Delhi High Court
Ram Gopal vs Ram Charan on 30 January, 2015
Author: Jayant Nath
$~A-1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgement reserved on: 15.01.2015
Judgment pronounced on: 30.01.2015
+ CS(OS) 737/1984
RAM GOPAL ..... Plaintiff
Through Mr. Samar Bansal and Mr.
Vinayak Mehrotra Advs
versus
RAM CHARAN ..... Defendant
Through Mr. Anil Sapra, Sr Adv. with
Sandeep Mital, Ms. Rupali Kapoor and Mr.
Mridul Yadav Advs.
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J.
IA.No. 13663/2013 (for rectification of decree dated 14.02.2008 by
defendant No.1)
1. This is an application filed by defendant No.1 under Sections 151, 152
and 153 of CPC for rectification/modification of order dated 14.02.2008.
2. A brief narration of background facts is necessary. This litigation is one
of the various family litigations that were pending within the family of late Sh.
Ganeshi Lal and Smt.Kasturi Devi. Sh. Ram Gopal, the plaintiff and Sh.Ram
Charan, defendant No.1 are the two sons of late Sh. Ganeshi Lal and Smt.
Kasturi. In 1962 the plaintiff, defendant No.1 and their father late Sh. Ganeshi
Lal commenced a business in partnership under the name and style of M/s Lalji
Mal Tika Ram i.e. Defendant No.2. Sh. Ganeshi Lal passed away in 1981.
CS(OS) 737/1984 1 of 19
Disputes arose between the two sons and their families resulting in multifarious
litigations. The present suit is filed by the plaintiff Ram Gopal for dissolution of
the partnership i.e. defendant No. 2 and rendition of accounts. Various other
litigations were also filed by the parties and their relatives.
3. During the pendency of the said suits, by the intervention of the court a
compromise was arrived at. The terms of the compromise were recorded vide
consent order dated 23.10.2007. The order records that it was agreed by the
parties that the immovable properties would be divided half and half between
the plaintiff and defendant No.1. Three separate lots were to be made i.e. for
properties at Mumbai, Delhi and Hathras, U.P. respectively. The parties were to
bid for the three lots separately and the party having the highest bid was to take
the property of that lot and pay 50% of the bid amount to the other side. If for
some reason the party making the highest bid was unable to pay within the
stipulated period, the other party would be entitled to the properties in question
on payment of 50% of that party's (lower bidder's) bid. Certain other disputes
were also sorted out which are not relevant for the purpose of the present
application.
4. Pursuant to the bids, the order dated 14.02.2008 was passed. The bids of
the two parties were as follows:-
Lots Ram Gopal Aggarwal's Ram Charan Aggarwal's
Bid plaintiff (Rs.) Bid defendant No.1(Rs.)
Delhi 4 crores 7.10 crores
Mumbai 3 crores 3.25 crores
Hathras 1 crore 1.5 crores
5. Hence, Ram Charan, namely, defendant No.1 was the highest bidder in
respect of all the three lots. Ram Charan paid the money for the Delhi lot and
CS(OS) 737/1984 2 of 19
the Mumbai lot but did not pay for the Hathras lot. On payment, he became
entitled to the properties forming part of the Delhi and Bombay lot.
6. The controversy centres around one of the properties which form part of
the Delhi lot, namely, 1375, Katra Lehswan, Chandni Chowk, Delhi. This
property was owned by Smt. Prem Lata and Sh.Ram Kishan i.e. the wife and
the son of Sh.Ram Gopal, namely, the plaintiff. This was purchased by the said
owners vide sale deed dated 25.05.1998. The ground floor of the said property
was in occupation of the firm defendant No.2. Previous litigation regarding this
property was also pending between the parties inasmuch as in 1999 defendant
No.1 had filed a suit for prohibitory injunction against Ram Gopal i.e. the
plaintiff herein and his wife and son praying that the said persons be restrained
from making additions, alterations or structural changes to the ground floor of
the said property.
7. It is the contention of the applicant/defendant No.1 that what was part of
the Delhi lot and was bid by the parties, was the ownership rights of the said
property at Chandni Chowk, Delhi. It is further alleged that the bid accepted by
the court pursuant to order dated 14.02.2008 was the bid pertaining to the
ownership rights in the said property in the Chandni Chowk, New Delhi. Hence
it is the contention of defendant No. 1 that pursuant to the order of this court
dated 14.02.2008 and the subsequent tender of payment by defendant No.1
pursuant to the bid, he became the absolute owner of the said property.
Defendant No. 1 subsequently filed an execution petition for directions to the
plaintiff, his wife and son to execute a conveyance deed in favour of defendant
No.1 in respect of the said property. This execution was allowed by the learned
Single Judge of this High Court vide order dated 30.08.2010. In appeal, the
CS(OS) 737/1984 3 of 19
Division Bench in EFA (OS) 23-24/2010 by an order dated 03.08.2012 reversed
the order of the learned Single Judge and dismissed the execution petition of
defendant No.1. It is urged by defendant No.1 that the Division Bench while
allowing the appeal of the plaintiff and dismissing the execution petition of
defendant No.1, granted liberty to defendant No.1 to approach this court by way
of the present application for modification and amendment of the decree.
Hence, the present application has been filed.
8. Leaned senior counsel appearing for defendant No.1/applicant has
strenuously urged that there is a clear ambiguity in the orders of this court dated
23.10.2007 and 14.02.2008 and hence a clarification/modification is required. It
is submitted that the applicant/defendant No. 1 had made a bid for the Delhi lot
for the title of the said property at Chandni Chowk, Delhi and not for the
tenancy rights for the said property. It is urged that when the bid was accepted
by the court on 14.02.2008 and an appropriate decree was passed, it implicitly
implied that what had been accepted by the court is the bid of the
applicant/defendant No.1 for the ownership rights in the said property. It is
further urged that based on the circle rates of the area in question where the
particular property is located, the market value comes to only Rs.1.6 crores. The
applicant/defendant No.1 had bid Rs. 3 crores for the said property whereas the
plaintiff had bid a paltry amount of Rs. 4 crores for three properties including
the first floor of one 1304 Katra Dhulia, Chandni Chowk and House No. 1287,
Sultan Singh Estate, Kashmere Gate. The combined bid for these three
properties of defendant No. 1 was Rs. 7.10 crores. It is urged that there was a
big gap between the bid of the plaintiff and that of defendant No.1 pertaining to
the said property at Lehswan Katra and this is a clear indication that what
CS(OS) 737/1984 4 of 19
defendant No.1 had bid was the ownership rights of the said property. It is next
urged that what was bid was the ownership right is also apparent from the fact
that though the wife of the plaintiff is not a party to the present suit her
statement was recorded saying that she has authorised her husband to make the
statement on her behalf.
9. It is further urged that the plaintiff has now become dishonest after
having received the consideration of Rs.1.5 crores for the said property being
his share of the bid amount. He has now filed an eviction petition against
defendant No. 1 for bona fide needs which shows the mala fide intentions of the
plaintiff. Reliance is also placed on the statement recorded of Sh. Ram Gopal
i.e. the plaintiff on 14.02.2008 on the date of the compromise which states that
no further claim shall be made by him or his family against defendant No.1 or
his family members in respect of the partnership firm as also properties which
form the subject matter of the disputes in these matters. It is apparent from the
said statement, it is urged that the plaintiff had agreed not to make any claim in
respect of the present property in dispute. It is lastly urged that even if for some
reason it is held by this court that the subject matter of the settlement between
the parties pertained to the tenancy of the disputed property, then an agreement
envisaging transfer of tenancy rights for consideration would be illegal and void
inasmuch as it is contrary to and is hit by Section 5(3) of the Delhi Rent Control
Act. Hence, it is urged that the parties could not have entered into an illegal
agreement and the court would also not have granted its stamp of approval on
the said agreement. Hence, it is urged that a clarification be issued that the
settlement between the parties entered into on 14.02.2008 and recorded on the
said date included the ownership rights of the disputed property.
CS(OS) 737/1984 5 of 19
10. Learned counsel appearing for the plaintiff has strenuously opposed the
application submitting that it is nothing but a gross abuse of the process of the
court. Learned counsel submits that all the contentions herein raised by
defendant No.1/applicant have been dealt with in a detailed order passed by the
Division Bench on 03.08.2012 in EFA(OS) No.23-24/2010. It is urged that
defendant No.1 is now estopped from re-agitating those claims and contentions
which have been rejected by the Division Bench of this High Court. It is further
strenuously urged that a perusal of order dated 03.08.2012 would show that no
liberty of any sort has been granted to defendant No. 1 to move this application
as has been wrongly and mischievously contended. Learned counsel also relies
upon the following documents to submit that the conduct of defendant No. 1
after passing of the decree dated 14.02.2008 would show that defendant No. 1
at no stage envisaged or was under the impression that the consent decree
passed by this court on 14.02.2008 comprised ownership rights to the disputed
property and not the tenancy rights only. The following are the documents
relied upon :-
(a) I.A. No. 4476/2008 filed by defendant No. 1 in April 2008 wherein
para 5, 6 defendant No. 1 states as follows:-
"5. That the order dated14.02.2008 does not
mention the identifying details of the
properties of the firm at Mumbai, Delhi and
Hathras and the same need to be incorporated
in the order dated 14.02.2008 and also the
consequential decree-sheet. Also, directions are
required to be issued to the Appropriate
Authorities in respect of the ownership
properties and to the Landlords in respect of
the tenancies to transfer the properties in the
name of the successful bidder i.e. the higher or
CS(OS) 737/1984 6 of 19
the default bidder.
6. Thus the following details of the
properties be incorporated and directions to the
corresponding Authorities and the Landlords
need to be issued to give effect to the order
dated 14.02.2008:
...
B) Delhi Lot
i. Shop at 1375, Katra Lheswan,
Delhi - 110 006.
Directions to: Smt. Premlata Ramgopal and
Ramkrishna Ramgopal regarding tenancy and
rent receipt."
(emphasis added)
Based on the above, it is urged that even in April 2008 defendant No. 1
was only seeking permission pertaining to the tenancy rights of the disputed
property.
Reliance is also placed on order dated 12.05.2008 by which the above
application was dismissed as not maintainable and where an observation was
made that the terms between the parties are clear.
(b) The application filed by defendant No. 1 under Section 25B of the
Delhi Rent Control Act dated 13.03.2009 before the Additional Rent
Controller relevant portion of which reads as follows:-
"xii) the records establish that Shri Ram Charan
(i.e., the respondent - deponent herein) gave a bid
of Rs.7.10 crores (Rupees Seven crores ten Lakhs)
for the properties at Delhi. This amount included
an amount of Rs.3.00 crore (Rupees three crores)
for the tenancy rights of 1375, Katra
Lehswan,Chandni Chowk, Delhi (i.e., the property
CS(OS) 737/1984 7 of 19
in dispute)" (emphasis added)
(c) Reliance is also placed on a letter dated 22.09.2008 written by
defendant No. 1 to Smt. Prem Lata, wife of the plaintiff which stated as
follows:
"I attempted to contact you at the address A-2,
Bhamashah Marg, Opp. Guru Harkishan Public
School, Delhi- 110 033; to offer you rent for the
premises at 1375, Katra Lheswan, Chandni Chowk,
Delhi - 110 006. However, I was not able to locate
your address. Kindly let me know the place, time
and mode of payment desired by you to enable me
to tender the rent."
Hence, it is urged that after the decree defendant No. 1 has himself
admitted to contact the landlord/wife of the plaintiff for the payment of rents.
Clearly, defendant No. 1 had envisaged that he had only got tenancy rights in
respect of the consent decree.
(d) Reliance is also placed on the decree sheet drawn up by the court
pursuant to order dated 14.02.2008 which clearly states that the property
in question is the tenancy rights in the disputed property.
11. Based on the above four documents, learned counsel submits that
defendant No.1 always understood that what was bid was the tenancy rights of
the said property and what he get was the tenancy rights. Learned counsel
further strenuously urges that the present application is another round of
litigation without any basis commenced by defendant No. 1 to harass the
plaintiff and the same should be dismissed.
12. In rebuttal defendant No. 1 has sought to clarify the documents relied
upon by the plaintiff as follows:-
CS(OS) 737/1984 8 of 19
(a) Regarding I.A. No. 4476/2008, it is urged that as is apparent from the
reading of the application what the applicant sought was a clarification
inasmuch as the order dated 14.02.2008 does not mention the identifying
details of the properties which need to be incorporated in the order. It was
in this context that the application was moved and it has no connection
with the present dispute.
(b) Regarding the application filed before the Additional Rent Controller, it
is urged that a full reading of the application would show that defendant
No. 1 has pointed out in para 12 that the title of the wife and son of the
plaintiff is not admitted as the actual landlord of the same is the firm
defendant No.2 as the plaintiff has used his own name to create a title to
the property whereas the funds have originated from defendant No.2
firm.
(c) Regarding the offer of rent as contained in letter dated 22.09.2008, it is
urged that this is immediately after the decree dated 14.02.2008 and
pertained to rentals payable to the wife and son of the plaintiff prior to
the completion of the bidding process and not for the period subsequent
thereto. It is urged that at no stage any rent has been paid or tendered to
the plaintiff or his wife and son.
(d) It is urged that there is no merit in the contention regarding the decree
order sheet and defendant No. 1 did file an execution petition for
directions to the plaintiff his wife and son regarding the said property to
register a Conveyance Deed in favour of defendant no.1.
13. I will first deal with the contention of the applicant that liberty was
granted by the Division Bench by the said order dated 03.08.2012 to approach
CS(OS) 737/1984 9 of 19
this court by moving of the present application. We may look at the relevant
portion of the order of the Division Bench dated 03.08.2012. The applicant has
relied upon the following observations in para 29 of the judgment which reads
as follows:-
"We record that the respondent has not asked for amendment or
modification of the decree but had filed an execution petition
stating that the decree itself postulates execution of the conveyance
deed by Prem Lata and Ram Kishan. The decree as discussed
above, does not stipulate or say so and is to the contrary."
14. It is clear from the reading of the said para 29 of the judgment that the
Division Bench has merely recorded that defendant No. 1 has not asked for
amendment or modification of the decree. It does not in any way stipulate or
state that any liberty is granted to defendant No. 1 to move the present
application to re-agitate and re-argue all the contentions and submissions that
have already been made before the Division Bench and dealt with by the
Division Bench. In fact the above observations in the order appear to be a
contention to support the view taken by the Division Bench that defendant No.
1 all along envisaged when he made the bid and when the consent decree was
passed that the court was only dealing with the tenancy rights in respect of the
disputed property and nothing else. The submissions of the applicant are
without any merits and have to be rejected. No liberty has been granted by the
Division Bench to file the present application. No such liberty can be
deciphered in the said order.
15. Even otherwise, in my opinion, the present application is hit by principles
akin to res judicata. In the execution petition out of which the judgment of the
Division Bench dated 03.08.2012 was passed, the issue was regarding the
CS(OS) 737/1984 10 of 19
execution of the decree as sought by defendant No.1. The execution sought
ownership rights in the disputed property and not the tenancy rights. The
submissions in support of the said execution are being repeated here for
supporting this application. The defendant no.1 is relying on the same
submissions to press this application. The only difference in the present
application is in the prayer clause i.e., here instead of execution defendant No.1
seeks amendment/modification/clarification of the decree. In my opinion, the
contention of defendant No.1 are clearly hit by principles akin to res judicata.
16. A reference in the above context may be had to the judgment of the
Supreme Court in Arjun Singh v. Mohindra Kumar and Ors AIR 1964 SC
993, wherein in para 16, the Supreme Court held as follows:-
"16. That the question of fact which arose in the two
proceedings was identical would not be in doubt. Of course,
they were not in successive suits so as to make the provisions
of s. 11 of the Civil Procedure Code applicable in terms. That
the scope of the principle of res judicata is not confined to
what is contained in s. 11 but is of more general application is
also not in dispute. Again, res judicata could be as much
applicable to different stages of the same suit as to findings on
issues in different suits. In this connection we were referred to
what this Court said in Satyadhyan Ghosal v. Sm. Deorajin
Debi MANU/SC/0295/1960MANU/SC/0295/1960 :
[1960]3SCR590 where Das Gupta, J. speaking for the Court
expressed himself thus :
"The principle of res judicata is based on the need of
giving a finality to judicial decisions. What it says is
that once a res is judicata, it shall not be adjudged
again. Primarily it applies as between past litigation
and future litigation. When a matter - whether on a
question of fact or on a question of law - has been
decided between two parties in one suit or proceeding
CS(OS) 737/1984 11 of 19
and the decision is final, either because no appeal was
taken to a higher court or because the appeal was
dismissed, or no appeal lies, neither party will be
allowed in a future suit or proceeding between the
same parties to canvass the matter
again............................ The principle of res judicata
applies also as between two stages in the same
litigation to this extent that a court, whether the trial
court or a higher court having at an earlier stage
decided a matter in one way will not allow the parties
to re-agitate the matter again at a subsequent stage of
the same proceedings."
17. Similarly, in Satyadhyan Ghosal and Ors v. Sm. Deorajin Debi and
Anr. AIR 1960 SC 941, the Supreme Court in para 7 and 8 held as follows:-
"7. The principle of res judicata is based on the need of giving
a finality of judicial decisions. What it says is that once a res
is judicata, it shall not be adjudged again. Primarily it applies
as between past litigation and future litigation. When a matter
- whether on a question of fact or an a question of law - has
been decided between two parties in one suit or proceeding
and the decision is final, either because no appeal was taken to
a higher court or because the appeal was dismissed, or no
appeal lies, neither party will be allowed in a future suit or
proceeding between the same parties to canvass the matter
again. This principle of res judicata is embodied in relation to
suits in s. 11 of the Code of Civil Procedure; but even where
s. 11 does not apply, the principle of res judicata has been
applied by courts for the purpose of achieving finality in
litigation. The result of this is that the original court as well as
any higher court must in any future litigation proceed on the
basis that the previous decision was correct.
8. The principle of res judicata applies also as between two
stages in the same litigation to this extent that a court, whether
CS(OS) 737/1984 12 of 19
the trial court or a higher court having at an earlier stage
decided a matter in one way will not allow the parties to re-
agitate the matter again at a subsequent stage of the same
proceedings."
18. Hence, the adjudication of disputes as per the judgment of the Division
Bench though may have taken place in a different stage of proceedings i.e. in
the execution petition the same would be binding on defendant No.1. It is not
open to defendant No.1 to re-agitate and re-argue the entire submissions and
now seek amendment/modification/clarification of decree on the same grounds.
I may, however, note that there is only one ground which appears to have not
been argued before the Division Bench i.e., that the consent decree passed by
this Court was vitiated as it is contrary to Section 5(2) of the Delhi Rent Control
Act as consideration is being paid for transferring the tenancy to defendant
No.1. That difference does not in any manner effect the legal position that
defendant no.1 cannot re-agitate the issues already decided by the Division
Bench.
19. De hors the above legal position, I have examined the contentions of the
applicant on merits. Even on merits the entire contentions and submissions of
defendant No. 1 are baseless and completely without any merit. The order of
this court dated 23.10.2007 clearly records as follows:-
"Insofar as the tenancy rights in respect of 1375, Lhtswa
Katra, Chandni Chowk, Delhi-6 are concerned, they are
also the subject matter of the bid in respect of the Delhi
Properties. It is stated by the parties that the ownership of
the said property belongs to the wife of Ram Gopal and his
son. It is made clear that whoever succeeds to this property
consequent to the bid would not be hindered in the
enjoyment of the same."
CS(OS) 737/1984 13 of 19
20. The said order of this Court clearly envisages that what is the subject
matter of the bid that was to take place between plaintiff and defendant No.1 is
the tenancy rights of the said disputed property and not its ownership rights. All
contentions of the applicant/defendant No.1 are completely devoid of merits.
The last sentence of the order, namely, "whoever succeeds to this property
consequent to the bid would not be hindered in the enjoyment of the same"
cannot be considered to imply that what was being bid was the ownership rights
in the property. Any such construction would be wholly contrary to the clear
and unambiguous language of the order. In view of this Order, it is clear that
there is no ambiguity or confusion of any sort, as is sought to be projected.
There are no grounds to clarify or modify the Order dated 14.02.2008.
21. The next argument of the applicant/defendant No.1 i.e. that the circle
rates of the area are Rs.1.6 crores and bid of the defendant was of Rs.3 crores is
of no consequence. It is a matter of common public knowledge that the circle
rates may not necessarily reflect the current market value of the property. Even
otherwise circle rates are fixed for an area. There could be other reasons and
factors as to why a particular property can be more valuable than the circle rates
including the fact that it has a location suitable for the business needs and
requirement of a particular party. This argument is of no merits whatsoever.
This high bid of defendant No.1 does not imply and cannot imply that what
was bid for was the ownership rights to the property in question and not the
tenancy rights.
22. There is also merit in the contentions of the plaintiff while relying on the
four documents pointed out above. Perusal of the said documents does show
that even after order dated 14.02.2008, defendant no.1 has assumed that the bid
CS(OS) 737/1984 14 of 19
pertains to tenancy rights of the said property and not the ownership rights.
Regarding the first document relied upon by the plaintiff i.e. I.A. No.4476/2008
filed by the applicant/defendant No. 1 which was filed in April 2008; this I.A.
clearly states that the bid was for the disputed property in respect of the tenancy
rights only. Merely because the applicant sought some other relief would not be
a ground to reject this contention. Further, regarding the second document i.e.
the application filed before the Additional Rent Controller, in this application
also the applicant has categorically mentioned that the bid involved the tenancy
rights of the disputed property. Though some attempt has been made at another
place in the application to dispute the title of the plaintiff and his family by
claiming that the property is bought from the funds/siphoned off from defendant
No. 2 that per se does not wash away the clear admission made in the
application that the bid pertained to the tenancy rights of the disputed property.
The dispute now sought to be created that in the said application pertaining to
the title of the plaintiff and his family appears to have been raised for the first
time before the Rent Controller Tribunal and was not a subject matter of the
present suit.
23. Similarly coming to the third document relied upon by the plaintiff i.e.
the communication dated 22.09.2008 sent by the applicant offering rent cannot
be construed to imply that it pertained to rent prior to the date of the decree
dated 14.02.2008 as is sought to be mischievously alleged. There was no reason
for defendant No. 1 to try and pay rent for that period when the firm was the
tenant of the disputed property i.e. prior to the decree.
24. Similarly, as far as the fourth document is concerned i.e. the decree sheet,
it is on record that the decree sheet clearly stipulates what is being transferred to
CS(OS) 737/1984 15 of 19
defendant No.1 are only the tenancy rights in the suit property. The decree was
passed on 14.02.2008. The defendant No.1 at no earlier stage sought correction
or modification of the said decree sheet, till filing of the present application on
26.08.2013, that too, after having lost in the Division Bench.
25. Hence to repeat, the four documents relied upon by the plaintiff clearly
show that all along the defendant No.1 was aware that the consent decree dated
14.02.2008 pertained to tenancy rights of the disputed property and not its
ownership rights. There is no confusion or ambiguity in the decree.
26. Coming to the submission of defendant No.1 regarding decree sheet
being vitiated on account of it being contrary to Section 5(3) of the Delhi Rent
Control Act, Section 5(3) of the Act reads as under:-
5. Unlawful changes not to be claimed or received. -
(1) ...
(2) ...
(3) It shall not be lawful for the tenant or any other person
acting or purporting to act on behalf of the tenant or a sub-
tenant to claim or receive any payment in consideration of
the relinquishment, transfer or assignment of his tenancy or
sub-tenancy, as the case may be, of any premises."
27. The property is owned by the wife and son of the plaintiff. The ground
floor had been given on rent to the partnership firm defendant No.2. Defendant
No.1 was a partner of defendant No.2. The suit is filed for dissolution of the
said firm and rendition of accounts.
28. As per the settlement and decree dated 14.02.2008, all claims and
disputes in respect of the matters pending in this Court or before any other court
have been settled by the parties. Presumably, in view of the fact that all the
CS(OS) 737/1984 16 of 19
assets have been distributed and accounts have been settled, the firm defendant
no.2 obviously had ceased to exist. The fact that the disputed property had
fallen to the share of defendant No.1, who was an erstwhile partner, cannot
mean that any subletting has taken place or tenancy has changed hands.
Reference in this context may be had to the judgment of the Division Bench of
this Court in the case of Kanahiya Lal Balkishan Dass v. Labhu Ram AIR
1971 Delhi 219, wherein in para 7, this Court held as follows:-
"7. Mr. Radhey Mohan Lal argues that even if Labhu Ram
was a partner of firm Gokal Chang Jagan Nath the allotment
of the premises in dispute of him on the dissolution of the
firm should be held to amount to subletting The learned
counsel in this context has emphasised the fact that the
original tenant of the premises was firm Gokal Chand Jagan
Nath. There is no force in the above contention. A firm, it is
well known, is a compendious name of the partners
Constituting the firm. According to Section 4 of the Indian
Partnership Act, 1932, persons who have entered into
partnership with one another are called individually
`partners' and collectively `a firm'. It would Therefore,
follow that when firm Gokal Chand Jagan Nath took the
premises in dispute on rent from the appellants, Labhu Ram
who was one of the partners of the firm became along with
the other partners a tenant in the premises. Subletting
essentially entails the induction of a third person into the
premises. The allotment of the shop to one of the partners of
the firm, which was the tenant of the premises, upon its
dissolution cannot amount to subletting.
We are fortified in this conclusion by a Bench decision
(Andley and Tatachar, JJ) of this Court in Smt. Saraswati
Devi v. L. Gian Chand, 1970 Ren Cr 874 (Delhi). It was
held in that case that where premises were leased out to a
partnership firm and one of the partners left the firm and a
CS(OS) 737/1984 17 of 19
new partner entered the firm, it did not amount to subletting.
In Murli Dhar v. Chuni La,, 1970 Rcj 922 (SC), it was held
by their Lordships of the Supreme Court that the firm name
was only a compendious way of describing the partners of
the firm was the same as occupation by its partners. The
Court held that where the old and new firms had a common
partner, the occupation by the new firm of a premises shall
be taken to be the occupation by the old tenant as the
common partner will be considered to be in possession all
through in his individual capacity. In Ram Viuchar v. Daulat
Ram Mohan Das, 1967, Delhi Lr 223, a Division Bench of
the Punjab High Court (Mahajan and Kapur, JJ.) held that
there would be no subletting of the premises if the firm
consisting of 6 to 10 partners was no longer in possession of
the premises and a firm consisting of 4 partners, who were
also partners of the first firm, was in possession."
29. The above judgment also noted with approval by this Court in the case of
Shri Narayan Shamnani v. Shri Rajender Prasad and Ors. ILR (2011) Supp.
(2) Delhi 77.
30. In the light of the above, there is no merit in the contention of defendant
No.1 that the decree dated 14.02.2008 is vitiated on account it the same being
contrary to the Delhi Rent Control Act. The tenancy has devolved as per law on
defendant no.1. There is no transfer of tenancy, as claimed.
31. Even otherwise the applicant is stopped on equity from now raising the
present contention. He has willingly participated in the bidding process. After
his bid was accepted, he has voluntarily paid the bid amount. Thereafter, after
the final decree, he has received exclusive possession of the disputed property
which possession he has enjoyed. The entire partition has been done based on
the bidding process. Now, by filing the present application claiming that the bid
qua the disputed property is hit by Delhi Rent Control Act is clearly a plea
CS(OS) 737/1984 18 of 19
which in equity cannot be accepted.
32. There are no grounds made out to modify the decree passed on
14.02.2008.
33. The present application is clearly is frivolous and is without any merit.
The same is dismissed with costs of Rs.50,000/-.
IA No.18400/2013
In view of order passed today in IA.No. 13663/2013 the present
application is disposed of as infructuous.
JAYANT NATH
(Judge)
JANUARY 30, 2015
An/rb/raj
CS(OS) 737/1984 19 of 19
