BAI SHANTABEN HARPALSINGH v. BAI AMRIT AMBA — 1981 DIGILAW 2 (GUJ)

D. H. SHUKLA, J. ( 1 ) THE petitioner in the Civil Revision Application was the original defendant in Regular Civil Suit No. 82 of 1971 which was filed in the Court of the Civil Judge (J. D.) at Junagadh by the plaintiffs Bai Amrit Amba and her husband late Mistry Bhovanbhai Kalabhai who are the opponents herein. ( 2 ) THE opponents had filed the aforesaid suit against the petitioner to recover vacant possession of the suit premises on a ground inter alga that the opponents had acquired a vacant possession of a suitable residence by constructing a new house after the Rent Act came into operation and claimed that they had become entitled to recover possession thereof from the petitioner. It is averred by them in the plaint that the petitioner had constructed a new house in Gandhigram situated at Junagadh after he came to reside as a tenant in the suit premises. It was also averred by them that despite the fact that the petitioner has acquired a suitable residence he did not shift to the same new residence with a view that he might continue to occupy the suit premises wherein he was a tenant at a low rent and would get higher rent from the new house constructed by him. They averred that with that ulterior ideas in his mind he had let out a portion of the new house and was keeping a portion of it which was vacant unoccupied. Even when the rented portion fell vacant he did not occupy it for himself but was re-letting it out on a higher rent. ( 3 ) BEFORE filing the suit the opponents had terminated the petitioners tenancy by a notice dated 26-12-1970 which is at Exh. 19. ( 4 ) THE petitioner resisted the opponents suit by filing a written statement at Exh. 8 by which he contended inter alia that it was not true that he had built or acquired a suitable residence as alleged by the opponents. He further contended that he had purchased a house at Gandhigram situated away from Junagadh on 4-2-1949 but it cannot be considered as suitable residence. It was purchased at a time when the Saurashtra Rent Control Act 1951 Saurashtra Act XXII of 1951 (hereinafter referred to as The Saurashtra Rent Act) was in force. He further contended that he had purchased a house at Gandhigram situated away from Junagadh on 4-2-1949 but it cannot be considered as suitable residence. It was purchased at a time when the Saurashtra Rent Control Act 1951 Saurashtra Act XXII of 1951 (hereinafter referred to as The Saurashtra Rent Act) was in force. He denied that he was not occupying the house built by him for the ulterior motive attributed to him by the opponents. He raised several contentions in his written statement in order to show how in different respects the new house was not a suitable residence for him into which details it is not necessary for me to enter in view of the concurrent finding by both the lower courts to the effect that the house constructed by the petitioner was a suitable residence. ( 5 ) XXX xxx xxx ( 6 ) XXX xxx xxx ( 7 ) XXX xxx xxx ( 8 ) XXX xxx xxx ( 9 ) XXX xxx xxx ( 10 ) XXX xxx xxx ( 11 ) MR. D. D. Vyas the learned Advocate for the petitioner formulated three points for my consideration namely (1) it could not be said from the evidence on the record of the case which discloses an admitted position that the petitioner had acquired a suitable residence for him and for his family members after coming into operation of the Bombay Rent Act (2) it could not be said from the evidence on the record of the case that the same residence was a suitable residence so far as the petitioner and his family members are concerned inasmuch as the house is not proved to be situated in the city limits of Junagadh where the petitioners and his family members are residing and (3) both the Courts below had reached an erroneous conclusion so Ar as the suitability of the residence is concerned is-a-vis the petitioner and his family members. ( 12 ) XXX xxx xxx ( 13 ) XXX xxx xxx ( 14 ) XXX xxx xxx ( 15 ) I am now required to consider and decide the first point for determination raised by Mr. Vyas. As it stands the point must be accepted. To repeat the first point as submitted by Mr. ( 12 ) XXX xxx xxx ( 13 ) XXX xxx xxx ( 14 ) XXX xxx xxx ( 15 ) I am now required to consider and decide the first point for determination raised by Mr. Vyas. As it stands the point must be accepted. To repeat the first point as submitted by Mr. Vyas it is to the effect that on the consideration of the evidence on the record it cannot be said that the petitioner has acquired a suitable residence for him and for his family after coming into Operation of the Bombay Rent Act. The learned Appellate Judge has observed in his judgment that the petitioner has admitted in his evidence that the plot of land in Gandhigram was purchased in the year 1949. That it is so is also found from the document of purchase dated 7-2-1949 vide Exh. 38 It also appears to be an admitted position that the construction work of the house was completed in the Far 1954. The Bombay hat Act cam to be applied to the area of Saurashtra on 1 and till then it was the Saurashtra Rent Act which was in force. Both the Courts below came to the conclusion that since the Bombay Rent Act came into operation long before the construction of the house was completed by the petitioner the relevant provision of the Bombay Rent Act applied and that they held the opponents entitled to recover the possession of the suit house from the petitioner. Needless to say it is not a correct conclusion reached by the Courts below as the material date which we must take into account is not the date on which the Bombay Rent Act cam into operation but the date on which it cam to be applied to the Saurashtra area wherein the suit house is situated. That date is 1-1-1964 and therefore it cannot be said that the petitioner acquired a suitable residence under Section 13 of the Bombay Rent Act can be availed of by the landlord only if the tenant after the coming into operation of this Act that is to say the Bombay Rent Act has built acquired vacant possession of or been allotted a suitable residence. In fact if the plaint is carefully perused there is no reference to the Bombay Rent Act at all and all that the opponents have stated in the plaint pargraph 6 is that the petitioner has constructed a new house suitable for his residence after coming into operation of the Rent Act. It was the learned trial Judge who while framing the issues introduced the element of the Bombay Rent Act and the learned Appellate Judge also then proceeded on the same lines. In fact if the opponents the to base their case only on the basis of section 13 (1) (l) of the Bombay Rent Act it must be admitted that they have no case. But it is difficult to take that view from the plaint mad with the sit notice (Exh. 19) dated 26 It is alleged in the suit notice that the petitioner has constructed a new house with all facilities after the coming into operation of the Bombay Rent Act Obviously if the opponents had in mind the commencement of the Bombay Rent Act as on 1-1-1964 they would not haw made such an allegation that it was after the coming into operation of the Bombay Rent Act that the petitioner acquired a suitable residence. The real question to be considered under these circumstances is that under the provisions of the Saurashtra Rent Act it is provided as under:13 Notwithstanding anything contained in this Act a landlord shall be entitled to recover possession of any premises if the Court is satisfied- (E) that the tenant has since the coming into operation of this Act sub-let the whole or part of the premises or assigned or transferred in any other manner his interest therein. 15 Notwithstanding anything contained in any law it shall not be lawful after the coming into operation of this Act for any tenant to sub-let the whole or any part of the premises let to him or to assign or transfer in any other manner his interest therein:provided that the Government may by notification in the Official Gazette permit in any area the transfer of interest in premises held under such lease or class of leases and to such extent as may be specified in the notification. 16 For the convenience and clarity sake I may also reproduce the relevant provisions which are corresponding to the provisions of the Saurashtra Rent Act from the Bombay Rent Act. They are as under:"13 (1) Notwithstanding anything contained in this Act (but subject to the provisions of Section 15 a landlord shall be entitled to recover possession of any premises if the Court is satisfied (E) that the tenant has since the coming into operation of this Act (unlawfully sub-let) the whole or part of the premises or assigned or transferred in any other manner his interest therein. 15 (1) Notwithstanding anything contained in any law (but subject to any contract to the contrary) it shall not be lawful after the coming into operation of this Act for any tenant to sub-let the whole or any part of the premises let to him or to assign or transfer in any other manner his interest therein. (PROVIDED that the (State) Government may by notification in the Official Gazette permit in any area the transfer of interest in premises held under such leases or class of leases and to such extent as may be specified in the notification ). 17 In other words the landlord was given under Section 13 of the Saurashtra Rent Act a right to recover possession similar to the right conferred by Section 13 of the Bombay Rent Act. There is no controversy before me that if the Saurashtra Rent Act had continued till the opponents filed the present suit they would have been entitled to recover the possession of the suit premises as per the evidence on the record of the case and as per the conclusion reached by the Courts below. The Saurashtra Rent Act was however repealed and the Bombay Rent Act came to be applied to the Saurashtra area of the State of Gujarat from 1 The opponents gave the suit notice (Exh. 19 on 26-12-1970 and filed the present suit on 8 and therefore indisputably both the acts were done by the opponents long after the Saurashtra Rent Act stood repealed. The right to file a suit to recover possession under Section 13 of the Saurashtra Rent Act was acquired by the opponents when that Act was in force whereas actually thesuit is filed by the opponents long after its repeal. The right to file a suit to recover possession under Section 13 of the Saurashtra Rent Act was acquired by the opponents when that Act was in force whereas actually thesuit is filed by the opponents long after its repeal. The question is can the opponents avail of these rights after the Saurashtra Rent Act stood repealed. In order to substantiate their claim the reliance is placed on Section 51 of the Bombay Rent Act. Its relevant provision stands as under:"51 The Saurashtra Rent Control Act 1951 (Sau. Act. XXII of 1951) and the Bombay Rents Hotel and Lodging House Rates Control Act 1947 Kutch area of the State of Gujarat by the Government of India Ministry of States Notification No. 215-J dated the 19th September 1951 are hereby rewaledprovided that- (1) Such repeal shall not- (I) affect the previous operation of law so repealed or anything duly done or suffered thereunder; (III) affect any right privilege obligation or liability acquired accrued or incurred under any law so repealed; (III) affect any penalty forfeiture or punishment incurred in respect of any offence committed against any law so repealed; or (IV) affect any investigation legal proceeding or remedy in respect of any such right privilege obligation liability penalty forfeiture or punishment as aforesaid; and (2) any such investigation legal proceeding or remedy may be continued instituted or enforced and any such penalty forfeiture and punishment may be imposed as if the aforesaid law had not been repealed;provided further that subject to the preceding proviso anything done or any action taken under any such law including any notification order notice or receipt issued or agreement made shall be deemed to have been done taken issued or made under the corresponding provisions of this Act and shall continue in force accordingly unless and until superseded by anything done or any action taken under the Act. ( 16 ) IT is submitted that the opponents acquired the fight to evict the petitioner under Section 13 of the Saurashtra Rent Act and that such a right is protected under the proviso sub-section (1); subsection (ii) in particular of Section 51 of the Bombay Rent Act. ( 16 ) IT is submitted that the opponents acquired the fight to evict the petitioner under Section 13 of the Saurashtra Rent Act and that such a right is protected under the proviso sub-section (1); subsection (ii) in particular of Section 51 of the Bombay Rent Act. The reliance is therefore not placed upon the provision under Section 13 (1) (l) of the Bombay Rent Actin order to succeed against the petitioner but reliance is placed upon the protection provided in the proviso to Section 51 of the Bombay Rent Act read with Section 13 of the Saurashtra Rent Act. ( 17 ) MR. D. D. Vyas the learned Advocate for the petitioner strenuously argued that the proviso to Section 51 of the Bombay Rent Act does not help the opponents and in support of his submission relied upon an unreported ruling in Civil Revision Application No. 1233/ 1970 and another unreported ruling in Civil Revision Application No. 314/ 1970 both decided by D. P. Desai J. (as he then was) on February 4 1975 and July 28 1976 respectively. At the conclusion of the arguments of Mr. D. D. Vyas and Mr. Hathi I realised that in order to appreciate the reasoning of D. P. Desai J. it is necessary to consider the other rulings also and for the proper consideration of the point in question therefore I propose to discuss the relevant rulings in their chronological order. ( 18 ) IN the case of Isha Valimohamad and Anr. v. Haji Gulam Mohmad Haji Dada Wakf by its sole trustee by his constituted attorney Haji Mohmad Ahmed and Another reported in 12 G. L. R. 1971 page 201 a Division Bench consisting of Mr. Justice N. G. Shelat and Mr. Justice S. N. Patel were called upon to consider a position which is very analogous though not quite similar to the facts of the present case. The suit was brought by the landlord for the possession of leased premises on the ground that the tenancy was terminated as the tenant had sublet the premises before 1-1-1964. The Saurashtra Rent Control Act was in force at the time of subletting. However the Bombay Rent Control Act 1947 (Gujarat Extension Amendment Act 1963 Act No. 57 of 1963) came into force on 1 By the said Act the Saurashtra Rent Control Act 1951 (Saurashtra Act XXII of 1951) was repealed. The Saurashtra Rent Control Act was in force at the time of subletting. However the Bombay Rent Control Act 1947 (Gujarat Extension Amendment Act 1963 Act No. 57 of 1963) came into force on 1 By the said Act the Saurashtra Rent Control Act 1951 (Saurashtra Act XXII of 1951) was repealed. Bombay Rents Hotel and Lodging Houses Rates Control Act 1947 with amendments was applied to the Saurashtra area. The contractual tanancy was terminated by a notice dated 13th July 1964 The suit was filed on 19th September 1964 Vakil J. considered the question as to whether the landlord was entitled to file a suit for possession on the ground of sub-letting that sub letting took place before 1-1-1964 after the Saurashtra Rent Control Act was repealed and the Bombay Rent Act with amendments came into force in Saurashtra Area. He was of the opinion that the landlord was entitled to file a suit for possession before 1-1-1964 after the Saurashtra Rent Control Act was repealed as the right to obtain possession was saved under Section 51 of the Bombay Rent Act. However in Civil Revision Application No. 72 of 1967 (Kanji Bhimji v. Purushottam Girdhar) decided on 12 August 1969 V. R. Shah J. had taken a different view and held that where subletting took place before 1 and no notice was served terminating the tenancy before 1-1-1964 the landlord has not acquired any right to file a suit for possession on the ground of subletting and therefore no suit was maintainable on the ground of subletting before 1-1-1964 after the Bombay Rents Hotel and Lodging House Rates Control Act 1947 with amendments was applied to the Saurashtra area. Vakil J. did not agree with the view taken by V. R. Shah J. and therefore he referred the matter to the Division Bench. The reference was in the following terms:"whether the landlord is entitled to maintain a suit for recovery of possession from the tenant on the ground of sub-letting under Section 13 of the Bombay Rent Act (57 of 1947) as applied to Gujarat State on 31st December 1963 where the sub-letting was made during the pendency of the Saurashtra Rent Control Act and neither the notice to terminate the contract was given nor the suit was filed before the date on which the Saurashtra Rent Control Act was repealed" ? ( 19 ) FOR the reasons stated in the judgment the Division Bench came to the conclusion With respect we are unable to agree with the view taken by our learned brother V. R. Shah J. that mere subletting before serving a notice before the Saurashtra Rent Act was repealed on 1-1-64 could not be said a right accrued or acquired by the landlord. We hold that subletting by a tenant in the Saurashtra area before 1-1-1964 even though no notice is served terminating the contractual tenancy before 1-1-64 was a right accrued or acquired by the landlord and liability incurred by the tenant within the meaning of sub-clause (ii) of clause (1) of the proviso to Section 51 and the landlord can file a suit after 1-1-64 on the said ground for evicting the tenant on the ground of subletting. It was further held We hold that where subletting is made during the pendency of the Saurashtra Rent Act and neither notice to terminate the contract is given nor the suit is filed before the date on which the Saurashtra Rent Control Act was repealed the landlord is entitled to maintain the suit for recovery of possession from the tenant on the ground of subletting under Section 13 (1) (e) of the Saurashtra Rent Control Act 1951 ( 20 ) THE aggrieved party in Isha Valimohamads case (supra) took the matter to the Supreme Court and the judgment of the Supreme Court in the said appeal is reported in AIR 1974 Supreme Court 2061. The Supreme Court per Mathew J. speaking for himself and for A. N. Ray C. J. did not uphold the view of the High Court that where subletting made during the pendency of the Saurashtra Rent Control Act and neither notice to terminate the contract is given nor the suit is filed before the date on which the Saurashtra Rent Control Act was repealed the landlord is entitled to maintain the suit for recovery of possession from the tenant on the ground of sub-letting under Section 13 (1) (e) of the Saurashtra Rent Control Act 1951. The Supreme Court observed in this connection If a notice under the provisions of the Transfer of Property Act was necessary to determine the tenancy on the ground of sub-letting we do not think that the High Court was right in its view that a right accrued to the landlord to recover possession of the premises under Section 13 (1) (e) of the Saurashtra Act merely because the tenant sub-let the premises and that was prohibited by Section 15 of that Act. In other words if the assumption of the High Court that a notice terminating the tenancy on the ground of sub-letting was necessary for filing a suit under Section 13 (1) (e) of the Saurashtra Act was correct then we do not think that the respondentlandlord had an accrued right which would survive the repeal of that Act unless the notice was issued determining the tenancy during the currency of that Act. We do not think that the right of a landlord to recover possession on the ground that the tenant has sub-let the premises is an accrued right before the issue of a notice if under any law it was necessary for the landlord to issue the notice to determine the tenancy on the ground of sub letting After overruling the view of the High Court on the question of the necessity of determining the tenancy however the Supreme Court upheld the final conclusion of the High Court for the reasons stated in paragraph 17 of the judgment which for clarity sake are reproduced verbatim 17 Under the Transfer of Property Act mere sub letting by a tenant unless the contract of tenancy so provides is no ground for terminating the tenancy. Under that Act a landlord cannot terminate a tenancy on the ground that the tenant had sub-let the premises unless the contract of tenancy prohibits him from doing so. The respondent-landlord therefore could not have issued a notice under any of the provisions of the Transfer of Property Act to determine the tenancy as the contract of tenancy did not prohibit subletting by the tenant. To put it differently under the Transfer of Property Act it is only if the contract of tenancy prohibits sub-letting by tenant that a landlord can forfeit the tenancy on the ground that the tenant has sub-let the premises and recover possession of the same after issuing a notice. To put it differently under the Transfer of Property Act it is only if the contract of tenancy prohibits sub-letting by tenant that a landlord can forfeit the tenancy on the ground that the tenant has sub-let the premises and recover possession of the same after issuing a notice. Section 111 of the Transfer of Property Act provides that a lease may be determined by forfeiture if the tenant commits breach of any of the conditions of the contract of tenancy which entails a forfeiture of the tenancy. If sub-letting is not prohibited under the contract of tenancy sub-letting would not be a breach of any condition in the contract of tenancy which would enable the landlord to forfeit the tenancy on that score by issuing a notice. If that be so there was no question of the respondent landlord terminating the tenancy under the Transfer of Property Act on the ground that the tenant had sublet the premises. It is only under Section 13 (1) (e) of the Saurashtra Act that a landlord was entitled to recover possession of the property on the basis that the tenant had sublet the premises; and that is because Section of that Act unconditionally prohibited a tenant from subletting. The Saurashtra Act nowhere insists that the landlord should issue a notice and terminate the tenancy before instituting a suit for recovery of possession under Section 13 of the Saurashtra Act on the ground that the tenant sublet the premises. It would follow that a right accrued to the landlord to recover possession under Section 13 (1) of the Saurashtra Act when the tenant sub-let the premises during the currency of that Act and the right survived the repeal of that Act under proviso (2) to Section 51 of the Bombay Act and therefore the suit for recovery of position of the premises under Section 13 (1) read with clause (c) of the Saurashtra Act after the repeal of that Act on the basis of the subletting during the currency of the Saurashtra Act was maintainable. In this view we think that the judgment of the High Court must be upheld and we do so. . ( 21 ) IN Civil Revision Application No. 1238/70 D. P. Desai J. had to consider similar position in the context however of differing Acts. A heavy reliance was placed on this ruling by Mr. In this view we think that the judgment of the High Court must be upheld and we do so. . ( 21 ) IN Civil Revision Application No. 1238/70 D. P. Desai J. had to consider similar position in the context however of differing Acts. A heavy reliance was placed on this ruling by Mr. D. D. Vyas and as the facts there of are analogous though not quite the same it may be looked into closely. The petitioner therein who was the 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 tenant 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 opponent in the year 1963. Admittedly in the year 1955-56 and subsequent thereto till January 1 1964 the Saurashtra Rent Control Act 1951 was applicable to the suit premises. It was from January 1 1964 that the Bombay Rents Hotel and Lodging House Rates Control Act 1947 came to be applied. Under Section 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 1955-56 and letting it out in that year as well as in the year 1961 would have given a ground to the landlord to sue for possession under that Act. In that case both the Trial Court and the Appellate Court decreed the plaintiffs suit. A contention was taken up before the lower Appellate Court that the ground for eviction as contemplated under Section 13 (1) (l) of the Saurashtra Act was not available to the landlord in view of the repeal of that Act by the Bombay Act. As against that contention of the tenant the landlord relied upon clause (ii) to proviso (1) to Section 51 which inter alia provided that the repeal shall not affect at right privilege obligation or liability acquired accrued or incurred under any law so repealed. As against that contention of the tenant the landlord relied upon clause (ii) to proviso (1) to Section 51 which inter alia provided that the repeal shall not affect at right privilege obligation or liability acquired accrued or incurred under any law so repealed. Relying upon the aforesaid provision the learned Appellate Judge overruled the tenants contention. The same contention was closely examined by D. P. Desai J. in his judgment. In doing so he closely examined Isha Valimohamads case (supra) in order to consider its effect on the case which was before him. During the course of his judgment Desai J. observed Therefore the Supreme Court decision in Isha Valimohamads Case (supra) makes one thing clear as regards accrual of a right or privilege under the saving clause of Section 51 which is under consideration. The position is that no right or privilege can accrue unless the tenancy had been validly terminated before the repeal of the Saurashtra Act. Thus with great respect would be the correct position arising from the protection given to a tenant under the contract of tenancy. So long as that protection is available to him he need not seek any other protection. So long as the contract is not validly terminated the landlord has no right to possession as distinguished from the right to recover possession. He further observed. Thus normally the right to possession would arise only on determination of a tenancy where a contractual tenancy is subsisting and the right to recover possession from such a tenant would follow the right to possession. The aforesaid observations made by the Supreme Court with regard to Section 12 of the Bombay Act apply with equal force to Section 13 of that Act and for that matter to the provisions of Sections 12 and 13 of the Saurashtra Act as well because both these Sections 12 and 13 of both the Acts speak of the right to recover possession. Normally therefore under Section 13 of the Saurashtra Act as well as the Bombay Act the right to recover possession could not have arisen unless the contractual tenancy us determined in accordance with law. As a necessary corollary it would follow that a sit to recover possession on any of the grounds mentioned in Section 13 could be instituted only after determination of the tenancy. As a necessary corollary it would follow that a sit to recover possession on any of the grounds mentioned in Section 13 could be instituted only after determination of the tenancy. However in a case of subletting under the Saurashtra Act the Supreme Court in Isha Valimohamads case (supra) came to the conclusion that the notice determining the tenancy in case of unlawful subletting was not necessary. Therefore the Supreme Court held that the right which the landlord had in that case on ac count of unlawful subletting by the count was a right to recover possestion which had accrued to the landlord under Section 13 (1) of the Saurashtra Act when the tenant sublet the premises during the currency of that Act which right survived the repeal of that Act. It is specifically on this ground that the judgment of this High Court came to be confirmed by the Supreme Court in Isha Valimohamads case. ( 22 ) THE learned Judge then proceeded to consider the position with regard to the ground of eviction which was before him namely the acquisition of suitable residence by the tenant and came to the conclusion that so far as that ground was concerned it was necessary for the landlord to terminate the tenancy before he could file a suit to recover possession. The learned Judge observed In my opinion the protection that a tenant has under this contract by the mere acquisition of a suitable residence by the tenant as contemplated by Section 13 (1) (l) of the Saurashtra Act. Therefore by the mere acquisition of a suitable residence no right or privilege accrued to the landlord unless the tenancy was terminated. If that is the correct reading of the decision of the Supreme Court it is clear that in the present case the landlord had no accrued right or privilege under the Saurashtra Act which has been saved by Section 51 of the Bombay Act notwithstanding the repeal of the Saurashtra Act. The result therefore is that the plaintiffs suit for possession which is based upon a ground which arose under the Saurashtra Act cannot be decreed because the right or privilege to obtain possession on this ground tad not accrued to the plaintiffs in view of the fact that they had not terminated the tenancy of the petitioner-tenant before the repeal of the Saurashtra Act. On the basis of that reasonning the Revision Application was allowed and the decree for possession passed by the Trial Court and confirmed by the lower Appellate Court was set aside. ( 23 ) IN Civil Revision Application No. 314 of 1970 D. P. Desai J. was required to consider an analogous position this time in the Revision Application which was filed by the petitioner-landlords who were the original plaintiffs in Suit No. 69 of 1968. The same view was taken by him as he look in Civil Revision Application No. 233/70 and dismissed the Civil Revision Application of the plaintiff-landlords stating In terms it was held by me that the dictum laid down in Isha Valimohamads Case (supra) is not applicable to a case under Section 13 of the Bombay Act or the Saurashtra Act. It is thus clear thatin the present case no right to recover possession had accrued under Section 13 of the Saurashtra Act which could survive its repeal. So long as the notice dated January 8 1968 was given the tenant had the protection of his contract. This contractual protection was not revoked by the enactment of Section 13 (1) (l) of the Saurashtra Act. As the notice terminating tenancy was given after the Saurashtra Act was repealed it cannot be said that any right under Section 13 (1) (l) of the Saurashtra Act survived the repeal. ( 24 ) THE important question however which remains for me to consider is what would be the effect of the judgments of Desai J. after the decision of the Supreme Court in the case of V. Dhanpal Chettiar v. Yesodai Ammal reported in AIR 1979 Supreme Court 1745 N. L. Untwalia J. speaking for himself and the other Judges of the Bench consisting of seven Judges stated the law which in my opinion renders the two decisions of Desai J. now obsolete. It is stated in the headnotes In order to get a decree or order for eviction against a tenant under any State Rent Control Act it is not necessary to give notice under Section 106 T. P. Act. Determination of a lease in accordance with the Transfer of Property Act is unnecessary and a mere surplusage because the landlord cannot get eviction of the tenant even after such determination. The tenant continues to be so even thereafter. Determination of a lease in accordance with the Transfer of Property Act is unnecessary and a mere surplusage because the landlord cannot get eviction of the tenant even after such determination. The tenant continues to be so even thereafter. That being so making out a case under the Rent Act for eviction of the tenant by itself is sufficient and it is not obligatory to found the proceeding on the basis of the determination of the lease by issue of notice in accordance with Section 106 of the T. P. Act. ( 25 ) DURING the course of its judgement the Supreme Court considered the judgment in the case of Isha Valimohamad v. Haji Gulam Mohamad and Haji Dada Trust (1975) 1 SCR 720 as well as other earlier decisions of the Supreme Court. During the course of the judgment the following observation is made:"such a cleavage of opinion cropped up in the various High Courts because of some observations of this Court in some decisions which will be presently alluded to. It was so on an erronous assumption if we may say so with great respect) that the difference in the phraseology of the different State Rent Acts justifies this difference of views. In our considered judgment on the question of a requirement of a notice under Section 106 of the Transfer of Property Act there is no scope for taking different views on the basis of the difference in the phraseology of the various Rent Acts. In this regard the difference in the language does not bring about any distinction. In all the States the law should be uniform viz. that either a notice is necessary or it is not. It was high time therefore that this larger Bench was constituted to lay down a uniform law for the governance of the whole country and not permit the unjustified different trend of decisions to continue". ( 26 ) LATER it was further observed It is true that the Rent Act is intended to restrict the rights which the landlord possessed either for charging excessive rents or for eviction (of) tenants. But if within the ambit of those restricted rights he makes out his case it is a mere empty formality to ask him to determine the contractual tenancy before institution of a suit for eviction. But if within the ambit of those restricted rights he makes out his case it is a mere empty formality to ask him to determine the contractual tenancy before institution of a suit for eviction. As we have pointed out above this was necessary under the Transfer of Property Act as mew termination of the lease entitled the landlord to recover possession. But under the Rent Control Acts it becomes an unnecessary technicality to insist that the landlord must determine the contractual tenancy. It is of no practical use after so many restrictions of his right to evict the tenant have been put. The restricted area under the various State Rent Act has done away to a large extent with the requirement of the law of contract and the Transfer of Property Act. If this be so why unnecessarily illogically and unjustifiably a formality of terminating the contractual lease should be insisted upon ? their Lordships categorically stated that the case of Punjalal v. Bhagwatiprasad (1963) 3 SCR 312 was not correctly decided. In the concluding porttion of the judgment the ratio is reiterated as under:"if we were to agree with the view that determination of lease in accordance with the Transfer of Property Act is a condition precedent to the starting of a proceeding under the State Rent Act for eviction of the tenant we could have said so with respect that the view expressed in the above passage is quite correct because there was no question of determination of the lease again once it was determined by efflux of time. But on the first assumption we have taken a different view of the matter and have come to the conclusion that determination of a lease in accordance with the Transfer of Property Act is unnecessary and a mere surplusage because the landloard cannot get eviction of the tenant even after such determination. The tenant continues to be so even there-after. That being so making out a case under the Rent Act for eviction of the tenant by itself is sufficient and it is not obligatory to found the proceeding on the basis of the determination of the lease by issue of notice in accordance with Section 106 of the Transfer of Property Act". That being so making out a case under the Rent Act for eviction of the tenant by itself is sufficient and it is not obligatory to found the proceeding on the basis of the determination of the lease by issue of notice in accordance with Section 106 of the Transfer of Property Act". ( 27 ) THUS the ratio in the case of V. Dhanpal Chettiar v. Yesodai Ammal (supra) now settles the law in no uncertain terms that once a landlord gets a right of eviction under a specified provision of the concerned Rent Act it is not a condition precedent for filling a suit to recover possession that he terminates the contractual tenancy as required under the provisions of the Transferof Property Act. ( 28 ) THE decision of the larger Full Bench therefore overrules the observation of the Division Bench in the case of Isha Valimohamad v. Haji Gulam Mohamad and Haji Dada Trust (Supra) which was to the following effect:"if a notice under the provisions of the Transfer of Property Act was necessary to determine the tenancy on the ground of subletting we do not think that the High Court was right in its view that a right accrued to the landlord to recover possession of the premises under Section 13 (1) (e) of the Saurashtra Act merely because the tennant sub-let the premises and that was prohibited by Section 15 of that Act. In other words if the assumption of the High Court that a notice terminating the tenancy on the ground of subletting was necessary for filing a suit under Section 13 (1) (e) of the Saurashtra Act was correct then we do not think that the respondent-landlord had an accrued right which would survive the repeal of that Act unless the notice was issued determining the tenancy during the currency of that Act. We do not think that the right of a landlord to recover possession on the ground that the tenant has sublet the premises is an accrued right before the issue of a notice if under any law it was necessary for the landlord to issue the notice to determine the tenancy on the ground of subletting". We do not think that the right of a landlord to recover possession on the ground that the tenant has sublet the premises is an accrued right before the issue of a notice if under any law it was necessary for the landlord to issue the notice to determine the tenancy on the ground of subletting". ( 29 ) THIS being the state of law after the decision in V. Dhanpal Chettiar v. Yesodai Ammal (Supra) the view taken by us is not in conflict with the view taken by Desai J. in the aforestated two Civil Revision Applications. I have reached a conclusion that the opponents had acquired accrued right and that the petitioner had incurred a liability during the subsistence of the Saurashtra Rent Act and that the accrued right of the opponents stand protected under clause (ii) to proviso (1) to Section 51 of the Bombay Rent Act. ( 30 ) THE point for determination No. 1 raised by Mr. Vyas in the result stands rejected. ( 31 ) XXX xxx xxx ( 32 ) XXX xxx xxx ( 33 ) XXX xxx xxx ( 34 ) XXX xxx xxx ( 35 ) XXX xxx xxx ( 36 ) IN the result the Civil Revision Application stands rejected. The rule is accordingly discharged with no Order as to costs. Rule discharged. .