An application for eviction under Sec.12(3) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, cannot be maintained without taking action under Sec.12(1) of the Act.

1. Both these Civil Revision Applications, which have been heard together and involve identical questions, are being disposed of herewith.

2. The relevant facts, briefly stated, are that the petitioner has got a building consisting of various shop rooms on Hospital Rd. in the town of Daltonganj. Two contiguous shop rooms of the above building were let out to the opposite party under two separate leases, each for a fixed period of 11 months beginning from the 1st July 1969 to 31st May 1970, on certain rents. Some time after the expiry of the period of the aforesaid leases, the petitioner filed two applications in the court of the Munsif, Daltonganj under Sec.12(3) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, for eviction of the opposite party from each of the two shop rooms. A claim for damages was also made, but we are not concerned with the same in these applications.

3. The opposite party filed objection and one of the points raised by him in both the cases was that the application was not maintainable, inasmuch as, in this case recourse to the provisions of Sec.12, Sub-Secs. (1) and (2) of the Act was not resorted to. Objections on various other grounds were also taken, but they are beside the point.

4. The opposite party then prayed in the trial court to decide the question of maintainability of the applications filed by the petitioner as a preliminary point and the learned Munsif by his orders dated 6-2-1973 held that the applications were maintainable. Against the orders of the Munsif aforesaid, the opposite party came to this Court and filed two Civil Revisions, one of them was dismissed in limine. The other application, however, was permitted to be withdrawn. Both the cases were thereafter fully heard by the trial court and the learned Munsif allowed the same and passed decrees for eviction of the opposite party from the premises in question, besides allowing the claim for damages in part.

5. The opposite party then filed appeals in the court of the learned District Judge, Palamau at Daltonganj. The learned District Judge heard both the appeals analogously and by the impugned judgement allowed both the appeals. The learned District Judge held that the applications filed by the petitioner under Sec.12(3) of the Act were not maintainable, inasmuch as, the tenant had not taken recourse to the provisions of Sub-Sections (1) and (2) of Sec.12 of the Act, as already indicated earlier. Reliance has been placed by the learned District Judge on a each decision of this Court in the case of Narayan Prasad Tulsian V/s. Shital Prasad Saha, 1975 0 BBCJ 750, in support of his view. The petitioner (landlord) has accordingly filed the present applications under S.115 of the Civil Procedure Code against the said judgement.

6. I have heard learned counsel for both the parties and find that the view taken by the Court of appeal below is amply borne out by the above Bench decision, where it has been firmly held that in absence of an action taken under Sec.12(1) of the Act, the landlord cannot take recourse to Sec.12(3) of the Act. It is not necessary to notice the reasonings of the judgement, nor its correctness was challenged before me by the learned counsel for the petitioner.

7. The learned counsel for the petitioner, however, contended that the preliminary point, having been decided by the trial court by its order dated 6-2-1973, it could not be raised by the opposite party at the succeeding stage of the same proceeding. He further contended that the said order could not be challenged more so as the civil revision applications filed by the opposite party in this Court were dismissed/withdrawn. In other words, it is contended that the order dated 6-2-1973 would operate as res judicata against the opposite party, and therefore, the court of appeal below could not interfere with the same. In support of his proposition, learned counsel placed reliance upon my own decision in the case of Dinbandhu Ghosh V/s.