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Thursday, March 30, 2017

we find merit in the argument of the Appellant that the parties be relegated before the High Court for a fresh consideration of the second appeal on its own merit in accordance with law and more so, the substantial questions of law formulated by the Appellant which are as under:- “i. Whether the tenancy of Respondent No. 1 and 2 as created w.e.f. 01.09.1975 in respect of Suit premises No. 47, UB, Jawahar Nagar, Delhi – 11006 jointly in their name can be said to be joint tenancy as contemplated in the judgment AIR 1988 SC 1470 “S.C. Pandey versus G.C. Paul” which were passed in the context of joint tenancy conferred on the body of the legal heir of deceased or not? ii. Whether the Ld. Appellate Court was duty bound to address all issues and give finding therein after re-appraisal of the facts and was not competent to uphold the finding summarily as sought to be done by the judgment dated 03.02.2005 or not? iii. Whether the Ld. Appellate Court was duty bound to deal with other issues except Issue No. 6? iv. Whether the Judgment/Decree of the Ld. Appellate Court dated 03.02.2005 was perverse and in breach of its jurisdiction as the appellate court by not giving independent finding passed on re-appraisal of pleading and evidence on record? v. Whether the Ld. Appellate Court upholding other issues ought to have passed such further direction for passing of the preliminary decree of rendition of account to its logical end as appointment of Local Commissioner and its terms set lapsed by then or not?”

                                                              NON-REPORTABLE


                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                    CIVIL APPEAL NOS. 4513-4514  OF_2017
            (Arising out of SLP (Civil) Nos. 29019-29020 of 2015)

Gauri Shankar                                           …. Appellant



Versus



Rakesh Kumar and Ors.                           .... Respondents




                               J U D G M E N T



A.M.KHANWILKAR, J.



1.    The Appellant filed  a  suit  for  dissolution  of  partnership  of  a
jewellery shop and rendition of accounts against  Rakesh  Kumar  (Respondent
No. 1), Maya Devi (Respondent No. 2) and Bal Mukund  Verma  (predecessor  of
Respondents). The suit was decreed in favour of  the  Appellant  inter  alia
with a declaration that the possession of the suit shop was for the  benefit
of the Appellant and Respondent No. 1 as joint-tenants.



2.    The Respondents filed two separate appeals which were disposed  of  by
the first appellate Court vide a common judgment on 03.02.2005. In the  said
appeal, the declaration regarding the tenancy rights  of  the  Appellant  in
the suit shop was reversed on the finding that the tenancy  was  surrendered
by one partner. The first appellate court relying on the  decisions  in  the
cases of Kanji Manji Vs. Trustee of Port of Bombay[1]; H.C. Pandey Vs.  G.C.
Paul[2]; and H.C. Pandey Vs. G. C Kaul[3], opined that notice  of  surrender
of tenancy given by one of the co-tenants and a decree of possession of  the
tenanted premises passed on that  basis  will  bind  the  other.  The  first
appellate court found that the tenancy  surrendered  by  one  of  the  joint
tenants, even if without the consent of the  other,  would  bind  the  other
joint tenant.

3.    Aggrieved, the Appellant filed a second appeal before the  High  Court
of Delhi at New Delhi being RSA 146/2005. By  the  impugned  judgment  dated
02.12.2013, the second appeal was dismissed by the learned Single  Judge  on
the sole ground that the question as to whether the tenancy rights could  be
surrendered by one of the joint-tenants without the consent  or  concurrence
of the other is a question of fact and not a question of  law  much  less  a
substantial  question  of  law.  The   Appellant   filed   a   review/recall
application against the aforementioned impugned  judgment  before  the  High
Court, which was rejected on 22.08.2014. The Appellant has  challenged  both
these judgments of the High Court in the present appeals.

4.    The grievance of the  Appellant  is  that  the  Appellant  had  raised
substantial questions of law as articulated in the Memo  of  Second  Appeal,
in paragraph 8(K).  The  main  grievance  of  the  Appellant  was  that  the
Respondent No. 1 – joint-tenant had surrendered the  entire  tenancy  rights
in the suit shop without the consent or knowledge of  the  Appellant,  in  a
deceitful and fraudulent manner.  In that, the surrender of the tenancy  was
unilateral, unauthorized and collusive  between  the  landlady  who  is  the
mother of Respondent No. 1 and the new tenant  inducted  in  the  suit  shop
(original defendant No. 3 before the Trial Court) who was  none  other  than
the father of Respondent No. 1.  According to the Appellant, in the  present
case, the act of surrender of joint-tenancy by the Respondent No.  1  was  a
subterfuge and fraud played so as to defeat the rights of the  Appellant  in
the suit shop. Further, the first appellate Court, without dealing with  the
finding of fact recorded by the trial court on  this  aspect,  reversed  the
well considered view taken by the trial court.  The  first  appellate  court
merely relied upon the  decisions  which  could  be  distinguished  and  not
relevant to the specific plea taken by the Appellant.  This  grievance  made
by the Appellant has been completely glossed  over  by  the  learned  single
Judge of the High Court.  The High Court  proceeded  to  reject  the  second
appeal without addressing the real issues, by merely stating that  the  fact
as to whether the  tenancy  rights  could  be  surrendered  by  one  of  the
partners is a question of fact.

5.    We have heard the learned counsel for the  parties.  With  their  able
assistance, we have perused the relevant records and the judgments  impugned
in the present appeals.  We  agree  with  the  Appellant  that  the  learned
single Judge of the High Court  has  failed  to  refer  to  the  substantial
questions of law formulated by the  Appellant  in  the  Memo  of  Appeal  in
Paragraph 8(K). Further, the specific plea taken by the Appellant, that  the
alleged surrender of joint tenancy by Respondent No. 1 was a  deceitful  and
fraudulent act not binding on the  Appellant  nor  could  impact  the  joint
tenancy in respect of the suit shop, has  not  been  examined  by  the  High
Court. The material facts to  establish  that  plea  have  been  brought  on
record by the Appellant and duly noticed by the trial  court.  However,  the
efficacy thereof has not been  considered  either  by  the  first  appellate
Court or the  High  Court.  The  High  Court  was  obliged  to  examine  the
aforementioned pleas taken by the Appellant including that the decisions  of
this Court relied upon by the first appellate  Court  to  answer  the  issue
against the Appellant  were  inapplicable  to  the  fact  situation  of  the
present case and could be distinguished.

6.    As a result, we find merit in the argument of the Appellant  that  the
parties be relegated before the High Court for a fresh consideration of  the
second appeal on its own merit in accordance  with  law  and  more  so,  the
substantial questions of law  formulated  by  the  Appellant  which  are  as
under:-

“i.   Whether the tenancy of Respondent  No.  1  and  2  as  created  w.e.f.
01.09.1975 in respect of Suit premises No. 47, UB, Jawahar  Nagar,  Delhi  –
11006 jointly in their name can be said to be joint tenancy as  contemplated
in the judgment AIR 1988 SC 1470 “S.C. Pandey versus G.C. Paul”  which  were
passed in the context of joint tenancy conferred on the body  of  the  legal
heir of deceased or not?

ii.    Whether the Ld. Appellate Court was duty bound to address all  issues
and give finding therein  after  re-appraisal  of  the  facts  and  was  not
competent to uphold the finding summarily  as  sought  to  be  done  by  the
judgment dated 03.02.2005 or not?

iii.  Whether the Ld. Appellate Court was duty  bound  to  deal  with  other
issues except Issue No. 6?

iv.    Whether  the  Judgment/Decree  of  the  Ld.  Appellate  Court   dated
03.02.2005 was perverse and in breach of its jurisdiction as  the  appellate
court by not giving independent finding passed on re-appraisal  of  pleading
and evidence on record?

v.    Whether the Ld. Appellate Court upholding other issues ought  to  have
passed such further direction for  passing  of  the  preliminary  decree  of
rendition  of  account  to  its  logical  end  as   appointment   of   Local
Commissioner and its terms set lapsed by then or not?”



7.    We may not be understood to have formulated the above noted  questions
while remitting the second appeal. It will be open  to  the  High  Court  to
reformulate the substantial questions of law or permit the parties  to  urge
any further substantial questions of law that may require  consideration  by
the High Court.

8.    Accordingly, we set aside the judgments and orders passed by the  High
Court dated 02.12.2013 and 22.08.2014 and instead restore the second  appeal
to  the  file  of  the  High  Court  to  its  original  number   for   fresh
consideration on its own merit in accordance with  law.  The  parties  shall
appear before the High Court on 17th April, 2017 when  the  High  Court  may
assign a suitable date for hearing of the second  appeal.   We  request  the
High Court to expeditiously dispose of the second appeal.

9.    The appeals are allowed in the above terms.  No order as to costs.

                                       …..……………………………..J.
                                     (Dipak Misra)




                                              .…..…………………………..J.
                                  (A.M.Khanwilkar)


.…..…………………………..J.
                                  (Mohan M. Shantanagoudar)

New Delhi,
Dated: March 29,  2017


-----------------------
[1]

      [2] AIR   1963 SC  468
[3]

      [4] AIR 1989 SC 1470
[5]

      [6] AIE 1995 SC 676


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