KAMALA DEVI BUDHIA & ORS. versus RAM PRABHA GANGULI & ORS.

Citation: [1989] 2 S.C.R. 970 · Decided: 02-05-1989 · Supreme Court of India · Bench: M.H. KANIA, L.M. SHARMA · Disposal: Appeal(s) allowed

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Judgment (excerpt)

A 
KAMALA DEVI BUDHIA & ORS. 
v. 
RAM PRABHA GANGULI & ORS. 
MAY 2; 1989 
B 
[M.H. KANIA AND LAUT MOHAN SHARMA, JJ.] 
... 
::... 
Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947-'-' i 
Sections 2(b), JI and 12-Extension of period of lease-Eviction of" 
tenant-Civil Court-Whether proper forum. 
-
c 
Constitution of India, 1950: Anicle 142-Court entitled to pass 
such decree/make any order as is necessary for doing complete justice in 
any case/matter. 
~. 
The contesting respondents have been in occupation of the 
demised property under a registered lease for 20 years, which was to expire on 
D 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 
y 
Act, 1947. The respondents contested the application on the ground 
E 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 
F 
after the expiry of the lease period. The Judicial Commissioner dismis-
~ 
sed the respondents' appeal holding that the deed of lease was subsist· 
ing, the parties were having the relationship of lessors and lessees, and 
~ 
no month to month tenancy had been created. The Judicial Commis-
sioner further held that the appellants would have to make another 
application under s. 12(3) of the Act for evicting the respondents if they 
G 
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 circumstances the appropriate 
H remedy of the appellants was to file a suit under s. 11 of the Act. 
970 
-
) 
SMT. K.D. BUDHIA v. R.P. GANGULI 
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 main-
tainable, and that both the remedies. i.e., by an application under s. !2 
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 
A 
B 
c 
HELD: (I) 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 extension of period of lease under s. 12, the civil 
court is the proper forum. It is the same court before which both a suit 
D 
under s. 11 and an application under s. 12 are to be filed. [976C, DJ 
(2) The instant case was tried by the learned Munsif in the same 
manner as the trial of an eviction suit. The respondents filed a regular 
appeal before the District Judge, designated as Judicial Commissioner, 
and he also went through the entire controversy thoroughly. The judg-
ment of the High Court indicates that the scope in which the arguments 
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 whether 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 proc

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