Case: Gauri Shankar Vs. Rakesh Kumar

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 v. Trustee of Port of Bombay, AIR 1963 SC 468 ; H.C. Pandey v. G.C. Paul, 1989(1) R.C.R.(Rent) 493 : AIR 1989 SC 1470 ; and Harish Tandon v. Additional District Magistrate, Allahabad, AIR 1995 SC 676 , opined that notice of surrender of tenancy given by one of theand 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 thewithout 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.

Reasoning:
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 Appellant, that the alleged surrender of joint tenancy by Respondent No. 1 was a deceitful and fraudulent act not binding on the Appellant nor could impact the joint tenancy in respect of the suit shop, has not been examined by the High Court. The material facts to establish that plea have been brought on record by the Appellant and duly noticed by the trial court. However, the efficacy thereof has not been considered either by the first appellate Court or the High Court. The High Court was obliged to examine the aforementioned pleas taken by the Appellant including that the decisions of this Court relied upon by the first appellate Court to answer the issue against the Appellant were inapplicable to the fact situation of the present case and could be distinguished.6. As a result, we find merit in the argument of the Appellant that the parties be relegated before the High Court for a fresh consideration of the second appeal on its own merit in accordance with law and more so, the substantial questions of law formulated by the Appellant which are asWhether the tenancy of Respondent No. 1 and 2 as created w.e.f. 01.09.1975 in respect of Suit premises No. 47, UB, Jawahar Nagar, Delhi11006 jointly in their name can be said to be joint tenancy as contemplated in the judgment AIR 1989 SC 1470 "H.C. Pandey v. G.C. Paul"; which were passed in the context of joint tenancy conferred on the body of the legal heir of deceased or not?ii. Whether the Ld. Appellate Court was duty bound to address all issues and give finding therein afterof the facts and was not competent to uphold the finding summarily as sought to be done by the judgment dated 03.02.2005 or not?iii. Whether the Ld. Appellate Court was duty bound to deal with other issues except Issue No. 6?iv. Whether the Judgment/Decree of the Ld. Appellate Court dated 03.02.2005 was perverse and in breach of its jurisdiction as the appellate court by not giving independent finding passed onof pleading and evidence on record?v. Whether the Ld. Appellate Court upholding other issues ought to have passed such further direction for passing of the preliminary decree of rendition of account to its logical end as appointment of Local Commissioner and its terms set lapsed by then orWe may not be understood to have formulated the above noted questions while remitting the second appeal. It will be open to the High Court to reformulate the substantial questions of law or permit the parties to urge any further substantial questions of law that may require consideration by the High Court.