Shah, J. - (1.) Under an indenture dated August 2, 1950, Dossibai - respondent in this appeal -granted a lease of- 555 sq. yards in village Pahadi, Taluka Borivli to Mathura Prasad - appellant herein - for constructing buildings for residential or business purposes. The appellant constructed buildings on the land. He then submitted an application in the Court of the Civil Judge, Junior Division, Borivli, District Thana, that the standard rent of the land be determined under Sec. 11 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. The Civil Judge rejected the application holding that the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, did not apply to open land let for constructing buildings for residence, education, business trade or storage. This order was confirmed on September 28, 1955, by a single Judge of the Bombay High Court in a group of revision applications:Mrs. Dossibai N. B. Jeejeebhoy v. Hingoo Manohar Missar Nos. 233 to 242 of 1955 (Bom) . But in Vinayak Gopal Limaye v. Laxman Kashinath Athavale, ILR (1956) Bom 827 the High Court of Bombay held that the question whether S. 6 (1) of the Act applies to any particular lease must be determined on its terms and a building lease in respect of an open plot is not excluded from S. 6 (1) of the Act solely because open land may be used for residence or educational purposes only after a structure is built thereon. Relying upon this judgment, the appellant filed a fresh petition in the Court of the Small Causes, Bombay, for an order determining the standard rent of the permises. The application was filed in the Court of Small Causes because the area in which the land was situated had since been included within the limits of the Greater Bombay area. The Trial Judge rejected the application holding that the question whether to an open piece of land let for the purpose of constructing builings for residence, education, business or trade Section 6 (1) of the Act applied was res judicata since it had been finally decided by the High Court between the same parties in respect of the same land in the earlier proceeding for fixation of, standard rent. The order was confirmed by a Bench of the Court of Small Causes and by the High Court of Bombay. With special leave, the appellant has appealed to this Court.
(2.) The view expressed by the High Court of Bombay in Civil revision Application No. 233 of 1955 D/-28-9-1955 (Bom) was overruled by this Court in Mrs. Dossibai N. B. Jeejeebhoy v. Khemchand Gorumal, (1962) 3 SCR 928 . In the latter case the Court affirmed the view expressed by the Bombay High Court in Vinayak Gopal Limaye's case, ILR (1956) Bom 827.
(3.) But all the Courts have held that the earlier decision of the High Court of Bombay between the same parties and relating to the same land is res judicata. Sec. 11 of the Code of Civil Procedure which enacts the general rule of res judicata, insofar as it is relevant, provides: "No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court." The Civil Judge, Junior Division, Borivli, was competent to try the application for determination of standard rent, and he held that Section 6 (1) of the Bombay Rents, Hotel and Lodging Home Rates Control Act, 1947, did not apply to open land let for construction of residential and business premises.;