Case: E.V. Mathal Vs. The Subordinate Judge, Kottayam and Ors

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 Section 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force or existing at the time at which the repeal takes effect; or(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment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 Section 4 was not applicable because a different intention appeared from Section 34 (1) of the Act of 1965. We find ourselves unable to accept this contention.The proviso to Section 34 (1) lays down that a legal proceeding which could have been instituted, continued or enforced under the repealed Act of 1959 may be instituted under the corresponding provisions of the new Act.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 urging that Section 11 (4) of the Act of 1959 did not contain any corresponding provision. Sub-section (1) of Section 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-section (4) (i) of Section 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 thereof, if the lease does not confer on him any right to do so, or the landlord has not consented to such sub-letting;"We find ourselves unable to accept Mr. Daphtarys argument that the above quoted provision of Section 11 of the Act of 1959 was not "a corresponding provision" within the meaning of the proviso to sub-section (1) of Section 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 Section 34 (1) of the Act of 1965 must be held to be a provision corresponding to Section 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-section (1) of Section 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-section (1) of Section 11 in view of Section 34 (1) of the same Act.4. 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 Section 20 of the Act of 1965.The words of Section 20 however are much wider than those in Section 115 of the Code of Civil Procedure. Under Section 20 (1) the District Court is empowered to call for an 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 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 finding of the Subordinate Judge was proper. In any event, the same was confirmed by the High Court in revision under Section 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.5. Lastly, Mr. Daphtary argued that on the facts the Courts below should not have come to the conclusion that there 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 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.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]We find ourselves unable to accept this contention.The proviso to Section 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 urging that Section 11 (4) of the Act of 1959 did not contain any correspondingfind ourselves unable to accept Mr. Daphtarys argument that the above quoted provision of Section 11 of the Act of 1959 was not "a corresponding provision" within the meaning of the proviso to sub-section (1) of Section 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 Section 34 (1) of the Act of 1965 must be held to be a provision corresponding to Section 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 Shortdo not think that is the proper construction to be put on the words of sub-section (1) of Section 11 in view of Section 34 (1) of the samethe 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 finding of the Subordinate Judge was proper. In any event, the same was confirmed by the High Court in revision under Section 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 Districtour 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 offind ourselves unable to accept Mr. Daphtarys argument that the above quoted provision of Section 11 of the Act of 1959 was not "a corresponding provision" within the meaning of the proviso to(1) of Section 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 Section 34 (1) of the Act of 1965 must be held to be a provision corresponding to Section 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 Shortbuildings 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.r 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 todoes not call for interference in this case seeing that the District Court and the High Court both accepted the evidence as conclusive of