# E. V.MATHAI v. SUBORDINATE JUDGE, KO'ITAYAM & ORS

- **Citation:** [1970] 1 S.C.R. 345
- **Court:** Supreme Court of India
- **Decided:** 1969-04-21
- **Bench:** 1. c. SHAH, G. K. Mitter
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/e-v-mathai-v-subordinate-judge-ko-itayam-ors-4770
- **Pages:** 6

## Headnote

Kera/a Buildings _(Lease & Rent Control) Act, 1959-Repealed by
Kera/a 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 a. 20 of 1965 Act.
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 landlora brought an application before the Rent Control
Court of Kottayam for the eviction of the appellant on two grounds,
namely, (I) that be requited 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 df the appellant from part of the premises in question. Both parties went in revision
to the District Jud~e under s. 20 of the Act. The District Judge upheld
the order for evicbon of the appellant on the ground of subleting. In
revision under s. 115 of the Code of Civil Procedure the High Court refused to intetfere whereupon the appellant by special leave came to this
Court.
The appellant contended : ( 1) that it was provided in s. 11 ( 1) of the
1965 Act that proceedin!!IS 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 aauses 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 a.s a
court of appeal and disturb the 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
Clabses 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( I) laid doWn that a legal proceeding which could have been instituted, continued or enforced under the repealed Act of 1959 may be instituted under the coaesponding 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 car.respond" means to "be in harmony with or be similar,
analogous to";
It does not mean to "be identical with".
The·refore by
virtue of s. 34 (I) the appellant was liable to be evicted after the new Act
as well. [348 H-349 Fl
(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
SUPREME COURT REPORTS
[1970] 1 SC.R.
ord« passed or proceedings taken under the Act for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceedinl!'I asd 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 ot the District
Jud(;e 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 BJ
(iii) On the facts there was sufficient evidence to hold that there was
sub-letting of part of the premise•.

## Text

A
B
c
D
E
F
G
H
E. V.MATHAI
v.
SUBORDINATE JUDGE, KO'ITAYAM & ORS.
April 21, 1969
(1. c. SHAH AND G. K. MITTER, JJ.]
Kera/a Buildings _(Lease & Rent Control) Act, 1959-Repealed by
Kera/a 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 a. 20 of 1965 Act.
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 landlora brought an application before the Rent Control
Court of Kottayam for the eviction of the appellant on two grounds,
namely, (I) that be requited 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 df the appellant from part of the premises in question. Both parties went in revision
to the District Jud~e under s. 20 of the Act. The District Judge upheld
the order for evicbon of the appellant on the ground of subleting. In
revision under s. 115 of the Code of Civil Procedure the High Court refused to intetfere whereupon the appellant by special leave came to this
Court.
The appellant contended : ( 1) that it was provided in s. 11 ( 1) of the
1965 Act that proceedin!!IS 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 aauses 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 a.s a
court of appeal and disturb the 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
Clabses 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( I) laid doWn that a legal proceeding which could have been instituted, continued or enforced under the repealed Act of 1959 may be instituted under the coaesponding 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 car.respond" means to "be in harmony with or be similar,
analogous to";
It does not mean to "be identical with".
The·refore by
virtue of s. 34 (I) the appellant was liable to be evicted after the new Act
as well. [348 H-349 Fl
(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
SUPREME COURT REPORTS
[1970] 1 SC.R.
ord« passed or proceedings taken under the Act for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceedinl!'I asd 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 ot the District
Jud(;e 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 BJ
(iii) On the facts there was sufficient evidence to hold that there was
sub-letting of part of the premise•. This Court will also not interfere with
the concurrent findings elf the District Judge
and the 1-li&h Court in this
rrgard. [350 C-D)
CML 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. DaP.htary,
Sardar Bahadur,
Vishnu Bahadur
and
Yougindra Khushalani, for the appellant.
M. C. Chag/a and R. Gopa!akrishnan, 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 wa' 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-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 properti'Cs. 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 ?nd Rent Control) Act, -
I
B
c
D
F
G
-
H
A
B
c
D
E
F
G
H
E. v. MATHAI v. SUB JUDGE (Mitter, /.)
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
dismisseJ the ~etition with costs.
The main point urged by Mr. Daphtary counsel for the appellant was that assuming that there was a sub-letting by the tenant
a proceeding for eviction would only lie μnder the provisions of
the Act of 1965. Omitting the provisds, s.
11 (I) 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 sub-letting. 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 premis(lS
only if he satisfied the tests lajd down in sub-s. ( 4) which did
not make sub-letting before tbe commenc_ement of the Act a
ground for eviction. It is to be note!LKowever that s. 34 pf the
Act of 1965 provided for savings afid special provision in the
following manner.
Sub-s. ( 1) thereof runs as follows i
.
I
"(1) Notwithstanding the expiry of the -&:erala _
Buildings (Lease and Rent Control) Act, 1959 (Kerala
348
SUPREME oPUllT REPORTS
[1970] 1 S.CJl.
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. 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 er punishment may be
imposed as if the repealing Act had not been passed."
It wa~ 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 imtituted under the corresponding
provisions of the new Act.
Mr. Daphtary tried to meet this by
A
B
c
D
E
F
G
H
A
B
D
E
IF
G
H
E. v. MATHAI v. SUB JUDGE (Mitter, I.)
349
urging that s. 11 ( 4) of the Act of 1959 did not contain any co.rresponding provision.
Sul>-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. 11 however gave the landlord a right to apply
for eviction and 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 t)lereof, if the lease does
not confer on him any right to do so, or the landlord has
not consented to such sul>-letting;"
We find ourselves unable to accept Mr. Daphtary's argument
that the above quoted provision of s. 11 of the Act of 1959 was
not "a corresponding provision" within the meaning of the proviso to sul>-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 0.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. ( 1) 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 sul>-s. (1) of s. 11 in view of s. 34 ( 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 exainine 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
SUPREMli COUllT llEPORTS
[1970] l S.C.Jt..
order or proceedings and pass such order in reference thereto as
A.
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 Coun in revision under s. 115 of the Code of Civil Procedure and we do not
B
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 thel'e was a sub·
letting within the mischief of the Act. The buildings were let out
as a lodging house and the evidence showed that one of the rooms
C
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 telephQlle in his room.
In our opinion, there was
sufficient evidence to hold that the lawyer was in exclusive posI>
session 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 Coun and the High Coun both
accepted the evidence as conclusive of sub-letting.
In the result, the appeal fails and is dismissed with costs.
E.
G.C.
Appeal dismisoed.