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PETITIONER: KAMALA DEVI BUDHIA & ORS.

       Vs.

RESPONDENT: RAM PRABHA GANGULI & ORS.

DATE OF JUDGMENT02/05/1989

BENCH: SHARMA, L.M. (J) BENCH: SHARMA, L.M. (J) KANIA, M.H.

CITATION:  1989 AIR 1602            1989 SCR  (2) 970  1989 SCC  (3) 145        JT 1989 (3)    28  1989 SCALE  (1)1270

ACT:     Bihar Buildings (Lease, Rent and Eviction) Control  Act, 1947--Sections  2(b),  11  and 12--Extension  of  period  of lease--Eviction   of  tenant--Civil  Court--Whether   proper forum.     Constitution of India, 1950: Article 142--Court entitled to pass such decree/make any order as is necessary for doing complete justice in any case/matter.

HEADNOTE:     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 s. 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  s. 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 s. 12(1) from the  tenants,  the application of the appellants under s. 12 was not  maintain- able  before the Munsif and the entire proceedings was  mis- conceived.  The High Court pointed out that in  the  circum-

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stances the appropriate remedy of the appellants was to file a suit under s. 11 of the Act. 971     Before  this  Court it was contended on  behalf  of  the appellants that an application under s. 12 of the Act before the  Civil Court was maintainable, and that both  the  reme- dies. i.e., by an application under s. 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 s. 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 s. 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 s. 11 and exten- sion of period of lease under s. 12, the civil court is  the proper forum. It is the same court before which both a  suit under s. 11 and an application under s. 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 v. Hazari Mal Marwari, AIR 1929 Patna 141 and Hazari  Lal  v.  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  v. 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 v. The Chief Commissioner  (Admn.)  Manipur, [1977] 1 SCR 1022 referred to.     (5) If it is assumed that an application under s. 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  s. 12(3)  can arise only where the matter is covered by s.  12,

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and  as  an assumption has to be made in favour of  the  re- spondents  that s. 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 s. 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]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil 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  s. 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  s. 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.     2. 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.     3. Apart from pleading that the application under s.  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

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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. 1971. The court accordingly  directed  the respondents to vacate the premises.     4.  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 s. 12(3) of the Act  for  evicting the respondents if they  did  not  vacate within the time allowed by court.     5.  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 s. 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 s. 11 of the Act.     6.  Before  proceeding  further it will  be  helpful  to examine the provisions of the s. 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

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             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."     7.  It  has been contended on behalf of  the  appellants that an application under s. 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 s. 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 s. 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 s. 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 s. 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.     8.  It has to be kept in mind that it is the same  court before  which  both a suit under s. 11  and  an  application under  s.  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 s. 2(b) of the Act, and another ’Court  as the  court of general jurisdiction under the Code  of  Civil Procedure, 1908 as defined in s. 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 s. 11 and extension of  period

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of  lease under s. 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 s. 11 or making an application under s. 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 s. 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.     9.  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 s.  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 s. 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.     10. In Madho Bibi v. 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 s. 47, and the order  passed  by  the court  would  have the effect of a final order under  s.  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 v. Ramjiwan Ramchandra and others, AIR 1929 Patna

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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 s. 47 and  so the decision on it is appealable and a regular  suit is barred. In Lachhoo v. Munnilal Babu Lal, AIR 1935 Allaha- bad  183,  it was observed that in  considering  whether  an application  is under s. 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 v. The  Chief’  Commissioner (Admn.) Manipur and others, [1977] 1 SCR 1022, 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".     11. If it is assumed that an application under s. 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 s. 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  s.  12(3) can arise only where  the  matter  is covered  by  s.  12, and as we have made  an  assumption  in favour  of the respondents that s. 12 has no application  to the present case, there is no point in asking the appellants to file such an application. As mentioned in Art. 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. 979