Davesh Nagalya v. Pradeep Kumar

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 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:

9. The learned Counsel for the appellants relied upon the judgment of this Court in Kunhayammed and Others v. State of Kerala and Another[2] 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

(iv) An order refusing special leave to appeal may be a nonspeaking 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,

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 of this Court in Pasupuleti Venkateswarlu v. The Motor & General Traders[4] 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 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 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 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 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, 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 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 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 Others[5] interpreting Section 12(2) and 25 of the Act. It was held as under:

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. 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 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 .............................................. J. (HEMANT GUPTA) ............................................. J. (A.S. BOPANNA) NEW DELHI; AUGUST 10, 2021.