Shah, J. - (1.) By insistence upon procedural wrangling in a comparatively 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.
(2.) A building in the town of Ahmedabad used as a cinematograph theatre belonged originally to M/s. Popatlal Punjabhai. In proceedings in insolvency, receivers were appointed of the estate of the owners and on August 19, 1954, the receivers granted a lease of the theatre on certain terms and conditions to two persons, Raval and Faraqui. By an agreement dated November 27, 1954, between Raval and Faraqui on the one hand and M/s. Filmistan Distributors (India) Private Ltd. - hereinafter called 'Filmistan' - on the other hand, right to exhibit cinmatograpth films was granted to the latter on certain terms and conditions, "Filmistan" instituted suit No. 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. By an order dated December 1, 1960 the suit was disposed of as compromised. 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 not to have any right to exhibit any picture in contravention of the terms and conditions 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. Pursuant to this agreement, a fresh agreement was executed on December 1, 1960. On September 1, 1963, Filmistan filed suit No. 1465 of 1963 in the Court of Small Causes at Ahmedabad, inter alia, for a declaration that a 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. in the theatre, and that one Shabeer Hussain Khan Tejabwala had no right, 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. 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. 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 virtue of Section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. Three sets of written statements were filed against the claim made by Filmistan but no reference need be made thereto, since at this stage in deciding this appeal the merits of the pleas raised by the defendants are not relevant. After issues were raisd on June 20, 1966. the plaint was amended and additional written statements were filed by the defendants. The learned Judge was then requested to frame three additional issues in view of the amended pealdings:the issues were "11. Whether in view of the said consent decree in suit No. 149 of 1960 defendants Nos. 5 and 6 are debarred on principles of res judicata from agitating the question that the said document dated November 27, 1954 as confirmed by their letter dated January 31, 1955 and further confirmed by document dated December 1, 1960 is not a lease 12. Whether in view of the said consent decree defendants 5 and 6 are estopped from contending and leading any evidence and putting question in cross-examination of plaintiff's witnesses to show that the said document dated November 27, 1954 as confirmed by their letter dated January 31, 1955 and further confirmed by document dated December 1, 1960 is not a lease 13. Whether in respect of the terms of the said consent decree as also of the said document dated November 27, 1054, as confirmed by their letter dated January 31, 1955 and further confirmed by document dated December 1, 1960 defendants Nos. 5 and 6 are debarred from leading any evidence of the plaintiff's witnesses in view of Section 92 of the Evidence Act In drawing up the additional issues not much care was apparently exercised:whether a party is entitled to lead evidence or to put questions in cross-examination of the plaintiff's witnesses cannot form the subject-matter of an issue.
(3.) Filmistan then applied to the Court of Small Causes for an order that issues Nos. 11, 12 and 13 be tried as preliminary issues. The learned Judge observed that the issues were not purely of law, that in any even event the case or any part thereof was not likely to be disposed of on these issues, and that ordinarily in "appealable cases" the Court should, as far as possible, decide all the issues together and that piecemeal trial might result in protracting the litigation. He also observed that the issues were not of law going to the root of the case and were on that account not capable of being decided without recording evidence.;