Case ID: 6075

Judgment:
ivil Appeal No. 9979 of 1983. From the Judgment and Order dated 8.12.1982 of the Patna High Court in C.R. No. 377 of 1980 (R). M.P. Jha for the Appellants. D.P. Mukharjee for the Respondents. The Judgment of the Court was delivered by 973 SHARMA	 J. The dispute in the present appeal by special leave is in regard to certain premises in the town of Ranchi in Bihar which belongs to the appellants and in which a cinema is running. The contesting respondents have been occupying the property under a registered lease for a period of 20 years which expired on 31.7.1971. They served a notice on the appellants on 16.7.1971 claiming the right to contin ue in possession after 31.7.1971 as tenants from month to month. The appellants did not accept the claim and filed before Munsif	 Ranchi a case purporting to be an application under section 12 of the Bihar Buildings (Lease	 Rent and Evic tion) Control Act	 1947 (hereinafter referred to as the Act). The respondents contested the application and raised several points in defence which were rejected by the learned Munsif. The appellants ' application was allowed and an appeal therefrom filed by the respondents was dismissed by the Judicial Commissioner	 Ranchi. The respondents	 then	 moved the Patna High Court in its revisional jurisdiction	 inter alia	 contending that the appellants ' application under section 12 of the Act before the Munsif was not maintain able. The plea was accepted by the High Court and the deci sion of the court below was set aside. According to the appellants ' case the property earli er belonged to M/s Ganapathi Properties (Pvt.) Limited	 the predecessor in title of the appellants. The company had granted the lease in favour of one S.M. Ganguli who on his death was succeeded by his legal representatives. There was due attornment of the tenancy and the lessees were liable to vacate the premises on 31.7. 197 1. Their further case of induction of some of the respondents as sub tenants has been disbelieved and in view of the findings of fact in the case	 it is not necessary to deal with this aspect now. Apart from pleading that the application under section 12 was not maintainable and the allegations contained therein were incorrect	 the respondents also stated that the heirs of late S.N. Ganguli had formed a partnership	 as a result of which a new month to month tenancy was created	 and the respondents	 therefore	 were not liable to eviction. The parties differed on several questions of fact which	 in view of the findings of the trial court and the appellate court	 are not necessary to be detailed. The parties led full evidence	 both oral and documentary. on the disputed issues and after an elaborate trial the learned Munsif accepted the appellants ' case that they are the successors in interest of the lessor company	 and the legal representatives of late S.N. Ganguli the original lessee continued as tenants under the lease after due attornment and were liable to eviction after the expiry of the lease 974 period on 31.7. The court accordingly directed the respondents to vacate the premises. On appeal by the respondents	 the learned Judicial Commissioner	 Ranchi agreed with the findings of the learned Munsif on merits and concluded in paragraph 48 of the.judg ment thus: "Therefore	 from the facts stated above it appears that the present landlords and tenants are the heirs and successors of the original lessor and the lessee respectively. That being so	 according to the terms of the deed of lease (Ext. 4) 1 have no hesitation in saying that the deed of lease (Ext. 4) is subsisting and the parties are having the relationship of lessors and lessees and also landlords and tenants respectively. No month to month tenan cy had been created. " He	 however	 modified the decision of the trial court in so far the learned Munsif had directed that his order would be executed and the respondents would be evicted from the premises on their failure to vacate within the time allowed. The learned Judicial Commissioner confined his decision to deciding the issues between the parties and granting one month 's time to the respondents (appellants before him) for vacating the premises and further held that the appellants would have to make another application under section 12(3) of the Act for evicting the respondents if they did not vacate within the time allowed by court. The respondents challenged the decision in C.R. No. 377 of 1980 (R) before the Patna High Court. The learned Judge who heard the case held that in absence of a month 's notice under section 12(1) from the tenant	 the application of the appellants was not maintainable before the Munsif	 and the entire proceeding was mis conceived. It was pointed out that in the circumstances the appropriate remedy of the appellants was to file a suit under section 11 of the Act. Before proceeding further it will be helpful to examine the provisions of the section 12 which is quoted below: "12. Extension of period limited by lease. (1) If a tenant in possession of any building	 held on a lease for a specified period	 in tends to extend the period limited by such lease	 he may give the landlord at least one month before the expiry of the period limited by the lease	 a written notice of 975 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 thereby	 he may	 within fifty days of the delivery of such notice	 appeal to the court in that behalf and the Court after hearing the parties may termi nate the lease or extend the same for such period as it deems proper in the circum stances. 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 sub section (2)	 the Court shall	 on an application by the land lord	 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. It has been contended on behalf of the appellants that an application under section 12 of the Act before the civil court was maintainable and the High Court was in error in holding otherwise. The argument is that both the remedies	 i.e.	 by an application under section 12 of the Act as also by way of a suit are open to a landlord after the expiry of the period of a fixed term tenancy	 and it is for him to choose which course to follow. Mr. Kameshwar Prasad	 the learned counsel appearing on behalf of the respondents urged that on the expiry of such a tenancy the only remedy is to file a suit and in any event section 12 is wholly inapplicable in the facts of the case as the respondents	 by their notice	 did not seek an extension of the term of tenancy. He asserted that according to their case in the notice a fresh tenancy had come into 976 existence. The notice	 therefore	 was not one under section 12 of the Act at all. We do not consider it necessary to decide the question as to whether a landlord after the expiry of the period of a fixed term lease is entitled to move the Court by an application under section 12 of the Act because even on assuming the argument of the respondents to be correct the appellants should succeed. In view of the circumstances of the present case as discussed below	 the proceeding arising out of the appellant 's application before the learned Munsiff should be treated as a suit and his decision as a decree. It has to be kept in mind that it is the same court before which both a suit under section 11 and an application under section 12 are to be filed. The Bihar Buildings (Lease	 Rent and Eviction) Control Act refers to several authorities for decision of different issues	 one of them being Control ler as defined in section 2(b) of the Act	 and another 'Court as the court of general jurisdiction under the Code of Civil Procedure	 1908 as defined in section 2(bb). So far the determi nation and redetermination of fair rent	 or issuing appro priate directions relating to amenities in the premises and several other matters are concerned	 the power is vested in the Controller. But as regards the question of dealing with the eviction of tenants under section 11 and extension of period of lease under section 12	 the civil court is the proper forum. In the present case it is the Civil Court	 Ranchi which is the appropriate court either for filing a suit for eviction under section 11 or making an application under section 12. There is	 thus	 no difficulty so far the jurisdiction of the court is concerned. The question is whether the petition which was filed by the appellants as an application under section 12 should be treated as a plaint and the impugned proceeding as the one in a suit followed by an appeal and a second appeal. With the assistance of learned counsel for the par ties we have gone through the relevant papers in the case and are satisfied that both the parties dealt with every aspect of the case from their respective angles elaborately	 and led their full evidence both oral and documentary and the case was tried by the learned Munsif in the same manner as the trial of an eviction suit. The decision of the learned Munsif is also a detailed one considering every relevant question in the case. The respondents filed a regular appeal from the decision before the District Judge	 Ranchi	 designated as Judicial Commissioner	 and he also went into the entire controversy thoroughly. The respondents lost the case once more and moved the High Court but in civil revision application instead of second appeal	 presum ably because the Judicial Commissioner after deciding the disputed issues in favour of the present appellants instead of confirming the decree of 977 the Munsif directed them to file a fresh application under section 12(3) for a formal decree of eviction. The judgment of the High Court indicates that the scope in which the argu ments by the parties were addressed was the same as in a second appeal	 and the decision also was accordingly given. The findings on the disputed issues of fact between the parties were concurrently recorded against the tenants by the first two courts and it was not open to the High Court to reverse them under section 100	 C.P.C. We have also gone through the judgments of the first two courts on this aspect and considered the criticism of Mr. Kameshwar Prasad	 learned counsel for the respondents appearing before us	 and we do not find any error therein. In these circumstances	 it is wholly immaterial as to whether the application original ly filed by the appellants before the Munsif was not in the form of a plaint specially when the necessary verification was also there at the foot of the petition. The only differ ence may be as to the amounts of court fees payable by the appellants in the first court and by the respondents before the Judicial Commissioner and the High Court	 but that should not come in the way in construing the correct nature of the proceeding. A similar approach was adopted in several cases decided by some High Courts and we would like to refer to three decisions in this regard. In Madho Bibi vs Hazari Mal Marwari	 AIR 1929 Patna 141	 a suit was dismissed as against one of the defendants who in the proceeding of execution of the decree filed an objection to an attachment order under Order XXI	 Rule 58	 C.P.C. which was recorded under that Rule only. The court proceeded under that Rule and after making inquiries reject ed the claim. When a revision application was filed before the High Court	 it was held that the objection petition	 though wrongly preferred under Order XXI	 Rule 58	 must be treated as one under section 47	 and the order passed by the court would have the effect of a final order under section 47 which would be appealable as a decree and against which no revision would lie. In another decision by the same Court in Hazari Lal vs Ramjiwan Ramchandra and others	 AIR 1929 Patna 472	 the Division Bench held that a defendant against whom a suit is dismissed is nevertheless party to the suit	 and an objection petition though described by him as one Under Order XXI	 Rule 58	 C.P.C	 is such as would fall under section 47 and so the decision on it is appealable and a regular suit is barred. In Lachhoo vs Munnilal Babu Lal	 AIR 1935 Allaha bad 183	 it was observed that in considering whether an application is under section 47 or not	 the court must examine the substance of the application to find out its true nature and should not be guided solely by the heading given to it by a party. The principle is well established that the exercise of a power will be referable to a 978 jurisdiction which confers validity upon it and not to a jurisdiction under which it will be nugatory	 and there is no reason to exclude the application of this rule to judi cial proceedings. In a case dealing with compulsory retire ment this Court in M.R. Singh vs The Chief ' Commissioner (Admn.) Manipur and others; 	 	 observed that "if power can be traced to a valid power	 the fact that the power is purported to have been exercised under a non exist ing power does not invalidate the exercise of the power". If it is assumed that an application under section 12 of the Act is not maintainable in the facts and circumstances of the present case	 in our opinion	 the proceeding has to be treated as a suit and the judgment of the learned Munsif as a decree therein. A further question may arise as to the effect of the Judicial Commissioner	 Ranchi declining to pass a formal decree of eviction and directing the appel lants to make an application under section 12(3) of the Act for that purpose. Can this Court restore the decree of the trial court in absence of an appeal by the appellants before the High Court? We think that we can and we should. The question does not affect the substantive right of the parties as the controversy was concluded by the first appellate court in favour of the appellants. What was left was only procedural in nature and inconsistent with our decision to treat the proceedings as a suit. The occasion for filing an applica tion under section 12(3) can arise only where the matter is covered by section 12	 and as we have made an assumption in favour of the respondents that section 12 has no application to the present case	 there is no point in asking the appellants to file such an application. As mentioned in article 142 of the Constitution of India	 this Court may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it	 and the present case is a most appropriate one for exercise of such power. Accordingly	 we set aside the judgment of the High Court and restore the decree passed by the Munsif	 Ranchi. The re spondents are directed to restore peaceful possession of the premises in question to the appellants within one month from today	 failing which the appellants shall be entitled to execute the decree in accordance with law. The appeal is allowed	 but the parties are directed to bear their own costs throughout. R.S.S. Appeal allowed.

Summary:
The contesting respondents have been in occupation of the demised property under a registered lease for 20 years	 which was to expire on 31.7.1971. They served a notice on the appellants on 16.7.1971 claiming the right to continue in possession after 31.7.1971 as tenants from month to month. The appellants did not accept the respondents ' claim and filed before the Munsif a case purporting to be an application under section 12 of the Bihar Buildings (Lease	 Rent and Eviction) Control Act	 1947. The respondents con tested the application on the ground that as heirs of the original lessee	 they had formed a partnership as a result of which a new month to month tenancy had been created. They further contended that the appellants ' application before the Munsif under section 12 was not maintainable. The Munsif accepted the appellants ' case that the legal representatives of the original lessee continued as tenants under the lease after the attornment and were liable to eviction after the expiry of the lease period. The Judicial Commissioner dis missed the respondents ' appeal holding that the deed of lease was subsisting	 the parties were having the relation ship of lessors and lessees	 and no month to month tenancy had been created. The Judicial Commissioner further held that the appellants would have to make another application under section 12(3) of the Act for evicting the respondents if they did not vacate within the time allowed by court. The High Court	 in its revisional jurisdiction	 set aside the decisions of the courts below and held that in the absence of a month 's notice under section 12(1) from the tenants	 the application of the appellants under section 12 was not maintain able before the Munsif and the entire proceedings was mis conceived. The High Court pointed out that in the circum stances the appropriate remedy of the appellants was to file a suit under section 11 of the Act. 971 Before this Court it was contended on behalf of the appellants that an application under section 12 of the Act before the Civil Court was maintainable	 and that both the reme dies. i.e.	 by an application under section 12 of the Act as also by way of a suit were open to a landlord after the expiry of the period of a fixed term tenancy	 and it was for him to choose which course to follow. On behalf of the respondents it was contended that on the expiry of such a tenancy the only remedy was to file a suit	 and in any event section 12 was wholly inapplicable as	 according to their case in the notice	 a fresh tenancy had come into existence	 and as such their notice was not one under section 12 of the Act at all. Allowing the appeal	 this Court HELD: (1) The Act refers to several authorities for decision of different issues. As regards the question of dealing. with the eviction of tenants under section 11 and exten sion of period of lease under section 12	 the civil court is the proper forum. It is the same court before which both a suit under section 11 and an application under section 12 are to be filed. [976C	 D] (2) The instant case was tried by the learned Munsif in the same manner as the trial of an eviction suit. The re spondents filed a regular appeal before the District Judge	 designated as Judicial Commissioner	 and he also went through the entire controversy thoroughly. The judgment of the High Court indicates that the scope in which the argu ments by the parties were addressed was the same as in a second appeal	 and the decision also was accordingly given. In these circumstances	 it is wholly immaterial as to wheth er the application originally filed by the appellants before the Munsif was not in the form of a plaint	 specially when the necessary verification was also there at the foot of the petition. The only difference may be as to the amount of court fee payable by the parties	 but that should not come in the way of construing the correct nature of the proceed ings. [976G H; 977C D] Madho Bibi vs Hazari Mal Marwari	 AIR 1929 Patna 141 and Hazari Lal vs Ramjiwan Ramchandra	 AIR 1929 Patna 472	 referred tO. (3) The court must examine the substance of the applica tion to find out its true nature and should not be guided solely by the heading given to it by a party. [977G H] 972 Lachhoo vs Munnilal Babu Lal	 AIR 1935 All. 183	 referred to. (4) The principle is well established that the exercise of a power will be referable to a jurisdiction which confers validity upon it and not to a jurisdiction under which it will be nugatory	 and there is no reason to exclude the application of this rule to judical proceedings. [977H; 978A] R.P. Singh vs The Chief Commissioner (Admn.) Manipur	 ; referred to. (5) If it is assumed that an application under section 12 of the Act is not maintainable in the facts and circumstances of the present case	 the proceeding has to be treated as a suit and the judgment of the learned Munsifas a decree therein. [978C] (6) The occasion for filing an application under section 12(3) can arise only where the matter is covered by section 12	 and as an assumption has to be made in favour of the re spondents that section 12 has no application	 there is no point in asking the appellants to file such an application. [978E] (7) This Court can and should restore the decree of the trial court even in the absence of an appeal by the appel lants before the High Court against the order of the Judi cial Commissoner declining to pass a formal decree of evic tion and directing the appellants to make an application under section 12(3) of the Act for that purpose. As mentioned in Article 142 of the Constitution	 this Court may pass such decree or make such order as is necessary for doing complete justice in any case or matter pending before it	 and the instant case is a most appropriate one for exercise of such power. [978D F]