GAURI SHANKAR Vs. RAKESH KUMAR AND ORS.

Tags Decree Tenancy

Supreme Court of India (Full Bench (FB)- Three Judge)

Appeal (Civil), 4513-4514 of 2017, Judgment Date: Mar 29, 2017

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

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[1]

[2] AIR 1963 SC 468
[3]

[4] AIR 1989 SC 1470
[5]

[6] AIE 1995 SC 676

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