JUDGMENT
Bhimrao N. Naik, J.
1. This is a petition filed under Article 227 of the Constitution which seeks to challenge the judgment and decree passed by the learned Asstt. Judge, Satara on 5th July, 1982 in Regular Civil Appeal No. 196 of 1980, on the ground of non-payment of rent.
2. Before touching the various points urged, it would be quite necessary to refer to few facts which are undisputed. The petitioner was tenant of shop premises situated at Satara admeasuring about 4 khans and initially rent was Rs. 15/- per month. In the year 1952 rent was increased to Rs. 20/- per month. Regular Civil Suit No. 57 of 1959 was filed by the respondent-landlord against petitioner for his eviction. The said suit ended in a compromise and the petitioner agreed to surrender two khans of the shop premises and retained the remaining two khans of the shop premises agreeing to pay Rs. 20/- per month. On 6th September, 1971 notice of demand was issued to the petitioner-tenant and arrears were claimed from 1st May, 1971. Thereafter, Regular Civil Suit No. 331 of 1971 was filed on 6th October, 1971. However, this suit was withdrawn on 2nd July, 1973 with permission to file fresh suit. The petitioner-tenant on 1st September, 1973 filed Misc. Application No. 41 of 1973 under section 11(1) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. On 4th April, 1974, notice of demand as contemplated under section 12(2) of the Rent Act was given and arrears were claimed from 1st May, 1971 to 30th April, 1974. On 4th July, 1974, an application was filed by the tenant in Misc. Application No. 41 of 1973 for fixation of an interim rent. On 2nd September, 1974 the Court passed the following order:
“Heard the pleader for the applicant. The pleader for the opponent absent. Interim rent of the suit premises is fixed at Rs. 10/- p.m. The applicant shall deposit all arrears, if any, upto date within 15 days from to-day and shall go on depositing further rent as and when accrues on or before 10th of each month.”
3. Thereafter, on 2nd September, 1974, Regular Civil Suit No. 313 of 1974 was filed for possession on the ground of non-payment of rent and on the ground of bona fide requirements. On 11th September, 1974 tenant deposited Rs. 410/-, on 14th October, 1974 tenant deposited Rs. 10/-, and on 13th December, 1974 tenant deposited Rs. 20/-. On 6th February, 1975 issues were framed. The tenant made following payments subsequently: (1) On 6th December, 1976- Rs. 55/-, (2) On 10th June, 1976- Rs. 209/-, (3) On 4th April , 1977-Rs. 44/- , (4) on 24th July, 1978-Rs. 187/- (5) on 5th February, 1979-Rs. 88/- (6) on 8th November, 1979-Rs. 55/-, (7) on 16th July, 1979-Rs. 55 and (8) On 24th June, 1980-Rs. 50/-. Thus, including the earlier deposits made by the tenant, in all he deposited a sum of Rs. 1181/.
4. The learned Civil Judge, Junior Division who heard and tried the Regular Civil Suit No. 313 of 1974 inter alia fixed the standard rent of the suit premises at Rs. 15/- per month inclusive of all the taxes and held that the case is covered by section 12(3)(b) and since the tenant has complied with the requirements of section 12(3)(b), it will have to be held that tenant is ready and willing to pay the rent and thus he dismissed the suit of the plaintiff by his judgment and order dated 27th June, 1980.
5. Being aggrieved and dissatisfied by the aforesaid order, respondent-landlords filed Regular Civil Appeal No. 196 of 1980 against dismissal of their suit and they also filed Revision Application No. 8 of 1980 challenging the order of fixation of standard rent at the rate of Rs. 15/- per month. Both Revision Application and the Regular Civil Appeal were heard. The Appellate Court held that case is covered by section 12(3)(b) however, the tenant failed to comply with requirements of section 12(3)(b) viz., that the tenant failed to pay or tender in the Court standard rent and permitted increases that were due and thereafter he failed to pay or tender in the Court regularly such rent and permitted increases as contemplated under section 12(3)(b) and for non-compliance of section 12(3)(b) the Appellate Court allowed the Appeal by its judgment and order dated 5th July, 1982. By the same judgment the Court rejected the Revision Application and confirmed the finding recorded by the trial Court regarding fixation of standard rent at the rate of Rs. 15/- per month.
6. Being aggrieved and dissatisfied by the aforesaid order, the petitioners have filed the present writ petition under Article 227 of the Constitution of India. Shri Rane, learned Counsel appearing for petitioners points out that the tenant has complied with the requirement of section 12(3)(b). He pointed out that an error is committed by the Appellate Court in not taking into consideration the deposit of Rs. 300/- made by the tenant in Revision Application filed by the landlord on 30th September, 1980. It appears from the record that the landlord filed Appeal on 28th July, 1980 and the Revision Application was field on 30th September, 1980. Before depositing sum of Rs. 300/-, the tenant filed an application in the District Court in Revision Application Exhibit 10 in which he stated that he has deposited sum of Rs. 300/- towards the rent and the Court should accept the same and Nazir should be directed to accept to accept the same. It was further stated in the application that as per order passed by the trial Court, entire amount is deposited and whatever order this Court may pass, he is ready and willing to deposit the same. On this application the landlord gave his say and he pointed out that he has no objection to the deposit of the amount. According to Shri Rane, since tenant deposited sum of Rs. 300/- on his own, and he requested the Court to pass further order and the Court having not passed any order on the said application, he was not bound to deposit any amount thereafter and, therefore, it cannot be said that tenant has not complied with the requirement of section 12(3)(b) during the continuance of the Appeal. Shri Rane also finds fault with the reasoning of the Appellate Court that the amounts were not deposited in the trial Court regularly. He relies upon the decision in the matter of Moreshwar Narayan Bhadke v. Shashikant Balakrishna Malkar, delivered by Pendse, J., and points out that if an application is one under section 11(3) then tenant is under obligation to make the payments and since in the present case the application filed by the tenant was on under section 11(1), merely not complying with the order of that Court will not warrant a decree for possession and from that it cannot be inferred that the tenant is not ready and willing to pay. Shri Rane then submitted that in any event entire amount is paid by 28th June, 1982 which is two or three days before the final judgment by the Appellate Court and hence no decree can be passed.
7. Shri Walawalkar, learned Counsel appearing for respondents refuted the arguments of Shri Rane and pointed out that the trial Court was in error in not holding that tenant has not complied with the requirement of section 12(3)(b), though the trial Court in the standard rent application had passed specific order, there is total non-compliance of the said order and if the order is not complied with then the Court is not left with any discretion than to pass decree for possession. He heavily relies upon the decision of the Court , Sd. Umar Sd. Ahmed v. Dadamiya Husenbhai & others, and points out that in any event the standard rent was fixed by the trial Court at Rs. 15/- per month. Tenant was not aggrieved by the fixation of the standard rent, he had not filed any revision application challenging the same, in such circumstances the tenant was under obligation to comply with the trial Court’s decree on the point of standard rent and pay regularly during the pendency of the matter in the higher Court and since he has not complied with that in the Appeal Court, decree under section 12(3)(b) will have to be passed and it was rightly passed by the Appellate Court. He also relies upon the ruling reported in 1978 Mh.L.J. (S.C.) 550 Ganpat Ladha v. Shashikant Vishnu Shinde, and he points out that if the tenant fails to comply with the conditions of section 12(3)(b), he cannot claim the protection of the same. Section 12(3)(b) does not create any discretionary jurisdiction in the Court, it provides protection to the tenant on certain conditions and those conditions have to be strictly observed by the tenant who seeks benefit of the section.
8. Mr. Rane had relied upon decision , Mohan Laxman Hede v. Noormohamed Adam Shaikh, and he pointed out that word regularly appearing in section 12(3)(b) does not mean the deposits are required to be made with clock-wise procedure. It is enough if the tenant deposits the rent with reasonable punctuality. This is refuted by Shri Walawalkar, he points out that if one goes through the chart one finds that even with reasonable punctuality the amounts were not deposited in the trial Court and, therefore, decree passed is justified.
9. After hearing rival contentions of the parties, I am inclined to accept the submission of Shri Walawalkar and reject the submissions of Shri Rane and my reasons are as follows.
10. It is undisputed in this matter that an application for fixation of standard rent was filed under section 11(1). Tenant on his own made an application for deposit of the amount, called upon the Court to fix interim rent. Accordingly, Court fixed interim rent and admittedly the tenant failed to comply with the said order. Assuming Pendse, J.’s judgment in in the matter of Moreshwar Narayan Bhadke v. Shashikant Balakrishna Malkar, (supra) lays the correct proposition of law, but that case is distinguishable on the point that in that matter there was no dispute and the tenant had complied with the requirement of section 12(3)(b) and the tenant had filed an application in the suit for eviction filed by the landlord and sought direction by depositing entire arrears and tenant accordingly had cleared of all the arrears but before Pendse, J., the District Court took the view that the standard rent application was not filed under section 11(3) of the Rent Act within a period of one month from the date of receipt of the notice and thus he was not entitled for protection of section 12(3)(b). Facts which arise in our matter are quite different. In our case, the tenant on his own had made an application and called upon the Court to pass an order. The Court did pass an order which is reproduced above and admittedly tenant failed to comply with the said order. Thus without going into the question regarding payment being made regularly or otherwise, it can be held that tenant failed to comply with the order passed by the Court regarding deposit of rent and hence the conditions which were required to be fulfilled under section 12(3)(b) were not complied with.
11. Assuming that Mr. Rane’s contention was right and if I were to accept that the application was not filed under section 11(3), nevertheless the case would be governed by section 12(3)(b) because much before the filing of the suit and before issuance of notice of demand, the tenant had already filed an application for fixation of standard rent. The tenant on his own showing had not regularly deposited the amount in view of the law laid down by Supreme Court in , Mohan Laxman Hede v. Noormohamed Adam Shaikh, and thus he loses the protection under section 12(3)(b).
12. Even if I were to assume that before trial Judge, the tenant complied with requirements of section 12(3)(b), and therefore, suit was rightly dismissed by the trial Court, still in view of decision in the matter of Sd. Umar Sd. Ahmed v. Dadamiya Husenbhai & others, (supra), the tenant was under obligation to comply with trial Court’s decree on the point of standard rent and pay regularly during the pendency of the matter in the higher Court. In the present matter the landlord filed appeal on 28th July, 1980 and he filed application for fixation of standard rent on 30th September, 1980. All that the tenant did was to make an application Exhibit 10 contents of which have been referred by me above. He deposited only Rs. 300/-. He was short by Rs. 145/-, the amount due and payable as on that date as per the decree passed by the trial Court and thereafter almost for a period of two years upto 28th June, 1982, the tenant did not deposit any amount and it is just few days before the judgment was delivered by the Extra Asstt. Judge, the tenant on 28th June, 1982 deposited sum of Rs. 900/-. One cannot loose sight of the fact of total non-deposit from 30th September, 1980 till 28th June, 1982 and this conduct on the part of the tenant cannot be ignored. It will have to be taken into consideration. The only answer which Mr. Rane has for this difficulty is that he called upon the Court by application Exhibit 10 to specify the amount and since Court did not specify amount, he did not make the payment. According to me there is no justification for such a contention. The standard rent was already fixed, it was determined, it was not even challenged by the tenant by filing revision application. Revision Application was filed by the landlord and thus he was under obligation to continue to deposit the said amount till the disposal of the appeal. He having not done this, he has not compled with requirement of section 12(3)(b) and thus since there is total failure of fulfilling the conditions of section 12(3)(b), as per the law laid down in 1978 Mh.L.J. 550 in Ganpat Ladha v. Sashikant Vishnu Shinde, the Court is not left with any discretion but to pass decree for possession and according to me and in my opinion the decree is rightly passed by the Appellate Court and no interference under Article 227 of the Constitution is called for. In view of this, I see no substance in this petition. Petition dismissed, rule discharged. However, in the facts and circumstances of the case, there shall be no order as to costs.
13. Mr. Rane applies for time to approach the higher Court. In order to enable the petitioner to approach the higher Court, I grant him three months time on the condition that he alone will continue to remain in possession of the suit premises and he shall not create any third party interest.
Certified copy expedited.