Delhi High Court
Shri Iresh Duggal vs Shri Virender Kumar Seth & Ors. on 24 November, 2014
Author: Valmiki J. Mehta
Bench: Valmiki J.Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 551/2010
% 24th November, 2014
SHRI IRESH DUGGAL ......Petitioner
Through: Mr. Mayank Yadav, Advocate.
VERSUS
SHRI VIRENDER KUMAR SETH & ORS. ...... Respondents
Through: Mr. Pawan Yadav, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not? Yes
VALMIKI J. MEHTA, J (ORAL)
1. This petition under Article 227 of the Constitution of India impugns the order of the trial court dated 16.5.2009 by which the trial court has rejected the prayer made by the decree holder/plaintiff for division of the tenanted premises in the ratio of 1/3rd for each of the parties to the suit in terms of the preliminary decree dated 25.9.2004 passed in a suit for dissolution of partnership and rendition of accounts. The tenanted premises are property no.18/39, Gali no.5, New Rohtak Road, Sarai Rohilla, Delhi.
2. The decree holder/plaintiff had filed the subject suit for dissolution of partnership and rendition of accounts, and in which suit CM(M) No.551/2010 Page 1 of 8 no.117/1993, a preliminary decree was passed on 25.9.2004 giving 1/3 rd rights in the partnership to the decree holder/plaintiff and also to each of the defendant nos.1 and 2.
3. One of the issues in the suit was issue no.2 as to whether the subject property is of and belongs to the partnership firm or the same is only in the tenancy of the respondent nos.1 and 2/defendant nos.1 and 2. This issue no.2 in the suit reads as under:-
"2. Whether the suit premises were under the tenancy of defendants No.1 & 2 and they are only entitled to use the same? OPD"
4. This issue was decided in favour of the decree holder/plaintiff and it was held that respondents/defendant nos.1 and 2 failed to discharge the onus that tenanted premises were the tenanted premises of the defendant nos.1 and 2 and not of the partnership firm. Though there are certain observations with respect to even if the division results in subletting qua the landlord the same would not make any difference to the entitlement of decree holder/plaintiff, however, the ultimate conclusion with respect to the issue was against the respondents/defendants by holding that the tenancy was of the partnership firm and not only of the respondent nos.1 and 2/defendant nos.1 and 2. The judgment and preliminary decree dated CM(M) No.551/2010 Page 2 of 8 25.9.2004 passed by the trial court was carried in an appeal but the first appellate court dismissed the appeal and confirmed the decree including the aspect that the tenanted premises are the tenanted premises of the partnership firm and that the tenanted premises were not exclusively of the respondent nos.1 and 2/defendant nos.1 and 2. Para 7 of the judgment of the appellate court dated 19.7.2006 is relevant and the same reads as under:-
"7. The respondent on the other hand has contended that clause 9 of the Partnership Deed, fairly establishes the right in favour of the respondent. It is further submitted that it could not be proved on record that the appellants are the only tenants inasmuch as only one rent receipt has been produced on record, and that too has not been proved as the author of the receipt was not examined as such, that remains unproved and does not confer any right nor conveys any meaning. The contentions of appellants have been sought to be met by the respondent by asserting that even if the partnership was in existence in 1970, the appellant no.2 cannot become a tenant as he could not have become the partner when he was barely 14 years old in 1970, and in any case he has not been shown as a partner in the earlier composition of the Partnership Firm based upon the 1970 Partnership Deed. It has not been established on record that the premises in question was rented out to the appellants alone and was not to the erstwhile partnership firm through the partners by the same name i.e. Best Steel Traders. The only rent receipt placed on record, albeit indicates that the appellants were the tenants but then it cannot be ruled out that the receipt was not manipulated. This fact becomes very important when it asserted that the other rent receipts are also there in possession of the appellants. What prevented them from producing the remaining rent receipts, remains a riddle and this CM(M) No.551/2010 Page 3 of 8 gives rise to an inference against the appellants. The Partnership Deed of 1976 in which respondent is also shown as the partner through Clause 9 clearly indicates that in the event of dissolution of Partnership Firm each and every partner will have right over the tenanted premises. Counsel for the appellant could not show any reason as to why this sort of clause was incorporated into the Partnership Deed if the premises in question was not in tenancy of the Partnership Firm. The contention on behalf of the appellants that Clause no.9 has no meaning as that would amount to subletting which may result into the termination of the tenancy, therefore, the Clause no.9 of the Partnership Deed should be ignored being superfluous and against the law. However, the partners have entered into the Partnership Deed with their own free will and the Clauses were also thrashed out amongst them before agreeing to have it in the Partnership Deed. Notwithstanding, the fact that such a clause/arrangement may or may not lead to termination of tenancy, the clauses governing the partners through the Partnership Deed are binding on the partners inter se. And, if the consequence, even of adverse nature entails, that cannot be used as a shield to escape from the Clause in question. As such, the Judgment relied upon by the Counsel for the appellant rendered in Lal and Co. Etc. V/s. A.R. Chadha, 1965 RCR 940 is not applicable to the facts of this case as that Judgment was qua the dispute between the landlord and the tenant. The interest of the parties there was apparently in conflict with each other, whereas in the instant suit of the parties are governed by a single document i.e. Partnership Deed and all of them derived their right, responsibilities and duties, benefits and losses from that very document i.e. Partnership Deed of 27th May, 1976. Albeit, subsequently they too are standing at opposite ends."CM(M) No.551/2010 Page 4 of 8
5. Defendants challenged the judgment of the first appellate court dated 19.7.2006 in a Regular Second Appeal (RSA) before this Court being RSA no.363-64/2006 and this RSA was dismissed by a learned Single Judge of this Court on 11.4.2008 with the following order:-
"+RSA No.363-64/2006
1. The respondent filed a suit for dissolution of the partnership firm M/s.Best Steel Traders. Rendition of accounts was also prayed for.
2. Since only question raised in the second appeal is pertaining to the finding of the learned Trial Judge as affirmed by the learned first Appellate Judge whether place of business i.e. premises No.18/39, Gali No.5, New Rohtak Road, Sarai Rohilla, New Delhi was under the tenancy of the firm or the appellant were the tenant, I need not note any other question debated between the parties before the learned Trial Judge and the first Appellate Judge.
3. The plaintiff i.e. respondent asserted that the firm was a tenant and under the partnership deed, vide Clause 9 the tenancy rights had to be adjudicated upon for the reason they belonged to the firm. Appellants asserted that they were the tenants of the premises.
4. Issue No.2 was framed as under :-
'Whether the suit premises were under the tenancy of defendants No.1 and 2 and they are only entitled to use the same?' OPD
5. The trial court has returned a finding in favour of the plaintiff i.e. the respondent. The same has been affirmed by the first Appellate Court.CM(M) No.551/2010 Page 5 of 8
6. The appellants placed on record only one rent receipt to prove that they were the tenants. DW-1 i.e. appellant No.1 attempted to prove the same.
7. The learned Trial Judge has considered the rent receipt as also the partnership deed proved as Ex.PW1/1. Finding returned is that the solitary receipt cannot prove that the appellants were the tenant.
8. Suffice would it be to note that whether the firm was a tenant or whether appellants were tenants is a question of fact. Suffice would it be to note that apart from the oral testimony of the parties the only documentary evidence was the rent receipt and the partnership deed.
Suffice would it be to further note that the author of the rent receipt i.e. the landlord was not produced in the witness box.
9. Thus, the finding returned by the learned Trial Judge predicated on the partnership deed cannot be faulted with.
10. Clause-9 of the partnership deed reads as under :-
"9. That, in case of dissolution of the said partnership firm the tenancy rights of the said business premises at Plot no.18/39, Gali No.5, Sarai Rohilla, New Rohtak Road, New Delhi shall belong inclusively to all the parties hereto and no party exclusively shall have any right whatsoever over the said tenancy rights of the said business premises."
11. The instant appeal is sought to be argued with reference to photocopies of certain rent receipts not proved or even filed with the trial judge. I note that no application under Order 41 Rule 27 has been filed. I would thus presume that the rent receipts were available with the appellants and it is too late in the day to predicate any claim thereon.
12. No substantial question of law arises for consideration.
13. The appeal is accordingly dismissed.
CM(M) No.551/2010 Page 6 of 8
14. No costs."
6. In law, the decision of an issue at one stage of a suit is res judicata for subsequent stages of the suit and the direct judgment of the Supreme Court on this point is the judgment in the case of Hope Plantations Ltd. Vs. Taluk Land Board, Peermade and Anr. (1999) 5 SCC 590. Therefore, the decision taken at the stage of preliminary decree that the premises belong to the partnership firm and not only to the defendant nos.1 and 2 is res judicata against the respondent nos.1 and 2/defendant nos.1 and 2 and therefore at the stage of final decree proceedings, respondent nos.1 and 2/defendant nos.1 and 2 now cannot again re-agitate this issue. Trial court has clearly fallen into an error in holding that the subject premises being the tenanted premises cannot be partitioned inter-se the partners because in law a tenanted premises can always be partitioned for inter se use among the tenants and merely because there is an inter-se division amongst the tenants for convenience of use of the tenanted property, the same will not amount to subletting, assigning or parting with the possession of the tenanted premises inter se the partners/tenants. Subletting, assigning or parting with possession arises only if the tenancy interest in one part of the property is extinguished in favour of other tenants, but mere inter-se division amongst partners who are co-tenants for the purpose of user of the tenanted CM(M) No.551/2010 Page 7 of 8 premises will not amount to subletting qua the landlord. Therefore, the tenanted premises are bound to be partitioned for inter-se use without destroying the tenancy rights of each of the decree holder/plaintiff and respondent nos.1 and 2/defendant nos.1 and 2 to the extent of 1/3 rd each of common tenancy interest in the property.
7. Since the trial court has committed a grave error of law, and the same causes prejudice to the petitioner/decree holder/plaintiff, impugned order dated 16.5.2009 is set aside. It is ordered that the trial court will now take up further proceedings with respect to deciding the inter-se division for the purpose of user of the premises no.18/39, Gali no.5, New Rohtak Road, Sarai Rohilla, Delhi between the three parties i.e plaintiff/decree holder and the defendant nos.1 and 2/judgment debtors to the extent of 1/3rd share each and of course subject to any equitable modification to a limited extent as provided in law as the trial court thinks fit.
8. Petition is allowed and disposed of in terms of the aforesaid observations, leaving the parties to bear their own costs.
VALMIKI J. MEHTA, J NOVEMBER 24, 2014 Ne CM(M) No.551/2010 Page 8 of 8