NARAYAN PRASAD TULSIAN Vs. SHITAL PRASAD SAHA

JUDGEMENT

(1.) 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. 1 is the landlord thereof. 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 Sec. 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 kiraranama. After the expiry of the period fixed under the aforesaid kiravanuma, 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. 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 n each of the two cases was set down for ex parte hearing and after such ex parte 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 application while the final order directing the petitioner to be evicted in both the cases is corporated in Annexure 3.

(3.) The petitioner contends 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 has 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 undo section 12 (1) nor had the Court passed any order under section 12(2) of the Act, no section under section 12(3) could be initiated at the instance of the landlord. In my view, there is sufficient force in this contention put forwards 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 therefrom 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. 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 11 of the Transfer or Property Act. That position was not debated at the Bar in view of the Full Bench decision of the Court in the case of Niranjan Pal and another Vs. Chaitanyalal Ghosh and another, AIR 1964 Patna 401. This ordinary procedure for eviction of the tenant by the landlord by obaining 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.