IMPORTANT POINT
In second appeal, High Court is required to decide substantial question of law if framed by appellant and failing that by framing such questions.

JUDGMENT

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, AIR 1963 SC 468; H.C. Pandey Vs. G.C. Paul, AIR 1989 SC 1470; and H.C. Pandey Vs. G. C Kaul, AIR 1995 SC 676 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 Appel