LAWS(DLH)-2014-11-223

SHRI IRESH DUGGAL Vs. VIRENDER KUMAR SETH

Decided On November 24, 2014
Shri Iresh Duggal Appellant
V/S
Virender Kumar Seth Respondents

JUDGEMENT

(1.) THIS petition under Article 227 of the Constitution of India impugns the order of the trial court dated 16.5.2009 by which the trial court has rejected the prayer made by the decree holder/plaintiff for division of the tenanted premises in the ratio of 1/3rd for each of the parties to the suit in terms of the preliminary decree dated 25.9.2004 passed in a suit for dissolution of partnership and rendition of accounts. The tenanted premises are property no.18/39, Gali no.5, New Rohtak Road, Sarai Rohilla, Delhi.

(2.) THE decree holder/plaintiff had filed the subject suit for dissolution of partnership and rendition of accounts, and in which suit no.117/1993, a preliminary decree was passed on 25.9.2004 giving 1/3rd rights in the partnership to the decree holder/plaintiff and also to each of the defendant nos.1 and 2.

(3.) THIS issue was decided in favour of the decree holder/plaintiff and it was held that respondents/defendant nos.1 and 2 failed to discharge the onus that tenanted premises were the tenanted premises of the defendant nos.1 and 2 and not of the partnership firm. Though there are certain observations with respect to even if the division results in subletting qua the landlord the same would not make any difference to the entitlement of decree holder/plaintiff, however, the ultimate conclusion with respect to the issue was against the respondents/defendants by holding that the tenancy was of the partnership firm and not only of the respondent nos.1 and 2/defendant nos.1 and 2. The judgment and preliminary decree dated 25.9.2004 passed by the trial court was carried in an appeal but the first appellate court dismissed the appeal and confirmed the decree including the aspect that the tenanted premises are the tenanted premises of the partnership firm and that the tenanted premises were not exclusively of the respondent nos.1 and 2/defendant nos.1 and 2. Para 7 of the judgment of the appellate court dated 19.7.2006 is relevant and the same reads as under: -