A.Mateen, J. - (1.) Heard Sri Asit Kumar Chaturvedi learned Counsel for the appellants and Sri Shivam Sharma appearing for respondent Nos. 1 to 6 on this contempt appeal which arises out of a judgment and order dated 27.1.2006 by means of which an undertaking was given by appellant No. 2 himself. Instead of complying with the said order this contempt appeal has been preferred.
(2.) A preliminary objection has been raised by Sri Shivam Sharma, Counsel for respondent Nos. 1 to 6, to the effect that once an undertaking has been made in Contempt Petition No. 36 (C) of 2005 the appellants are estopped from challenging this order by means of appeal and in support of this contention he has cited the judgment of the apex Court in the case of Amrendra Komalam and another v. Usha Sinha and another, 2006(24) LCD 323 (SC) , in para 25 whereof their Lordships have observed as under: "The undertaking and the acceptance not to raise the issue of interpolation is a matter of record. It is well settled that once an issue of fact has been judicially determined finally between the parties by a Court of competent jurisdiction and the same issue comes directly in question in subsequent proceedings between the same parties then the persons cannot be allowed to raise the same question which already stands determined earlier by the competent Court. For that the question of interpolation in the renewal clause of the said deed has been finally decided and the same issue has been raised in the present suit when in both the suits the parties are the same and the basic claim of both the parties is the same, as in eviction suit, the plaintiff is claiming eviction by termination of lease and denying the renewal clause whereas in the specific performance suit, the appellants are claiming the renewal of the lease on the basis of the said renewal clause. Hence in both the suits, the main issue is substantially and materially one and the same and both the cases are being tried simultaneously. This apart, the judgment of the High Court and of this Court is a judgment in personam which is binding upon both the parties. It is also seen that the order dated 15.2.1999 in civil revision is a consent order which creates an estoppel by judgment as the judgment dated 15.2.1999 operates as estoppel as records of the findings are essential to ascertain the judgment. By passing of the impugned judgment, the High Court has virtually allowed the suit in favour of Respondent 1. In any view of the matter, the impugned order is bad in law and fact as well and, therefore the same is liable to be set aside.
(3.) He has also cited the case of Salkia Businessmens Association and others v. Howrah Municipal Corporation and others, AIR 2001 SC 2790 , wherein it has been held by the apex Court that once an undertaking is given before the Court concerned, after that the respondents pare estopped from raising the issue in the matter. As such it is submitted that the appellants are estopped from raising the issue in view of the aforesaid judgment of the apex Court.;