JUDGMENT

SARKARIA, J.:— This appeal by special leave raises a question with regard to the interpretation of Section 12 (3) (b) of the Bombay Rents, Hotel and Lodging House Rates Control Act No. LVII of 1947, which runs as follows :

"......... No decree for eviction shall be passed in any such suit if, on the first day of hearing of the suit or on or before such other date as the Court may fix, the tenant pays or tenders in Court the standard rent and permitted increases then due and thereafter continues to pay or tender in Court regularly such rent and permitted increases till the suit is finally decided and also pays costs of the suit as directed by the Court".

2. It is not disputed that the expression "suit" in the aforesaid clause (b) includes an "appeal". The principal question that falls for consideration is, whether the requirement of the latter part of the above-quoted Clause regarding payment or tender of rent and permitted increases, regularly, during the pendency of the suit appeal is mandatory or merely directory. In other words, whether in case of a monthly tenancy, the Court has a discretion to treat the payment or tender of rent made at intervals ranging from two to four months during the pendency of the suit/appeal as a regular payment or tender within the contemplation of Clause (b) of Section 12 (3) ?

3. Now the facts material to the consideration of this question may be set out.

The appellants herein filed a suit in the Court of Small Causes, Ahmedabad for possession of the suit premises and also for arrears of rent amounting to Rs. 528.33, together with future mesne profits and costs against the respondent.

4. The respondent resisted the suit on various grounds. The trial court dismissed the suit. It, however, fixed the standard rent of suit premises at Rs. 65/- p. m., including municipal taxes and further directed the defendant to pay the arrears of rent amounting to Rs. 498.33, up to the date of the suit.

5. Aggrieved by that decree, the land-lord preferred an appeal before the Appellate Bench of the Small Cause Court at Ahmedabad, which by its judgment dated January 7, 1977, dismissed the appeal and maintained the decree of the trial Judge. The landlord thereafter filed a writ petition in the High Court, which was summarily dismissed by an Order dated July 21, 1977.

6. Against that order of the High Court, the landlord has now come in special appeal under Article 136 of the Constitution, before us.

7. The uncontroverted facts found by the courts below are that the Civil Appeal No. 133 of 1973 before the Appellate Bench of the Court of Small Causes was filed on August 22, 1973. Thereafter, it remained pending there for about 40 months. During the pendency of this appeal (C. A. 133/73), the tenant-respondent did not pay the rent or the money equivalent to rent every month as it fell due. Nor did he make any payment in advance. He deposited the rent in Court 16 times at intervals ranging from 2 to 4 months. This will be apparent from the figures tabulated below :

Date of deposit Amount deposited Per Receipt No.

Rs.

26-9-73 195 10017

20-12-73 195 14120

22-2-74 130 18695

3-5-74 195 2398

11-7-74 130 5673

4-10-74 195 11005

11-2-74 130 15792

14-2-75 130 20618

13-6-75 260 3258

11-9-75 195 9673

9-12-75 195 15418

12-3-76 195 22764

15-6-76 195 3639

29-7-76 130 7683

11-11-76 130 14973

6-12-76 195 16690

There is no dispute that the rent was payable every month at the rate of Rs. 65/- per month. The last installment of rent was paid by the tenant after the conclusion of final arguments. The Appellate Bench whose judgment has been confirmed by the High Court, held that the defendant had substantially complied with the provisions of Section 12 (3) (b) notwithstanding the fact that he did not pay the rent every month as it fell due, but after intervals of 2, 3 or 4 months.

8. Following the Division Bench decision of the Gujarat High Court in Lal Chand v. Nanalal (Civil Application No. 522 of 1971), the High Court held that the term