Narayan Prasad Tulsian v. Shital Prasad Saha — 1975 DIGILAW 143 (PAT)

JUDGMENT S. K. Jha, J. The facts involved in these two applications under Articles 226 and 227 of the Constitution at the instance of the same person are identical and the points of law involved common. Hence this common judgment. The respondents also are the same in the two applications and the order impugned is that incorporated in Annexure 3 to each of the petitions. The petitioner is the tenant in two premises in Ward No. 3, Circle No. 5, in the town of Bhagalpur, and respondent no. I is the landlord there of Annexure 3 is an order dated the 22nd of July, 1974 passed by respondent no. 2 purporting to Act, under section 12(3) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 3 of 1947 (hereinafter to be called the Act). The prayer made is for the issuance of a writ of certiorari quashing the entire proceedings under section 12 (3) of the Act, against the petitioner at the instance of respondent no. 1 in each of the applications. 2. The facts are admitted. The undisputed facts are that an application under section 12 (3) of the Act, was filed by Shital Prasad Saha (respondent no. 1) in the Court of the Munsif, 2nd Court, Bhagalpur (respondent no. 2), for passing an order of eviction against the petitioner (tenant). The petitioner initially is said to have been inducted on the land for eleven months under a Sada kirayanama. After the expiry of the period fixed under the aforesaid kirayanama, the petitioner continued remitting monthly rent to the landlord (respondent no. 1) through post. These remittances were accepted all the time by the landlord. Some time later while the petitioner was still holding over, he filed an application under section 5 of the Act, before the Rent Controller for fixation of fair rent. It seems that as a counter-blast to that proceeding, respondent no. 1 (the landlord) filed an application in the two cases under section 12(3) of the Act, before the learned Munsif praying for an order of eviction of the petitioner on the ground that the tenancy had terminated by efflux of time. Notices were duly issued to the petitioner in the proceeding under section (12)3. On one date the petitioner did appear and filed his show cause in both the cases. Notices were duly issued to the petitioner in the proceeding under section (12)3. On one date the petitioner did appear and filed his show cause in both the cases. But for some reason or other on account of the petitioner's absence on subsequent dates, the application under section 12(3) of the Act, in each of the two cases was set down for exparte hearing and after such exparte hearing the impugned orders have been passed ordering the eviction of the petitioner. The order sheets of the two cases are incorporated in Annexure 2' to each of the applications while the final order directing the petitioner to be evicted in both cases is incorporated in Annexure 3' 3. The petitioner contend that the whole proceeding under section 12(3) of the Act, was without jurisdiction as the applications by the landlord under that provision of law were not maintainable at all and respondent no. 2 had absolutely no jurisdiction to entertain such applications. It was submitted that the proceedings under section 12(3) could be resorted to only when the tenant had availed of the privilege conferred on him under section 12(1) or an appropriate order had been passed by the Court under section 12(2) of the Act. Since in the present cases the tenant had not availed of the privilege conferred on him under section 12(1) nor had the Court passed any order under section 12(2) of the Act, no action under section 12(3) could be initiated at the instance of the landlord. In my view, there is sufficient force in this contention put forward on behalf of the petitioner. It will be noticed from the language of section 11 of the Act, that subject to the provisions of section 12 and notwithstanding anything contained in any contract or law to the contrary, a tenant in possession of any building shall not be liable to eviction thereon except in execution of a decree passed by the Court on one or more of the grounds enumerated in that Section. One of the grounds mentioned in section 11 (1) (e) is that a tenant can be evicted in the case of a tenant holding on a lease for a specified period on the expiry of the period of the tenancy. One of the grounds mentioned in section 11 (1) (e) is that a tenant can be evicted in the case of a tenant holding on a lease for a specified period on the expiry of the period of the tenancy. The general rule, therefore, is, even in the case of a tenant holding on a lease for a specified period, to get an appropriate decree from a competent civil court after having undergone all the formalities required by law including the notice to quit under section 106 and determining the tenancy under section 111 of the Transfer of Property Act. That position was not debated at the Bar in view of the Full Bench decision of this Court in the case of Niranjan Pal and another v. Chaitanyalal Ghosh and another AIR. 1964 Pat 401 (FB). This ordinary procedure for eviction of the tenant by the landlord by obtaining a decree on one or more of the grounds enumerated in section 11 has been made subject to one of the exceptions laid down in section 12. It is worthwhile to notice the language of section 12 here. “(1) If a tenant in possession of any building, held on a lease for a specified period intends to extend the period limited by such lease, he may give the landlord at least on month before the expiry of the period limited by the lease, a written notice of his intention to do so, and upon the delivery of such notice the said time shall, subject to the provision of section 11, be deemed to have been extended by double the period covered by the original lease subject to a maximum of one year. (2) Where the landlord to whom notice has been given under sub-section (1) wishes to object to the extension demanded by the tenant on one or more of the grounds mentioned in Sub-section (1) of section 11 or on the ground that the landlord has any other good and sufficient cause for terminating the lease on the expiry of period limited there by, he may, within fifteen days of the delivery of such notice, apply to the Court in that behalf and the Court after hearing the parties may terminate the lease or extend the same for such period as it deems proper in the circumstances: Provided that the tenant shall not in any case be allowed to remain in possession of the building beyond the period permissible under Sub-Section (1). (3) If the tenant fails to vacate the building on the termination of the lease or as the case may be on the expiry of the period fixed by the Court under subsection (2), the Court shall, on an application by the landlord, pass an order for ejectment, which shall be executed as a decree and may further order that the tenant shall pay to the landlord such amount as may be determined by it as daily compensation.” I will be noticed that a tenant in possession of any building, held on a lease for a specified period, has been given option under sub section (1) of section 12 to give a written notice of his intention to extend the period limited by such lease at least one month before the expiry of the period. On such notice being delivered, the time fixed under the lease of a specified period shall be deemed to have been extended by double the period covered by the original lease but in no case exceeding a period of one year and that too subject to the provisions of section 11. On such notice being delivered, the time fixed under the lease of a specified period shall be deemed to have been extended by double the period covered by the original lease but in no case exceeding a period of one year and that too subject to the provisions of section 11. Sub-Section (2) of section 12 lays down that the landlord to whom notice has been given if he wishes to object to the extension demanded on one or more of the grounds contemplated by law may within 15 days of the delivery of such notice put forth his objection before the Court in that regard and the Court after hearing the parties may either terminate the lease or extend the same for an appropriate period, in no case exceeding the period as introduced by the legal fiction, under sub-section (1) of section 12. Thereafter sub-section (3) of section 12 provides that if the tenant fails to Vacate the building either on the termination of the lease or on the expiry of the period fixed by the Court, that is, either after the expiry of the deemed extension of time under sub-section (1) of Section 12 or after the expiry of the time fixed by the Court under sub-section (2), the landlord may resort to a summary proceeding under sub-section (3) of section 12 and in such a summary proceeding on his mere application the Court may pass an order of eviction which in law has the force of a decree. In my considered view, therefore, the summary procedure prescribed in section 12(3) of the Act, can be resorted to only in cases where the tenant has exercised his option under section 12(1) and/or where the Court has passed an appropriate order under sub-section (2) of Section 12. Where no notice has been given by the tenant to the landlord before the expiry of the fixed period under the lease certainly the provisions of sub-section (2) of section 12 are not attracted and in that event it automatically follows that there can be no resort to any proceeding under section 12(3) of the Act. 4. I am fortified in my view by a number of decisions which, though not squarely covering the point, have indicated the principles and objects governing section 12 of the Act. 4. I am fortified in my view by a number of decisions which, though not squarely covering the point, have indicated the principles and objects governing section 12 of the Act. In' the case of Odhavajee Muljee and another v. Ram Krishna lal shaw and others 1963 BLJR 358 a Bench of this Court held that the procedure of a suit contemplated by section 11 (1) (c) of the Act, only applies to a case where there is no statutory extension of the lease under section 12 (1), but once there is notice given by the tenants for an extension of the lease under section 12 (1) and there is by statutory fiction an extension of the lease under section 12 (1) then the provisions of section 12 (3) come into operation and it is open to landlord to apply to the court for eviction of the tenant on the termination of the extended period of the lease. That is the procedure contemplated by section 12 (3) which governs cases falling both under sub-section (1) and (2) of section 12. In the case of Ramji Saran v. Krishna Chandra Khanna 1970 BLJR 321 it was similarly observed by a Bench of this Court that after an order either terminating the lease or extending the same for such period as the Court may deem proper has been passed as is contemplated by sub-section (2) of section 12, the landlord has been afforded a rather summary remedy to get the premises vacated by the tenant under sub-section (3) of section 12 of the Act. And, that summary remedy is by way of an application to the court which cannot take the place of a plaint. It was similarly held in the case of Satya Charan Goswami. V. Shyam Ishwar Gangu Mal Bhujwani 1972 BLJR 600 that the only purpose behind section 12 (3) appears to be that in the case of a tenant who gets advantage of section 12 (1) of the Act, the landlord may evict him under a summary proceeding instead of a suit. 5. Learned counsel for respondent no. V. Shyam Ishwar Gangu Mal Bhujwani 1972 BLJR 600 that the only purpose behind section 12 (3) appears to be that in the case of a tenant who gets advantage of section 12 (1) of the Act, the landlord may evict him under a summary proceeding instead of a suit. 5. Learned counsel for respondent no. 1 contended that since section 11 has been made subject to the provisions of section 12, therefore, in any case in which either of the grounds enumerated in section 11 (1) was attracted if a summary remedy had been provided in section 12 (3), there is no reason to hold why section 12(3) will not have precedence over the provisions of section 11 (1) (e). In my view, this contention cannot be held to be tenable for the simple reason that if this submission were accepted as correct in law, the whole provision of section 11 (1) (e) would be rendered otiose. And in view of the language of section 13 (3), as was contended by learned counsel for respondent no. 1, there will be no occasion for any landlord to get a decree in a duly constituted title suit on the ground mentioned in section 11 (1)(e). Learned counsel relied upon a Full Bench decision of this Court in the case of Digambar Narain Chaudhary V. Commissioner of Tirhut Division and others AIR 1959 Pat 1 FB for the purpose of contending that the combined effect of sections 11 and 12 of the Act, was that unless the period limited by the lease was extended in accordance with the provisions of section 12, the tenant was liable to be evicted on the expiry of the period of tenancy under section 11 (1) (b). Where, therefore, a tenant occupies a building by virtue of a lease for a fixed term and does not obtain extension of the time under section 12, he cannot legally resist the application of the landlord for his eviction on the expiry of the term of the tenancy. I am afraid, the decision in Digambar Narain Chaudhari’s case is not applicable to the facts of the present cases at all, for that was a case where the Full Bench of this Court was seized with the question as to the effect of holding over under section 116 of the Transfer of Property Act. I am afraid, the decision in Digambar Narain Chaudhari’s case is not applicable to the facts of the present cases at all, for that was a case where the Full Bench of this Court was seized with the question as to the effect of holding over under section 116 of the Transfer of Property Act. That was a case in which the notice to quit had been given by the landlord to the tenant during the period that the tenant was holding over and paying rent and it was held that merely because there was a statutory holding over and a statutory tenancy created under the provisions of the Transfer of Property Act, that could not amount to any unequivocal assent by the landlord to continue the tenancy from month to month. In that case the point for determination was not as to whether an application under section 12 (3) of the Act, would be maintainable even if no option was exercised and privilege enjoyed by a tenant under Sub-Sections (1) and (2) of section 12. 6. For the foregoing reasons, both these applications must succeed and the initiation of proceedings by virtue of Annexure 8' to each of the applications and the orders as incorporated in Annexure 3' to each of the applications must be held to be absolutely without jurisdiction and they are accordingly quashed, In the circumstances of the case, there will be no order as to costs. S. N. P. Singh, C. J. I agree Application allowed.