Case: DAVESH NAGALYA (D) &amp; ORS Vs. PRADEEP KUMAR (D) THR. LRS. AND ORS

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 Signature Not Verified and Eviction) Act, 1972(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 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 dissolved,—(a) xxx xxx xxx(b) xxx xxx xxx(c) by the death of a partner(d) xxx xxx xxx5. 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 record, both the partners, i.e. Pradeep Kumar and Subhash Chand had died on 21.05.2004 and 25.06.2014, respectively.

Reasoning: 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 functions, however we need not examine the said question in the present appeal.In Khoday Distilleries Ltd. v. Sri Mahadeshwara Sahakara Sakkare Karkhane Ltd. (2019) 4 SCC 376 ,  this Court re-iterated the principles of law as under:26.2 xxx xxx(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 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 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 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.(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 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.26.3. Once we hold that the law laid down in Kunhayammed [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 v. State of Kerala, (2000) 6 SCC 359  ].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 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 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 non-residential tenanted premises is deemed to be vacant in law as the tenant is deemed to have ceased to occupy the building.