DAVESH NAGALYA (D) & ORS.versusPRADEEP KUMAR (D) THR. LRS. AND ORS.

184                      [2021]REPORTS
               SUPREME COURT    8 S.C.R. 184              [2021] 8 S.C.R.


A                     DAVESH NAGALYA (D) & ORS.
                                       v.
               PRADEEP KUMAR (D) THR. LRS. AND ORS.
                        (Civil Appeal No. 3477 of 2010)
B
                               AUGUST 10, 2021
              [HEMANT GUPTA AND A. S. BOPANNA, JJ.]
            Rent Control and Eviction:
C
            U.P. Urban Buildings (Regulation of Letting, Rent and
      Eviction) Act, 1972 – s. 12(2) – Deemed vacancy of building in
      certain cases – Subsequent events – Death of both partners and no
      clause permitting continuation of the partnership by the legal heirs–
      Non-residential tenanted premises – Held: Is deemed to be vacant
D     in law as the tenant is deemed to have ceased to occupy the building–
      U.P. Urban Buildings (Regulation of Letting, Rent and Eviction)
      Rules, 1972 – Partnership Act – s. 42(c).
            Allowing the appeal, the Court

E           HELD: 1.1 With the death of both partners and not having
      any clause permitting continuation of the partnership by the legal
      heirs, the non-residential tenanted premises is deemed to be
      vacant in law as the tenant is deemed to have ceased to occupy
      the building. In view thereof, the order passed by the High Court
      in Review Application is set aside.[Para 14][193-F-G]
F
             1.2 The order of permitting SC as partner with PK has come
      to an end by efflux of time and operation of law. In terms of section
      42(c) of the Partnership Act, partnership stands dissolved by death
      of a partner. One of the partners i.e., PK died on 21.05.2004.
      The High Court has not taken note of such fact in the review
G     petition and failed to take into consideration the subsequent
      events which were germane to the controversy. SC, the other
      partner also died during the pendency of appeal on 25.06.2014.
      It was represented to the District Magistrate by PK that SC is a
      divorcee and has no children but such assertion was not found to
H
                                      184
  DAVESH NAGALYA (D) & ORS. v. PRADEEP KUMAR (D)                       185
               THR. LRS. AND ORS.

be correct as he had two children, a son and a daughter who were       A
impleaded as his legal heirs.[Para 13][193-D-F]
      1.2 The tenant is deemed to cease to occupy the premises
in question. Consequently, the tenanted property has fallen vacant
as well. The appellants may take recourse to remedy as may be
available to them and may proceed in accordance with law and           B
the provisions of the Act.[Para 15][193-G]
        Kunhayammed and Others v. State of Kerala and
        Another (2000) 6 SCC 359 : [2000] 1 Suppl. SCR 538;
        Khoday Distilleries Ltd. v. Sri Mahadeshwara Sahakara
        Sakkare Karkhane Ltd. (2019) 4 SCC 376 : [2019]                C
        3 SCR 411; Pasupuleti Venkateswarlu v. The Motor &
        General Traders (1975) 1 SCC 770 : [1975] 3 SCR
        958; Harish Tandon v. Addl. District Magistrate,
        Allahabad, U.P and Others (1995) 1 SCC 537 : [1995]
        1 SCR 56 – referred to.                                        D
                        Case Law Reference
[2000] 1 Suppl. SCR 538           referred to          Para 9
[2019] 3 SCR 411                  referred to          Para 9
                                                                       E
[1975] 3 SCR 958                  referred to          Para 10
[1995] 1 SCR 56                   referred to          Para 12
        CIVIL APPELLATE JURISDICTION: Civil Appeal No.3477 of
2010.                                                                  F
      From the Judgment and Order dated 23.04.2008 of the High Court
of Uttarakhand at Nainital in Review Application MCC 105 of 2008 in
Writ Petition No.5282 of 2001.
      S. D. Singh, Braj Kishore Mishra, Rahul Kumar Singh, Jitender
Singh, Ms. Meenu Singh, Ram Kripal Singh, Kamla Prasad, Hem Kumar,     G
Ms. Shweta Sinha, Advs. for the Appellants.
        Ms. Sharmila Upadhyay, Adv. for the Respondents.


                                                                       H
186                 SUPREME COURT REPORTS                      [2021] 8 S.C.R.


A               The Judgment of the Court was delivered by
                HEMANT GUPTA, J.
            1. The challenge in the present appeal is to an order passed by the
      High Court of Uttarakhand in Review Application No.105/2008 on
      23.04.2008 wherein the factum of death of Pradeep Kumar, the
B     successor-in-interest of Tika Ram - the tenant, was not considered. The
      argument of the appellant was that the partnership between Pradeep
      Kumar and Subhash Chand, Respondent No.4 herein has come to an
      end automatically on the death of Pradeep Kumar on 21.05.2004.
      Therefore, tenancy also has come to an end in view of Section 12 (2) of
C     U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act,
      19721. It may be stated that during the pendency of the present appeal,
      Subhash Chand, another partner, who was allowed to enter into
      partnership with Pradeep Kumar by the District Magistrate also died on
      25.6.2014.

D            2. The legal heirs of Pradeep Kumar and Subhash Chand were
      served with notice in the Special Leave Petition which led to the present
      Civil Appeal. An application was filed by the appellant to implead the
      legal heirs of Subhash Chand namely, Amit Goyal son of late Shri Subhash
      Chand and Smt. Swati Goyal daughter of Shri Subhash Chand. Notice
      of the said I.A. Nos. 23917, 23920 and 23921 of 2019 was ordered to be
E     issued on 26.02.2020. As per the office report, notice was issued to the
      proposed legal heirs of the deceased Respondent No.4. The service
      was effected on the proposed legal heirs as per tracking report of the
      postal authorities. It is thereafter, on 28.07.2021, the application for
      substitution of the legal heirs of Respondent No. 4 was allowed. But
F     none has put an appearance on behalf of the legal heirs of Respondent
      No.4.
             3. Brief facts leading to the present appeal are that an application
      was filed by Pradeep Kumar in July 1982 before the Court of Rent
      Control and Eviction Officer, Dehradun, the District Magistrate, in terms
G     of the Act. In such application, Pradeep Kumar, the successor-in-interest
      of tenant Tika Ram averred that Subhash Chand was a divorcee and
      had no children and was willing to devote full time in the said proposed
      business of sale of milk, curd, ghee and butter. The application was
      however opposed by the landlord. It was inter alia averred that after
      1
H         Hereinafter referred to as the “Act”
   DAVESH NAGALYA (D) & ORS. v. PRADEEP KUMAR (D)                             187
        THR. LRS. AND ORS. [HEMANT GUPTA, J.]

death of Tika Ram, he had left behind 8 legal heirs who were joint tenants    A
in the disputed property. It was stated that Subhash Chand was a sub-
tenant and that he was involved in demolition, changing the structure
and making furniture for last two months. Shri Pradeep Kumar has put
such person in possession of the property. It is also averred that Subhash
Chand has been doing the business of milk products in Dehradun and
                                                                              B
that the application has been filed in order to only cover the sub-tenancy.
It was argued that Pradeep Kumar had put such person in possession of
the shop who was not a member of their family and thus property would
be deemed to be vacant under Section 12(2) of the Act. However, the
District Magistrate permitted Subhash Chand to be inducted as a partner
on 15.11.1982. It was thereafter, on 19.11.1982, a written partnership        C
deed was signed between Pradeep Kumar and Subhash Chand, a copy
of which is annexed herewith as P-4. Clause 6 of the said Partnership
Deed states that all provisions of the Partnership Act would be applicable.
       4. The landlord challenged the order passed by the District
Magistrate before the learned District Judge. Such revision petition was      D
dismissed on 12.12.1983. Further challenge before the High Court through
Writ Petition also remained unsuccessful vide order dated 10.10.2007.
The appellant challenged the said order by way of Special Leave Petition
before this Court but the same was dismissed on 10.01.2008. It is
thereafter, the appellant filed an application for review before the High
Court inter alia on the ground that pursuant to the death of the tenant,      E
Pradeep Kumar i.e., one of the partners of the firm, the partnership
does not survive in view of Section 42(c) of the Partnership Act. Section
42(c) reads as under:
      “42. Dissolution on the happening of certain contingencies.
      —Subject to contract between the partners a firm is                     F
      dissolved,—
      (a) xxx            xxx               xxx
      (b) xxx            xxx               xxx
      (c) by the death of a partner                                           G
      (d) xxx            xxx               xxx”
      5. Such review was dismissed vide order impugned in the present
appeal on the ground that the petitioners have entirely set up a new case
and the grounds urged are different from that of the writ petition. As on
                                                                              H
188             SUPREME COURT REPORTS                           [2021] 8 S.C.R.


A     record, both the partners, i.e. Pradeep Kumar and Subhash Chand had
      died on 21.05.2004 and 25.06.2014, respectively. Hence, now the
      argument is that in terms of Section 42(c), the partnership stands dissolved
      by law. There is no clause in the partnership deed which permits the
      legal heirs of the deceased partners to continue with the partnership
      firm. Therefore, by operation of law, the partnership has come to an
B
      end.
             6. Though learned counsel for the appellant raised an argument
      that approval of the District Magistrate, an Executive Authority, to seek
      permission to sublet or admit a partner was against the principle of
      separation of powers between the executive and judicial or quasi-judicial
C     functions, however we need not examine the said question in the present
      appeal.
            7. The relevant provisions of the Act read as under:
            “12. Deemed vacancy of building in certain cases-
D           (1) A landlord or tenant of a building shall be deemed to have
                ceased to occupy the building or a part thereof if-
                (a) he has substantially removed his effects therefrom; or
                (b) he has allowed it to be occupied by any person who is not
                    a member of his family; or
E
                (c) in the case of a residential building, he as well as members
                    of his family have taken up residence, not being temporary
                    residence, elsewhere.
            (2) In the case of non-residential building, where a tenant carrying
F               on business in the building admits a person who is not a member
                of his family as a partner or a new partner, as the case may be,
                the tenant shall be deemed to have ceased to occupy the
                building.
            25. Prohibition of sub-letting.-
G           (1) No tenant shall sub-let the whole of the building under his
                tenancy.
            (2) The tenant may, with the permission in writing of the landlord
                and of the District Magistrate, sub-let a part of the building.

H
   DAVESH NAGALYA (D) & ORS. v. PRADEEP KUMAR (D)                                189
        THR. LRS. AND ORS. [HEMANT GUPTA, J.]

          Explanation.- For the purposes of this section-                        A
      (i) Where the tenant ceases, within the meaning of clause (b) of
          sub-section (1) or sub-section (2) of Section 12, to occupy the
          building or any part thereof, he shall be deemed to have sub-let
          that building or part;
      (ii) Lodging a person in a hotel or a lodging house shall not amount       B
           to sub-letting.”
       8. In terms of Section 41 of the Act, U.P. Urban Buildings
(Regulation of Letting, Rent and Eviction) Rules, 1972 have been
published on 1.7.1972. Every landlord had to give notice of the vacancy
in writing to the District Magistrate, if a building had fallen vacant under     C
Section 15 of the Act. Under Section 16 of the Act, District Magistrate
has been authorized to pass an order in respect of user of such building.
Rule 10 deals with allotment procedure of a building which has fallen
vacant. Sub-Rule 6 is relevant for the purpose of present appeal, which
reads thus:                                                                      D
      “6. A person who is deemed to have ceased to occupy a building
      within the meaning of Section 12(1)(b), or who is evicted under
      Section 21 by virtue of being a tenant referred to in Explanation
      (1) of Section 21(1) shall not be allotted that or any other residential
      building and a person who is deemed to have ceased to occupy a             E
      building within the meaning of Section 12(2), shall not be allotted
      that or any other non-residential building for a period of two years
      from the date of such eviction or deemed cessation, as the case
      may be:
      Provided that-                                                             F
      (a) if the District Magistrate is satisfied in a case referred to in
          Section 12(2) that the admission of partner or new partner is
          bona fide transaction and not a mere cover for sub-letting,
          he shall, if any application had been made in that behalf before
          the admission of such partner or new partner, allot the non-
                                                                                 G
          residential building in question afresh to the newly constituted
          or re-constituted firm.
      (b) ………………………………….”
       9. The learned Counsel for the appellants relied upon the judgment
of this Court in Kunhayammed and Others v. State of Kerala and                   H
190                SUPREME COURT REPORTS                         [2021] 8 S.C.R.


A     Another2 that the summary dismissal of the special leave petition does
      not bar the remedy of review as the same is permissible under law. In
      Khoday Distilleries Ltd. v. Sri Mahadeshwara Sahakara Sakkare
      Karkhane Ltd.3, this Court re-iterated the principles of law as under:
               “26.2         xxx                                    xxx
B              (iv) An order refusing special leave to appeal may be a non-
               speaking order or a speaking one. In either case it does not attract
               the doctrine of merger. An order refusing special leave to appeal
               does not stand substituted in place of the order under challenge.
               All that it means is that the Court was not inclined to exercise its
C              discretion so as to allow the appeal being filed.
               (v) If the order refusing leave to appeal is a speaking order i.e.
               gives reasons for refusing the grant of leave, then the order has
               two implications. Firstly, the statement of law contained in the
               order is a declaration of law by the Supreme Court within the
D              meaning of Article 141 of the Constitution. Secondly, other than
               the declaration of law, whatever is stated in the order are the
               findings recorded by the Supreme Court which would bind the
               parties thereto and also the court, tribunal or authority in any
               proceedings subsequent thereto by way of judicial discipline, the
               Supreme Court being the Apex Court of the country. But, this
E              does not amount to saying that the order of the court, tribunal or
               authority below has stood merged in the order of the Supreme
               Court rejecting the special leave petition or that the order of the
               Supreme Court is the only order binding as res judicata in
               subsequent proceedings between the parties.
F              (vi) Once leave to appeal has been granted and appellate
               jurisdiction of the Supreme Court has been invoked the order
               passed in appeal would attract the doctrine of merger; the order
               may be of reversal, modification or merely affirmation.
               (vii) On an appeal having been preferred or a petition seeking
G              leave to appeal having been converted into an appeal before the
               Supreme Court the jurisdiction of the High Court to entertain a
               review petition is lost thereafter as provided by sub-rule (1) of
               Order 47 Rule 1 CPC.
      2
          (2000) 6 SCC 359
H     3
          (2019) 4 SCC 376
      DAVESH NAGALYA (D) & ORS. v. PRADEEP KUMAR (D)                                191
           THR. LRS. AND ORS. [HEMANT GUPTA, J.]

         26.3. Once we hold that the law laid down in Kunhayammed                   A
         [Kunhayammed v. State of Kerala, (2000) 6 SCC 359] is to be
         followed, it will not make any difference whether the review
         petition was filed before the filing of special leave petition or was
         filed after the dismissal of special leave petition. Such a situation
         is covered in para 37 of Kunhayammed case [Kunhayammed
                                                                                    B
         v. State of Kerala, (2000) 6 SCC 359]”.
       10. The argument of the learned counsel for the appellant is that
subsequent events consequent to the order passed by the District
Magistrate had to be taken into consideration. The High Court however
failed to take into consideration death of one of the partners leading to
deemed vacation of the premises. The appellant relied upon the judgment             C
of this Court in Pasupuleti Venkateswarlu v. The Motor & General
Traders4 wherein it has been held as under:
         “4. We feel the submissions devoid of substance. First about the
         jurisdiction and propriety vis-à-vis circumstances which come into
         being subsequent to the commencement of the proceedings. It is             D
         basic to our processual jurisprudence that the right to relief must
         be judged to exist as on the date a suitor institutes the legal
         proceeding. Equally clear is the principle that procedure is the
         handmaid and not the mistress of the judicial process. If a fact,
         arising after the lis has come to court and has a fundamental              E
         impact on the right to relief or the manner of moulding it, is brought
         diligently to the notice of the tribunal, it cannot blink at it or be
         blind to events which stultify or render inept the decretal remedy.
         Equity justifies bending the rules of procedure, where no specific
         provision or fairplay is not violated, with a view to promote
         substantial justice- subject, of course, to the absence of other           F
         disentitling factors or just circumstances. Nor can we contemplate
         any limitation on this power to take note of updated facts to confine
         it to the trial Court. If the litigation pends, the power exists, absent
         other special circumstances repelling resort to that course in law
         or justice. Rulings on this point are legion, even as situations for       G
         applications of this equitable rule are myriad. We affirm the
         proposition that for making the right or remedy claimed by the
         party just and meaningful as also legally and factually in accord
         with the current realities, the Court can, and in many cases must,
4
    (1975) 1 SCC 770                                                                H
192                SUPREME COURT REPORTS                         [2021] 8 S.C.R.


A           take cautious cognizance of events and developments subsequent
            to the institution of the proceeding provided the rules of fairness
            to both sides are scrupulously obeyed. On both occasions the High
            Court, in revision, correctly took this view. The later recovery of
            another accommodation by the landlord, during the pendency of
            the case, has as the High Court twice pointed out, a material
B
            bearing on the right to evict, in view of the inhibition written into
            Section 10(3) (iii) itself. We are not disposed to disturb this approach
            in law or finding of act.”
            11. Therefore, the subsequent event of death of Pradeep Kumar
      being relevant was bound to be taken into consideration by the High
C     Court in the review petition.
            12. The appellant also relied upon the judgment of this Court
      reported as Harish Tandon v. Addl. District Magistrate, Allahabad,
      U.P and Others5 interpreting Section 12(2) and 25 of the Act. It was
      held as under:
D           “17. When sub-section (2) of Section 12 provides that whenever
            a tenant carrying on business in a building admits a person, who is
            not a member of his family, as a partner, the tenant shall be deemed
            to have ceased to occupy the building, full effect has to be given
            to the mandate of the Legislature. There is no escape from the
            conclusion that such tenant has ceased to occupy the building. No
E
            discretion is left to the court to enquire or investigate as to what
            was the object of such tenant while inducting a person as partner
            who was not the member of his family. It can be said that the
            aforesaid statutory provision requires the court to come to the
            conclusion that by the contravention made by the tenant, such
F           tenant has ceased to occupy the building. The framers of the Act
            have not stopped only at the stage of Section 12(2) but have further
            provided in Section 25, Explanation (i) another legal fiction saying
            that where the tenant ceases to occupy the building within the
            meaning of sub-section (2) of Section 12 “he shall be deemed to
            have sub-let that building or part”. In view of the three deeming
G           clauses introduced in sub-section (2) of Section 12, sub-section
            (4) of Section 12 and Explanation (i) to Section 25, no scope has
            been left for the courts to examine and consider the facts and
            circumstances of any particular case, as to what was the object

      5
H         (1995) 1 SCC 537
   DAVESH NAGALYA (D) & ORS. v. PRADEEP KUMAR (D)                                193
        THR. LRS. AND ORS. [HEMANT GUPTA, J.]

       of admitting a person who is not the member of the family, as             A
       partner and as to whether, in fact, the premises or part thereof
       have been sub-let to such person.
       xxx                          xxx                         xxx
       25. The framers of the Act have clearly expressed their intention
       in Sections 12, 20 and 25 while protecting the tenant from eviction       B
       except on the grounds mentioned in Section 20, that after the
       death of the original tenant his heirs will be deemed to be holding
       the premises as joint tenants and for any breach committed by
       any of such joint tenants, all the heirs of the original tenant have to
       suffer. They cannot take a plea that unless the grounds for eviction
       mentioned in sub-section (2) of Section 20 are established                C
       individually against each one of them, they cannot be evicted from
       the premises in question.”
       13. We find that the order of permitting Subhash Chand as partner
with Pradeep Kumar has come to an end by efflux of time and operation
of law. In terms of Section 42(c) of the Partnership Act, partnership            D
stands dissolved by death of a partner. One of the partners i.e., Pradeep
Kumar died on 21.05.2004. The High Court has not taken note of such
fact in the review petition and failed to take into consideration the
subsequent events which were germane to the controversy. Subhash
Chand, the other partner also died during the pendency of appeal on
25.06.2014. It was represented to the District Magistrate by Pradeep             E
Kumar that Subhash Chand is a divorcee and has no children but such
assertion was not found to be correct as he had two children, a son and
a daughter who were impleaded as his legal heirs.
       14. Therefore, with the death of both partners and not having any
clause permitting continuation of the partnership by the legal heirs, the        F
non-residential tenanted premises is deemed to be vacant in law as the
tenant is deemed to have ceased to occupy the building. In view thereof,
the order passed by the High Court in Review Application dated
23.04.2008 is set aside.
       15. The Civil Appeal is thus allowed and the tenant is deemed to
cease to occupy the premises in question. Consequently, the tenanted             G
property has fallen vacant as well. The appellants may take recourse to
remedy as may be available to them and may proceed in accordance
with law and the provisions of the Act.

Nidhi Jain                                                     Appeal allowed.   H