SUPREME GENERAL FILM EXCHANGE PVT LTD Vs. HER HIGHNESS TEJ KUNWAR SURYAVANSHIJI

JUDGEMENT

(1.) THIS Miscellaneous Appeal is directed against the order of the First Additional District Judge, Jabalpur, dated the 11th September, 1975, in Miscellaneous Judicial Case No. 6 of 1968. The said Miscellaneous Judicial case No. 6 of 1968 was registered under Order 21, Rule 97 of the Code of civil Procedure on the complaint of the Respondent, Her Highness Tej Kunwar saheba, the auction purchaser of a Cinema Hall know as "plaza Talkies" that she had been resisted in obtaining possession by M/s Supreme General Films exchange Private Ltd. , the appellant before this Court. The Additional district Judge framed issues on the pleadings raised, and ordered that he would record evidence if necessary, but only after he was satisfied on hearing arguments that such a course should be adopted. The parties to the proceedings felt dissatisfied. The Supreme General Films Exchange was insisting upon evidence to be taken first before arguments were heard, whereas the respondent-auction purchaser felt that no enquiry at all was necessary since the decision in the earlier suit had concluded the matter finally and the Supreme General Films exchange would not resist delivery of possession on any ground whatsoever.

(2.) BOTH the parties came to this Court in revision the one filed by the appellant was registered as Civil Revision No. 456 of 1974 and other filed by the auction purchaser was registered as Civil Revision No. 789 of 1974. The two revisions were heard together by C. P. Sen J. , who by a common order dated the 30th September, 1974, held that the Supreme General was not protected by the provisions of the Madhya Pradesh Accommodation Control Act, firstly because, a fully equipped cinema hall let out for the purposes of exhibiting films was not an accommodation within the meaning of the Act, and secondly because, the plea was barred by rule of constructive res judicata, the plea not having been raised in the earlier suit-Civil Suit No. 13-A of 1963, in which a declaration was given to the decree-holders (the auction purchaser being one of them) that the sale in execution of the mortgage decree passed in civil Suit No. 15-A of 1934 would pass to the auction purchaser property unaffected by the rights of the Supreme General under the lease deed dated 30-3 1956 (Ex. D-8 in the said suit), and thirdly because, the lease dated 30-3-1956 having been executed by the mortgagors during the pendency of the suit for sale by the mortgagees, was hit by the result of the litigation in view of section 52 of the Transfer of Property Act and that the lessee could not resist the claim for possession of the auction purchaser.

(3.) SEN J. thus overruled all conceivable objections in support of the resistence. No evidence, he said, was necessary for decision of any question. The Supreme General's obstruction was held to be unjustified. The issues were, therefore, struck down and the executing Court was directed to proceed under Order 21, Rule 98 of the Code of Civil Procedure forthwith.