In cases where there is a dispute regarding the standard rent, the provisions of Cl. (b) of S. 12(3) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, apply, and the tenant is protected from eviction if he pays or tenders the standard rent and permitted increases then due and thereafter continues to pay or tender such rent and permitted increases till the suit is finally decided.

Judgment

HIDAYATULLAH, J. : Jashwantrai Malukchand who appeals by special leave against the judgment of the High Court of Gujarat dated October 21, 1961 was a tenant of a shop belonging to Anandilal Bapalal respondent, by the judgment now under appeal the High Court reversed the concurrent decision of the two Courts below and ordered eviction of the appellant from the shop on the ground that he was in arrears for a period of six months in the payment of the rent. By a supplementary order dated January 16, 1962 mesne profits were also granted to the landlord till delivery of possession of the shop. The High Court has differed from the two Courts below in the application of the third sub-section of S.12 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, by which sub-section the present proceedings were governed. The High Court held that cl. (a) of the sub-section applied while the Courts below applied cl. (b). Before we read the section the facts necessary to understand this difference in the two points of view may be stated.

2. The tenant rented the shop from April 1, 1954 and executed a rent note for Rs. 155 p.m. From February 1, 1955 he did not pay the rent and when the landlord demanded it the tenant filed a suit for fixation of standard rent. During the pendency of those proceedings, the Court of Small Causes. Ahmedabad acting under S. 11 (3) of the Act (to which reference is necessary) fixed Rs. 80 p.m. as provisional standard rent and the tenant paid Rs.1,600 by instalments for the period for which he was then in arrears. On November 9, 1956 the Court passed a final order fixing Rs. 125 p.m. as the standard rent. Both sides filed revisions against that order in the District Court and they were dismissed after contest on March 25, 1958. It appears that the landlord filed a further revision in the High Court but it is not known from the record when and how it was dismissed. After the order was passed on November 9, 1956 the landlord demanded Rs. 1,385 as the balance of the rent due to him at the new rate till the end of January, 1957 and sent a registered notice but the tenant did not pay. On March 4, 1957 the landlord filed the suit from which this appeal arises contending that the tenant was in arrears for six months and had not paid the arrears within one month of the notice. This suit terminated in favour of the tenant on April 28, 1958 because by then the back rent calculated at Rs.125 p.m. and the costs of the suit were fully paid by the tenant. The landlord appealed to the Assistant Judge, Ahmedabad claiming that after the standard rent was fixed finally on November 9, 1956 the case fell to be governed by Cl. (a) of S. 12(3) of the Act and as the tenant was in arrears for a period of six months he ought to have been evicted. The appeal was not accepted. The Assistant Judge held that the tenant was protected by Cl. (b) of S. 12(3) of the Act. On revision before the High Court under S. 115 of the Code of Civil Procedure the decision was reversed as in the opinion of the High Court cl.(a) of the third sub-section applied to the facts of the case.

3. Section 12 of the Act, in so far as it is material, may now be read :

"12. (1) A landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays, or is ready and willing to pay, the amount of the standard rent and permitted increases, if any, and observes and performs the other conditions of the tenancy, in so far as they are consistent with the provisions of this Act.

(2) * *

(3) (a) Where the rent is payable by the month and there is no dispute regarding the amount of standard rent or permitted increases, if such rent or increases are in arrears for a period of six months or more and the tenant neglects to make payment thereof until the expiration of the period of one month after notice referred to in sub-section (2), the Court shall pass a decree for eviction in any such suit for recovery of possession.

(b) In any other