HARILAL JERAM SINGALA Vs. DHARAMSI KANJI

JUDGEMENT

(1.) The present petitioner (original defendant) was a monthly tenant of the suit house in Veraval since before 1955-56 in 1955-56 he constructed a house in the same town and thereafter let it out to different tenants from time to time The last letting it appears was in the year 1961 The suit house came to be purchased from its original owner by the opponents in the year 1963. Admittedly in the year 1955-56 and subsequent thereto till January 1 1964 the Saurashtra Rent Control Act 1951 (which will hereafter be referred to as the Saurashtra Act) was applicable to the suit premises. It was from January 1 1964 that the Bombay Rents Hotel and Lodging House Rates Control Act 1947 (hereafter referred to as the Bombay Act) came to be applied. Under sec. 13(1)(L) of the Saurashtra Act a landlord became entitled to recover possession of any premises to which the Act applied if the Court is satisfied that the tenant after the coming into operation of the said Act has built acquired vacant possession of or been allotted a suitable residence. Thus so far as the Saurashtra Act was in force the building of a new house in the year 1955 and letting it out in that year as well as the year 1961 would have given a ground to the landlord to sue for possession under that Act. However the suit from which present revisional application arises was filed in the year 1967 relying inter alia upon the provisions of sec. 13(1)(L) of the Saurashtra Act. Sec. 13(1)(L) of the Bombay Act is in identical terms and provides that a landlord shall be entitled to recover possession of the premises to which the Act applied if the Court is satisfied that the tenant after coming into operation of the Bombay Act has built acquired vacant possession of or been allotted a suitable residence. In the present case however it is not disputed that the suitable residence as contemplated by sec. 13(1)(L) of the Bombay Act has not been built or its vacant possession acquired after the coming into operation of the Bombay Act i. e. after 1964 The opponents-plaintiffs relied upon acquisition of a suitable residence by the tenant when the Saurashtra Act was in force. They terminated the tenancy by a notice dated August 24 1967 i.e. after the Bombay Act came into force. The tenancy was terminated with effect from September 30 1967 and thereafter they instituted the suit for eviction on the sole ground that the tenant had acquired a suitable residence as contemplated by sec. 13 (1)(L) of the Saurashtra Act. This suit was decreed by the trial Court and that decree came to be confirmed in appeal by the learned Joint Judge Junagadh. A contention was taken up before the lower appellate Court that the ground for eviction as contemplated by sec. 13(1)(L) of the Saurashtra Act was not available to the present opponents in view of the repeal of that Act by the Bombay Act. The provision of the Bombay Act which repealed the Saurashtra Act as enacted by the Gujarat Act No. 57 of 1963 is sec. 51 which reads as under:

(2.) Another provision contained in sec. 13(1)(e) of the Saurashtra Act which entitled the landlord to recover possession of the premises governed by the Act if the Court is satisfied that the tenant has since the coming into operation of the said Act sublet the whole or part of the premises or assigned or transferred in any other manner his interest there in came up for consideration before a Division Bench of this Court in ISHA VALIMOHAMAD V. HAJI GULAM 12 GUJARAT LAW REPORTER PAGE 201. in that case also there was a subletting during the continuance of the Saurashtra Act and application of the Bombay Act i. e. after 1-1-1964. The Division Bench still held that the subletting by the tenant during the continuance of the Saurashtra Act resulted in accrual or acquisition of a right by the landlord and incurring of a liability by the tenant within the meaning of sub-clause (ii) of clause (1) of sec. 51 of the Bombay Act and therefore the landlord can file a suit after 1-1-1964 on the said ground which and arisen during the continuance of the Saurashtra Act for evicting the tenant. That case however went to the Supreme Court; and the Supreme Court confirmed the judgment of this Court on a different ground and not agreeing with the ground given by this Court that a legal right had accrued even though the notice terminating the tenancy was not given during the continuance and force of the Saurashtra Act. The decision of the Supreme Court is reported as ISHA VALIMOHMAD V. HAJI GULAM MOHAMMAD & HAJI DADA TRUST A.I.R. 1974 SUPREME COURT 2061. The only difference between Isha Valimohmads case (supra) and the present case is that the ground for eviction in the former case was subletting by the tenant during the continuance of the Saurashtra Act and the ground for eviction in the present case is acquisition OF a suitable residence by the tenant during the continuance of the Saurashtra Act.

(3.) Relying upon the ground on which the Supreme Court confirmed the decision of this High Court in Isha Valimohmads case (supra) Mr. Majmudar for the opponents has developed an interesting argument that in certain cases contemplated by sec. 13 of the Saurashtra Act which furnished a ground for eviction on account of the act done by the tenant no notice terminating the tenancy was necessary; and therefore even if the tenancy was not terminated the mere doing of the act by the tenant as contemplated by sec. 13(1) resulted in an accrued right to the landlord to evict the tenant without terminating the tenancy. A necessary corollary of this argument if accepted would be that even under the Bombay Act in cases governed by sec. 13 where the ground for eviction is given by an act done by the tenant no notice terminating the tenancy is necessary; and the landlord can straightway sue the tenant in ejectment relying upon the act of the tenant as a ground as contemplated by sec. 13 of the Bombay Act. As against this the learned advocate for the petitioner has maintained that the ratio of the decision of the Supreme Court in Isha Valimohamads case (supra) is applicable only to cases of subletting which had taken place during the continuance of the Saurashtra Act because of the prohibition against subletting contained in sec. 15 of the Saurashtra Act. Before examining these rival contentions it will be necessary to reproduce the relevant provisions of the Saurashtra Act as well as the Bombay Act relating to eviction of a tenant on the ground of subletting. The Saurashtra provisions read as under: