1. Tenancy of non-residential premises — Admission of a non-family partner with authority — Subsequent death of partners — Deemed vacancy under U.P. Urban Buildings Act. (Para 1 , 3 , 4 , 5 )
Back
Next 
2021 Supreme(SC) 434
SUPREME COURT OF INDIA
HEMANT GUPTA, A.S. BOPANNA, JJ.
Davesh Nagalya (D) and Others – Appellants
Versus
Pradeep Kumar (D) through LRs. and Others – Respondents
Civil Appeal No. 3477 of 2010
Decided On : 10-08-2021
Important Points
IMPORTANT POINTS
(1) Court cannot ignore subsequent events which are germane to controversy, while deciding Review Petition.
(2) With death of both partners and not having any clause permitting continuation of partnership by legal heirs, non-residential tenanted premises is deemed to be vacant in law as tenant is deemed to have ceased to occupy building.
(1) Court cannot ignore subsequent events which are germane to controversy, while deciding Review Petition.
(2) With death of both partners and not having any clause permitting continuation of partnership by legal heirs, non-residential tenanted premises is deemed to be vacant in law as tenant is deemed to have ceased to occupy building.
Subject
Property Law - Tenancy and Eviction
Act Referred
Headnote
Rent and Eviction – U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 – Section 12 (2) – U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 – Rule 10(6) – Indian Partnership Act, 1932 – Section 42(c) – Deemed vacancy of tenanted premises – Dissolution of partnership on death of partners – In terms of Section 42(c) of Partnership Act, partnership stands dissolved by death of a partner – Subsequent event of death of one of partners cum successor-in-interest of tenant being relevant was bound to be taken into consideration by High Court in review petition – High Court has not taken note of such fact in review petition and failed to take into consideration subsequent events which were germane to controversy – With death of both partners and not having any clause permitting continuation of partnership by legal heirs, non-residential tenanted premises is deemed to be vacant in law as tenant is deemed to have ceased to occupy building – Order passed by High Court in Review Application set aside – Tenant is deemed to cease to occupy premises in question – Consequently, tenanted property has fallen vacant as well – Appellants may take recourse to remedy as may be available to them. (Paras 11, 13, 14 and 15)
Facts of the case:
Challenge in the present appeal is to an order passed by High Court of Uttarakhand in Review Application No.105/2008 on 23.04.2008 wherein factum of death of Pradeep Kumar, the 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 U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972.
Findings of Court:
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 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.
Result : Civil Appeal allowed.
Legal Category Hierarchy
Advocates appeared:
For the Appellant(s) :S.D. Singh, Braj Kishore Mishra, Aparna Jha, Rahul Kumar Singh, Jitender Singh, Meenu Singh, Ram Kripal Singh, Kamla Prasad, Hem Kumar, Bharti Tyagi. Advocates
For the Respondent(s):Arunabh Choudhary, Sharmila Upadhyay, Advocates
For the Appellant(s) :S.D. Singh, Braj Kishore Mishra, Aparna Jha, Rahul Kumar Singh, Jitender Singh, Meenu Singh, Ram Kripal Singh, Kamla Prasad, Hem Kumar, Bharti Tyagi. Advocates
For the Respondent(s):Arunabh Choudhary, Sharmila Upadhyay, Advocates
Table of Contents
2. Whether the death of a partner automatically dissolves the partnership and triggers deemed vacancy of tenanted premises under the U.P. Urban Buildings Act. (Para 1 , 4 , 5 )
3. The court observed that subsequent events, specifically the death of partners, must be considered if they fundamentally impact the right to relief. (Para 10 , 11 , 13 )
4. Partnership dissolved by death of a partner under Section 42(c), Partnership Act, without a continuation clause, results in deemed vacancy of non-residential tenanted premises. (Para 13 , 14 )
5. Appeal allowed — High Court order set aside — Tenanted premises declared vacant as the tenant is deemed to have ceased occupancy. (Para 14 , 15 )
6. Can a court take cognizance of events occurring after the institution of proceedings during a review petition?
Yes, if a fact arising after the litigation has commenced has a fundamental impact on the right to relief or the manner of moulding it, the court can and must take cautious cognizance of such developments to ensure substantial justice. (Para 10 , 11 )
7. Does the summary dismissal of a Special Leave Petition (SLP) bar a subsequent remedy of review in the High Court?
No, a summary dismissal of an SLP does not attract the doctrine of merger and does not substitute the order under challenge; therefore, it does not bar the remedy of review. (Para 9 )
8. What is the effect of a partner's death on a partnership and the associated tenancy of non-residential premises?
Under Section 42(c) of the Partnership Act, a firm is dissolved by the death of a partner unless a contract provides otherwise. Such dissolution leads to the tenant being deemed to have ceased occupying the non-residential building under the U.P. Urban Buildings Act. (Para 1 , 13 , 14 )
9. When is a non-residential building deemed vacant under Section 12(2) of the U.P. Urban Buildings Act?
A non-residential building is deemed vacant when a tenant carrying on business admits a person who is not a member of their family as a partner or a new partner. (Para 7 , 12 )
JUDGMENT :
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 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 U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 19721 [hereinafter referred to as the “Act”]. 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.
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 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 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 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 death of Tika Ram, he had left behind 8 legal heirs who were joint tenants 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 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 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 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, Pradeep Kumar i.e. one of the partners of the firm, the partnership does not survive in view of
