TMI Blog1974 (8) TMI 107X X X X Extracts X X X X X X X X Extracts X X X X ..... tenancy by a. notice dated February 12, 1964 on the ground that the appellants (tenants) had defaulted in the payment of rent and had sublet the premises. At the trial of the suit, the plea that the appellants committed default in payment of rent was given up and, therefore, the sole issue before the Court was whether the appellants had sub-let the premises. The contention of the appellants was that under the contract of lease, they had the right to sub-let the promises and, there-fore, the respondent was not entitled to recover possession of the premises. The trial court held that the contract of tenancy contained no prohibition against the tenant sub-letting the premises and so, the respondent was not entitled to recover possession of the premises for the reason that the appellants had sub-let the premises and dismissed the suit. The respondent. filed an appeal against this decree before the District Judge. He held that s. 15 of the Saurashtra Rent Control Act, 1951 (hereinafter referred to as the Saurashtra Act ) which prohibited a tenant from Sub-letting the premises superseded the contract of tenancy between the parties as that section was not subject to any contract to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssession 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. Therefore, there can be no doubt that the respondent could have filed a suit to recover possession under S. 13(1) of the Saurashtra Act on the ground that the appellants had sub-let the premises while that Act was in force. But the appellants submitted that since no notice ,terminating the tenancy was given before the repeal of the Saurashtra Act, the respondent-landlord had no accrued right to recover possession which could survive the repeal and therefore he was not entitled .to file the suit after the repeal of that Act, as under the corresponding ,provisions of the Bombay Act, the suit was not maintainable. Section 13(1)(e) of the Bombay Act provides : 13. When landlord may recover Possession.- (I) Notwithstanding anything contained in this Act but subject to the provisions of s. 15, a landlord shall be entitled to recover possession of any premises if the Court is satisfied- * * * * * * (e) that the tenant has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and that until the tenancy was terminated by a notice under the Transfer of Property Act, it cannot be said that any right accrued to the landlord to recover possession of the premises which would survive the repeal of the Saurashtra Act. 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 s. 13(i)(e) of the Saurashtra Act merely because the tenant sub-let the premises and that was prohibited by s. 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 s. 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 sub-let the premises is an accrued right before the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ected and preserved. It will be preserved even if a process of quantification is necessary. But there is a manifest distinction between an investigation in respect of a right and an investigation which is to decide whether some right should or should not be given. Upon a repeal the former is preserved by the Interpretation Act, The latter is not. In Free Lanka Insurance Co. Ltd. v. Ranasinghe (1) Lord Evershed said that the distinction between what was, and what was not, a right must often be one of great finance and the Court held that a claim given by the Ceylon Motor Car Ordinance of 1936 to an injured person against the other party involved in an accident was something more than a mere hope or expectation....he had in truth a right....although that right might fairly be called inchoate or contingent . We do not, however, think that the right of the landlord to terminate the tenancy by giving a notice on the ground that the tenant has sub-let the premises was an accrued right within the meaning of s. 51 of the Bombay Act which would survive the repeal of the Saurashtra Act. Mr. Patel for respondent contended that even if the landlord had no accrued right, he at lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tting before the repeal of that Act. The fact that the privilege to terminate the tenancy on the ground of sub-letting survived the repeal does not mean that the landlord had an accrued right privilege to recover possession under s. 13(1) of that Act as that right or privilege could arise only if the tenancy had been validly terminated before the repeal of the Saurashtra Act. Be that as it may, we do not, however, think that the High Court was right in its assumption that a notice under the Transfer of Property Act was necessary to terminate the tenancy on the ground that the appellant s had sub-let the premises; or, for that matter, the landlord could legally have terminated the tenancy by giving a notice, unless the contract of tenancy prohibited the tenant from subletting the premises. 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 respondentlandlord therefore could not have issued a notice under any ..... X X X X Extracts X X X X X X X X Extracts X X X X
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