discovery and leading evidence
B
etc. It was also submitted that apart from the above reliefs it was also
prayed that the order dated 11th December, 1978 regarding the satisfaction
of the decree be also set aside. It was submitted that this Hon'ble Court
has appellate powers from every decision of every Court or Tribunal and
Art.142 of the Constitution gives power to this Hon'ble Court to do justice c
in any cause or matter raised even in a Special Leave Petition already
'r- dismissed or disposed of. Reliance is placed on the decision of this Hon'ble
Court ,in Union Caroide CorporatiClh and Others v. Union of India and
Others, µ991) 4 S.C.C. 584. It was contended that the application is covered
by Section 47 of the Code of Civil Procedlire or within the principles of
D
justice underlying Section 47 C.P.C. read with Art.142 of the Constitution.

It was also contended that by order dated 2.4.1990 this Hon'ble Court
had granted two prayers made in the application. Firstly, this Hon'ble
Court had impleaded the applicant company and had recorded its right of
~· being heard in the matter and secomlly, had decided to make an enquiry E
into the fraud complained of by the applicant company by directing the
High Court to make a report on the question of title.·-The order dated
2.4.1990 had been passed after hearing the parties. It would cause an
irreparable injury to the applicant company m case the order dated
2.4.1990 is recalled The applicant company has already been put to enor-
F
_....._, mous costs and expenses in conducting the proceedings before the High
Court and a long and valuable judicial time has also been spent. It was
submitted that the parties have already suffered a protracted hearing and
it would be a travesty of justice if the parties would now be told to start
their legal remedy from the lowest court of competent jurisdiction. It would
bring justice into disrepute and would prove the dictum 'justice delayed is G
justice denied'. The order dated 2.4.1990 is neither per-incuriam nor
-y without jurisdiction and the same being passed by this Hon'ble Court itself
after full application of mind and hearing the parties ought lo be sustained.

It w.S further contended that even after the passing of the order H
622 SUPREME COURT REPORTS [1993) 2 S.C.R.

A dated 2.4:1990 by this Hon'ble Court, the petitioners had raised the plea
of rorrectness of the said order dated 2.4.1990 before the High Court. The
High Court rejected the said rontention by a specific order dated 21.8.1990.
The High Court further granted an opportunity to the petitioners to seek
a review of the order dated 2.4.1990 from this Hon'ble Court, but the
petitioners did not avail of the said opportunity and continued with the
B proceedings before the High Court. Under these circumstances the order
dated 2.4.1990 having become final cannot be impeached now in these very
proceedings. It was submitted that the principle of res-judicata applies also
as between two stages in the same litigation and any question having been
decided at an earlier stage in one way or the other cannot be allowed to
C be re-agitated by the parties at a subsequent stage of the same proceedings.
Once a matter is decided it is certainly final as regards that Court is
roncerned. Reliance in support of the above contention is placed on
Satyadhyim Ghosa/ & Ors. v. Sm. Deorajin Debi & Anr., [1960) 3 S.C.R. 590
and Y.B. Patil & Ors. v. Y.L. Pati~ [1977) 1 S.C.R. 320.

D It was lurther eontended that the application in question is also
maintainable under Section 47 of the Code of Civil Procedure. It is sub-
mitted that a dispute between a decree holder and a person claiming
adverse to the decree holder which affects the judgment debtor falls within
the purview of Section 47 of the Code of Civil Procedure. It is rontended
E that the ronsent decree dated 31.10.1961 was modified and merged in the
order of this Hon'ble Court dated 13.12.1977. By the said order dated
13.l:i..1977 the time for execution of the consent decree was extended/upto
1.1.1980. By another order dated 11.12.1978 this Hon'ble Court recorded
satisfaction of the executable order dated 13.12.1977 by discharging the
F undertakings given by the petitioners and respondent No.3. It has thus been
rontended that the applicant company being the true and absolute owner
of the disputed property was entitled to the benefit of the modified decree
dated 13.12.1977. In view of the satisfaction rerorded by this Hon'ble Court
by order dated 11.12.1978, the applicant rompany was justified in submit-
G ting the present application under Section 47 of the Code of Civil Proce-
dure for setting aside the order of satisfaction of the decree for eviction
rerorded by this Court. The respondent Nos.1 and 2 destroyed such right
of the applicant company by entering into a transaction acting as
proprietors and rommitted a.fraud by seeking an order dated 11.12.1978.
H Hence, this Hon'ble Court alone can go into the question of such fraud.
ROLLING MILLS v. PRAKASH CHIMANLAL [KASLIWAL, J.] 623

It was also contended that the petitioners are also bound by the A
principle of acquiescence, waiver and estoppel in view of the fact that they
did not file any review application against the order dated 2.4.1990, instead
participated in the proceedings before the High Court for a long period of
78 days. It was also submitted that no prejudice has been occasioned to
the petitioners on account of the order dated 2.4,1990 as the finding on the
B
question of title has been recorded by the High Court in favour of the
petitioners and it is the applicant company who wants to assail the same
and get the question of title to be decided fmally by the Apex Court to .
shorten the litigation.

On the other hand it was submitted by Mr. Chidambaram, learned C
senior counsel for the parties that the order dated 2.4.1990 being merely
an interim order, the same can always be varied or modified by this Court.
at any later stage of the proceedings. The prayer in the application for
impleadment filed by the applicant company has itself not been granted so
far and by the order dated 2.4.1990 no question has been decided nor has D
any right been conferred thereby on the applicant company. This Hon'ble
Court had passed the order dated 2.4.1990 under a clear misconception <>f
both facts as well as law and as such the same can always be recalled at a
subsequent stage in the proceedings. The application is not maintainable

·r-· under any provision of law including Section 47 C.P.C. The applicant
company was neither a party to the suit in which the decree for eviction E
was passed nor has it come forward as a representative of any party to the
suit much less the representative of the decree holder. It has been con-
tended that the respondent Nos.1 and 2 had filed an application under
Order 21 rule 16 and Order 21 rule 22 C.P.C. for being substituted as
decree holders and the executing court had allowed the applications in F
their favour and as such they alone were competent to execute the decree.

It was also argued on behalf of the petitioners that judgments which
have the force of a decree are to be distinguished from other interlocutory
orders which are a step towards the decision of the dispute between the G
parties by way of a decree or a final order. Thus it has been contended
that the nature of the order dated 2.4.1990 was merely a step towards the
decision of the application filed by the applicant company which itself is
of an interlocutory nature. It was also argued that the lease granted by
respondent Nos.1 and 2 in favour of the petitioners w.e.f. 25.6.1978 was not
the subject matter of the prayers in C.M.P. No.18403 of 1978 nor the H
624 SUPREME COURT REPORTS [1993) 2 S.C.R.
>--
A subject matter of the order made by this Hon'ble Court on 11.12.1978. The
fresh lease granted in favour of the petitioners has never been the subject
111atter of any proceedings in any court of law, including this Hon'ble Court.
Thus it is not open to the applicant company by moving the above inter-
locutory application No.l of 1990 to question in any matter the fresh lease
granted w.e.f. 25.6.1978 or to allege that the said lease is fraudulent or is ~
B vitiated in any other manner. Even if for arguments sake the applicant
company now wishes to challenge the aforesaid lease granted as far back
as on 25.6.1978, the applicant company is bound to institute separate and
substantive proceedings challenging the said lease.

c It has also been argued on behalf of the petitioners that in R.A.D.718
of 1974 the applicant company being a defendant had filed a written
statement in November, 1986 in which ii had referred and questioned the ··--r
grant of fresh lease dated 25.6.1978 by respondent Nos.l and 2. Thus the
stand now taken by the applicant company that it came to know about the
aforesaid lease only after its advocate took inspection of papers on 20th
D
January, 1990 is totally false and the applicant company having not come
with clean hands and also after a long delay the application is liable to be
dismissed on these grounds alone.

E We have given our thoughtful consideration to the arguments ad- -<
vanced on behalf of the parties and have carefully gone through the record
as well as the written arguments. As already mentioned above the respon-
dent Nos.1 and 2 were substituted as decree holders by an order of the
High Court dated 10.12.1973. The petitioners having purchased the busi-
ness from Devidayal Rolling Mills, (the respondent No.3) had filed a
F declaratory suit in January, 1974 in the Small Causes Court at Bombay. In
the said suit the interlocutory application restraining the respondent Nos.1 ~.

and 2 from executing the decree for eviction was dismissed. The revision
filed by the petitioners was also dismissed by the High Court and against
that order the petitioners had come before this Court by filing the above
G Special Leave Petition No.4925 of 1977. The said Special Leave Petition
was also dismissed on 13.12.1977 and the time was granted to vacate the
property in dispute ~efore the 1st January, 1980. In pursuance to the order Y'
dated 13.12.1977 some undertakings were given by the petitioners as well
as respondent No.3 on 15.12.1977 and thereafter the petitioners and
H respondent No.3 handed over the possession of the property in dispute to
ROLLING MILLS v. PRAKASH CHIMANIAL [KASLIWAL,J.] 625

respondent Nos.l and 2 on 25.6.1978 and on the same day a fresh agree- A
ment of lease was granted by respondent Nos.l and 2 in favour of the
petitioners. We are thus totally at a loss to understand as to how any
question of its title as sought to be raised by the applicant company against
respondent Nos.1 and 2 or any question of fraud, if any, in granting a fresh
lease dated 25.6.1978 by respondent Nos.1 and 2 could at all be brought B
+ up before this Court straight away. These questions now sought to be raised
by the applicant company in the present application have nothing to do
with the controversy raised in the main Special Leave Petition itself which
also came to be dismissed long back on 13.12.1977. In our view such
controversy regarding the alleged applicant company's title to the property C
or the question of alleged fraud in respect of creating a fresh tenancy dated
25.6.1978 in respect of that property had no relevance even remotely with
the question raised in the Special Leave Petition. Such questions of title or
fraud could neither be gone into in a Special Leave Petition in exercise of
its jurisdiction under Art. 136 or 142 of the Constitution nor could the same
be raised under Section 47 of the Code of Civil Procedure in the disposed D
of Special Leave Petition nor by way of any interlocutory application. The
· order dated 2.4.1990 appears to have been passed under a clear miscon-
ception that it will aid the final decision on the application. This Court
while passing the order dated 2.4.1990 did not decide any controversy nor
did it grant the application for impleadment filed by the applicant com- E
pany. There was no proceeding pending at all before this Court in respect
of the above Special Leave Petition in which the present application could

- have been filed after a lapse of 12 years and it was an apparent and obvious
mistake on the part of this Court in entertaining such application. We
cannot accept the submission made on behalf of the applicant company F
that the order dated 2.4.1990 is final and binding so as to compel us to
decide the question of title.

The Special ,Leave Petition itself was filed by the petitioners who
were claiming as tenants in the property in dispute against the order of the
High Court affirming the order of the Small Causes Court refusing to grant G
interim injuction against the execution of the decree for eviction. Thus the
controversy, if any, raised, in the main special Leave Petition itself had
nothing to do with the question of any dispute of title between the respon-
dent Nos.I and 2, and the applicant company.
H
626 SUPREME COURT REPORTS (1993) 2 S.C.R.

A It may be noted that according to the applicant company's own case
they had made an agreement of purchasing the 100% shares of the private
limited company of respondent Nos.l and 2 on 31.7.1979 and thereafter
Jugal Kishore Gupta on behalf of the applicant company took over the
entire assets on 23.4.19.80. Thus the applicant company cannot be said to
B have anything to do with the two orders passed by this Court on 13.12.1977
and on 11.12.1978 nor could the applicant company be .regarded as one in
any way adversely affected by the agreement dated 25.6.1978 of new
tenancy as till then it had not taken any steps of purchasing the said shares.
There was no scope or even any semblance of any controversy now sought
C to be raised by the applicant company which could have been raised or
decided in the main Special Leave Petition itself. That apart a Bench of
three Judges of this Court on 13.12.1977 had dismissed the Special Leave
Petition and so far as the order dated 11.12.1978 is concerned it neither --....'.
decided any controversy nor changed its earlier order of dismissal of the
Special Leave Petition. We are clearly of the view that this interlocutory
D application filed by the applicant company on 23.1.1990 in the dismissed
Special Leave Petition as back as on 13.12.1977, was totally misconceived
and there was no provision under which the same could have been enter-
tained by this Court.

E It is no doubt true that o.n account of the order dated 2.4.1990 both
the parties have been put to an enormous cost but this cannot be a
justification for entertaining a controversy which did not arise even remote-
ly in the main Special Leave Petition and which could only be decided by
way of regular substantive proceedings in the lowest court of competent
F jurisdiction. This Court cannot entertain and decide the question of title
in respect of an immovable property raised for the first time before this
Court by way of an interim application in a dismissed Special LeaYe ,l-_
Petition. There is no question of any acquiescence, Waiver or estoppel
against a party where the error is committed by the Court"itself. This Cou11
is under a bounden duty to correct its own mistake. So far as the case of
G U11ion Caroide Corporation v. Union of India, (supra) is concerned the same
bas no relevance and can be of no assistance at all to the applicant
company in the facts and circumstances of the present case. y·

The principle laid down in Satyadhyan's case (supra) and Y.B. Pali/
H ·& Ors. (supra) is to the effect that the principle of res-judicala can be
ROLLING MILLS v. PRAKASH CHIMANLAL [KASLIWAL, J.] 627
__.....
invoked not only in separate subsequent proceedings but they can also get A
attracted in subsequent stage of the same proceedings. There cannot be
any difference of opinion in the said view. However, this question would
depend on the facts and circumstances of each case and the nature of the
order passed at an earlier stage of the proceedings. In Aljun Singh v.
-+ Mahindra Kumar & Ors., (1964] 5 S.C.R. 947 it was observe,d as under:
B
"Where the principles of res-judicata is invoked in the case
of the different stages of proceedings in the same suit the
nature of the proceedings, the scope of the enquiry which
the adjectival law provides for the decision being reached
as well as the specific provision made on matters touching c
such decisions are some of the factors to be considered
---y before the principle is held to be applicable".

So far as the question of rendering justice in a civil litigation is
concerned, it can only be known after the final culmination of such litiga- D
tion and the party succeeding can be adequately compensated by way of
costs. It has been rightly said that "cost is a panacea in law which heals
every sore in litigations. In the present system of adversorial civil litigation
between the parties it may turn out to be costly as well as time consuming,
-,.. if either of the parties decide to bring all or any controversy for decision
upto the Apex Court. In our considered view the question of title to an
E
immovable property or fraud in any transaction relating to it cannot be
entertained by this Court in an interlocutory application filed by a third
party in a Special Leave Petition dismissed as long ago as 12 years discard-
i~g all procedural requirements. We are thus clearly of the view that the
order dated 2.4.1990 did not decide any issue finally nor can it be con- F
--"., sidered as binding or operative as res-judicata ~" otherwise.

It is true that the High Court has recorded a finding in favour of the
petitioners and against the applicant company and as such the applicant
company is prejudiced if the said finding remains in tact. However, in view G
of the fact that we are upholding the preliminary objection, it is necessary
-._,,,-· in the interest of justice to declare the entire proceedings in the High Court
including the findings recorded on the question of title as non-est and not
binding on any of the parties concerned. We order accordingly. Although
we have refrained fro~ making any observations on the merits of the issues H
.,.
628 SUPREME COURT REPORTS [1993] 2 S.C.R.

A raised in the I.A. regarding the questions of alleged title and alleged fraud
we make it clear that this Judgment or any observations made therein will
not in any manner prejudice the rights of any of the parties with regard to
the title of the property in dispute or any question of fraud sought to be
raised by the applicant company in an appropriate forum.
B Subject to the above, we dismiss Interlocutory Application No.1 of
1990 with no order as to costs.

R.P. Application dismissed.