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PETITIONER: E. V. MATHAI

       Vs.

RESPONDENT: SUBORDINATE JUDGE, KOTTAYAM & ORS.

DATE OF JUDGMENT: 21/04/1969

BENCH: MITTER, G.K. BENCH: MITTER, G.K. SHAH, J.C.

CITATION:  1970 AIR  337            1970 SCR  (1) 345  1969 SCC  (2) 194

ACT: Kerala  Buildings (Lease & Rent Control) Act,  1959-Repealed by  Kerala  Buildings  (Lease  &  Rent  Control)  Act  1965- Subletting  of leased premises during period covered by  old Act-Proceedings  for  eviction  under s. 11(4)  of  new  Act whether could lie-Jurisdiction of District Judge in Revision under s. 20 of 1965 Act.

HEADNOTE: In  1963 the appellant took certain premises on  lease.   At that time the Kerala Buildings (Lease and Rent Control) Act, 1959  was  in  force.  After the coming into  force  of  the Kerala  Buildings  (Lease and Rent Control)  Act,  1965  the landlord  brought  an application before  the  Rent  Control Court  of Kottayam for the eviction of the appellant on  two grounds,  namely, (1) that he required the premises for  his own  use and occupation, (2) that the appellant  had  sublet the  premises.  The Controller decided against the  landlord on both grounds.  In appeal the Subordinate Judge held  that there  was  no subleting but that  the  landlord’s  personal requirement  was  genuine and on the  later  ground  ordered eviction  of  the  appellant from part of  the  premises  in question.   Both  parties went in revision to  the  District Judge under s. 20 of the Act.  The District Judge upheld the order  for  eviction  of  the appellant  on  the  ground  of subleting.   In revision under s. 115 of the Code  of  Civil Procedure the High Court refused to interfere whereupon  the appellant by special leave came to this Court. The appellant contended : (1) that it was provided in s.  11 (I)  of  the 1965 Act that proceedings for the  eviction  of tenants  could be under the procedure of the new  Act  only; (2)  that s. 11(4) provided for eviction of tenants only  in respect  of sub-letting after the coming into force  of  the new  Act  whereas the alleged sub-letting by  the  appellant took place before; (3) that though s. 34(1) provided for the application  of  s.  4 of  the  Interpretation  and  General Clauses Act, 1125, the proviso to s. 34(1) showed a contrary intention (4) that there was no "corresponding provision" in the 1959 Act within the meaning of s. 34(1) of the new  Act; (5) that in any case the District Judge in revision under s. 20  could  not  sit as a court of  appeal  and  disturb  the

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concurrent  finding of fact by the Rent Controller  and  the Subordinate  Judge  that  there was no  sub-letting  of  the premises by the appellant. HELD  : (i) The contention that S. 4 of  the  Interpretation and  General Clauses Act, 1125 was not applicable because  a different  intention  appeared from s. 34(1) of the  Act  of 1965  could not be accepted.  The proviso to s.  34(1)  laid down  that a legal proceeding which could have  been  insti- tuted, continued or enforced under the repealed Act of  1959 may be instituted under the corresponding provisions of  the new Act.  The corresponding provision in the 1959 Act was s. 11(4) which provided for eviction in case of sub-letting  by the  tenant  without  the  consent  of  the  landlord.   "To correspond"  means  to "be in harmony with  or  be  similar, analogous  to".   It does not mean to "be  identical  with". Therefore by virtue of s. 34(1) the appellant was liable  to be evicted after the new Act as well. [348 H-349 F] (ii) The  words of s. 20 of the Act of 1965 are  much  wider than those in s. 115 of the Code of Civil Procedure.   Under s.  20(1)  the District Court is empowered to call  for  and examine the records relating to any 346 order  passed  or proceedings taken under the  Act  for  the purpose of satisfying itself as to the legality,  regularity or  propriety  of such order or proceedings  and  pass  such order  in reference thereto as it thinks fit.  On the  words of  the  section it could not be held that  a  ’revision  is limited  to a mere question of jurisdiction.  In  any  event the  order of the District Judge was confirmed by  the  High Court  and this Court will not examine whether the  revision was  properly heard and disposed of by the  District  Judge. [349 H-350 D] (iii)     On the facts there was sufficient evidence to hold that  there was sub-letting of part of the  premises.   This Court  will also not interfere with the concurrent  findings of  the  District Judge and the High Court in  this  regard. [350 C-D]

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 275 of 1969. Appeal  by special leave from the judgment and  order  dated November 5, 1968 of the Kerala High Court in C.R.P. No. 1482 of 1968. C.   K.   Daphtary,  Sardar  Bahadur,  Vishnu  Bahadur   and Yougindra Khushalani, for the appellant. M.   C. Chagla and R. Gopalakrishnan, for respondents Nos. 3 and 4. The Judgment of the Court was delivered by Mitter,  J.  This  is  an appeal by  special  leave  from  a judgment  and decree of the Kerala High Court  dismissing  a petition under s. 115 of the Code of Civil Procedure from an order of the District Judge of Kottayam. The  facts  are as follows.  The appellant before us  was  a monthly tenant of four houses covered by a single tenancy at a  rent  of Rs. 250 granted in 1953.  The landlord  filed  a petition in the Rent Control Court of Kottayam for  eviction of  the tenant on the ground that he required  the  premises for his personal use and occupation, and, secondly, that the tenant was guilty of sub-letting and as such not entitled to protection  under  the  Kerala  Buildings  (Lease  and  Rent Control)  Act,  1959.   The  Controller  held  against   the landlord  on  both the points.  On  appeal  being  preferred therefrom, the Subordinate Judge held that there was no sub-

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letting by the tenant but the landlord required the premises for his personal use and occupation.  He however found  that two  of the buildings formed the subject matter of  separate and  independent agreements between the parties and as  such allowed  eviction  of the tenants from two only out  of  the four  properties.   Both  parties went in  revision  to  the District  Judge,  Kottayam under s. 20 of Kerala  Act  2  of 1965.   It is pertinent to note here that the Kerala Act  of 1959  was repealed by the Kerala Buildings (Lease  and  Rent Control) Act,                             347 1965  and  the new Act came into force on 1st  April,  1965. The petition for eviction was filed on August 31, 1965 after the  coming into force of the new Act.  The  District  Judge held  that  the landlord had not proved that  he  bona  fide required   the  premises  let  for  his  personal  use   and occupation  but  disagreeing with the Subordinate  Judge  he held  that  there had been in fact sub-letting  and  on  the basis  thereof ordered eviction of the tenants from all  the four buildings.  The tenant went up to the Kerala High Court by  way  of  revision  under s. 115 of  the  Code  of  Civil Procedure and the High Court found that no grounds had  been made  out  for interference with the order of  the  District Judge and as such dismissed the petition with costs. The main point urged by Mr. Daphtary counsel for the  appel- lant  was that assuming that there was a sub-letting by  the tenant  a proceeding for eviction would only lie  under  the provisions  of the Act of 1965.  Omitting the  provisos,  s. 11(1) of the Act provided that :               "Notwithstanding  anything  to  the   contrary               contained  in  any  other law  or  contract  a               tenant  shall  not  be  evicted,  whether   in               execution  of a decree or otherwise except  in               accordance with the provisions of this Act.’ Sub-s.  (4) of the section however allowed the  landlord  to apply  for  eviction  on  the  ground  of  subletting.   The relevant portion of this sub-section runs as follows :               "(4) A landlord may apply to the Rent  Control               Court for an order directing the tenant to put               the landlord in possession of the building,-               (i)if  the  tenant after the  commencement  of               this Act, without the consent of the landlord,               transfers  his right under the lease, or  sub-               lets  the  entire  buildings  or  any  portion               thereof  if the lease does not confer  on  him               any right to do so; or               (ii) to (v) Counsel  urged  that whatever may have  been  the  provision under the Act of 1959 the proceedings by the landlord having been   started  after  the  repeal  of  that  Act  and   the commencement  of  the  Act of 1965 the  landlord  could  get possession  of the premises only if he satisfied  the  tests laid down in sub-s. (4) which did not make subletting before the commencement of the Act a ground for eviction.  It is to be noted however that s. 34 of the Act of 1965 provided  for savings and special provision in the following manner.  Sub- s. (1) thereof runs as follows :               "(1) Notwithstanding the expiry of the Kerala               Buildings  (Lease and Rent Control) Act,  1959               (Kerala               348               Act  16 of 1959) (hereinafter in this  section               referred  to as the said Act), the  provisions               of sections 4 and 23 of the Interpretation and               General  Clauses Act, 1125 (Kerala Act VII  of

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             1125), shall apply upon the expiry of the said               Act  as if it had then been repealed  by  this               Act;               Provided   that   any   investigation,   legal               proceeding  or  remedy which could  have  been               instituted,  continued or enforced  under  the               said  Act  if  it  had  not  expired,  may  be               instituted,  continued or enforced  under  the               corresponding provisions of this Act." Reference in this connection may also be made to s. 4 of the Kerala  Interpretation and General Clauses Act, 1125 (Act  7 of 1125) :               "4.  Where  any  Act  repeals  any   enactment               hitherto  made or hereafter to be made,  then,               unless  a  different  intention  appears,  the               repeal shall not-               (a)   revive anything not in force or existing               at the time at  which the repeal takes effect;               or               (b)   affect  the  previous operation  of  any               enactment so repealed or anything duly done or               suffered thereunder; or               (c)   affect any right, privilege,  obligation               or  liability  acquired, accrued  or  incurred               under any enactment so repealed; or               (d)   affect   any  penalty,   forfeiture   or               punishment incurred in respect of any  offence               committed  against any enactment so  repealed;               or               (e)   affect    any    investigation,    legal               proceeding  or remedy in respect of  any  such               right,   privilege,   obligation,   liability,               penalty,    forfeiture   or   punishment    as               aforesaid;  and any such investigation,  legal               proceeding   or  remedy  may  be   instituted,               continued  or enforced and any  such  penalty,               forfeiture or punishment may be imposed as  if               the repealing Act had not been passed." It  was argued by Mr. Daphtary that s. 4 was not  applicable because a different intention appeared from s. 34(1) of  the Act  of  1965.   We find ourselves  unable  to  accept  this contention.  The proviso to s. 34(1) lays down that a  legal proceeding  which  could have been instituted  continued  or enforced  under the repealed Act of 1959 may  be  instituted under  the  corresponding provisions of the  new  Act.   Mr. Daphtary tried to meet this by 349 urging  that s. 1 1 (4) of the Act of 195 9 did not  contain any  corresponding  provision.  Sub-s. (1) of s. 11  of  the 1959 Act laid down that:               "Notwithstanding  anything  to  the   contrary               contained  in  -any other law  or  contract  a               tenant  shall  not  be  evicted,  whether   in               execution  of a decree or otherwise except  in               accordance with the provisions of this Act.               Provided.................... Sub-s.  (4) (i) of s. 1 1 however gave the landlord a  right to apply for eviction land for an order directing him to  be put in possession of the building               "if the tenant has without the consent of  the               landlord transferred his right under the lease               or sub-let the entire building or any  portion               thereof,  if the lease does not confer on  him               any  right to do so, or the landlord  has  not               consented to such sub-letting;"

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We  find ourselves unable to accept Mr. Daphtary’s  argument that the above quoted provision of s. 1 1 of the Act of 1959 was  not "a corresponding provision" within the  meaning  of the  proviso to sub-s. (1) of s. 34 of the Act of 1965.   To correspond  means  to  ’be in harmony with  or  be  similar, analogous to’.  It does not mean to "be identical with"  and therefore the relevant provisions of s. 34(1) of the Act  of 1965  must  be held to be a provision  corresponding  to  s. 11(4)  of the Act of 1959.  Our attention was drawn  to  the short  notes of a judgment of the Kerala High Court in  O.P. No.  2653 of 1967 dated 4th October 1967, as given in  Short Notes  to  Part  1, The Kerala Law  Times,  1968.   We  find ourselves  unable  to accept the reasoning as given  in  the said Short Notes.  Mr. Daphtary raised a further  contention that  under the express words of sub-s. (I) of s. 11 of  the Act of 1965 the operation of any other law including the Act of  1959 was excluded.  We do not think that is  the  proper construction to be put on the words of sub-s. ( 1 ) of s.  1 1 in view of s. 3 4 ( 1 of the same Act. Mr.  Daphtary  next  argued  that it was  not  open  to  the District Court to revise the order of the Subordinate  Judge holding against sub-letting and thereby confirming the order of the Rent Controller on this point under s. 20 of the  Act of 1965.  The words of 20 however are much wider than  those in s. 115 of the Code of Civil.  Procedure.  Under s.  20(1) the District Court is empowered to call for and examine  the records  relating to any order passed or  proceedings  taken under the Act for the purpose of satisfying itself as to the legality, regularity or propriety of such 350 order  or  proceedings  and pass  such  order  in  reference thereto  as it thinks fit.  On the words of this section  we cannot hold that a revision is limited to a mere question of jurisdiction. %In our view the District Judge was  empowered to  consider  whether on the evidence the  findings  of  the Subordinate  Judge was proper.  In any event, -the same  was confirmed by the High Court in revision under s. 115 of  the Code  of Civil Procedure and we do not feel called  upon  to examine  the  question  as,  to  whether  the  revision  was properly heard and disposed of by the District Court. Lastly, Mr. Daphtary argued that on the facts the courts be- low should not have come to the conclusion that there was  a subletting  within the mischief of the Act.   The  buildings were let out as a lodging house and the evidence showed that one  of the rooms was in the occupation of a lawyer who  had been  there for years and had put up his name board  outside the room.  Besides the name board of the lawyer, there  were the name boards of other persons and the lawyer paid rent on a daily basis.  The lawyer had installed a telephone in  his room.  In our opinion, there was sufficient evidence to hold that the lawyer was in exclusive possession of the room  and although  the  rent was paid on a daily basis it was  not  a case  of the grant of a licence.  In any event, the  finding as  to  sub-letting does not call for interference  in  this case seeing that the District Court and the High Court  both accepted the evidence as conclusive of sub-letting. In the result, the appeal fails and is dismissed with costs. G.C. Appeal dismissed. 351