Judgment

SABYASACHI MUKHARJI, J.:- This is an appeal by the tenant. It arises out of an order of eviction passed by the Civil Judge, Thane and confirmed by the learned Assistant Judge of Thane on or about 24th July, 1976. The High Court of Bombay on or about 3rd November, 1981 dismissed an application under Article 227 of the Constitution challenging the said decision. Civil Suit No. 176 of 1974 was filed by the respondentlandlord against the appellants for possession of the building called Jamshed Villa at Thane. The ground floor of the building consists of one hall, two bed rooms, two side rooms and a kitchen. The said premises was let out to one Shri S. H. Kulkarni the deceased father of the appellants some years ago by the respondent on the rent of Rs. 50/- per month. The former owner, it is stated, terminated the tenancy of the appellants on 20th June, 1976, and the deceased Shri Kulkarni continued to occupy it as a statutory tenant. On the sale of the suit property the tenancy of Shri S. H. Kulkarni was duly attorned to the present plaintiff, Shri S. H. Kulkarni then expired. On 11th January, 1973 the respondents served the notice upon the appellants requiring them to vacate suit premises on various grounds. By the said notice the respondent also called upon the appellants to pay the arrears of rent for the period from 1st September, 1971 to 31st December, 1972 at the rate of Rs. 50/- per month. The total arrears came to Rs. 800/-. Indubitably, the amount claimed in this notice was not paid by the appellants to the respondent. The appellants replied to the notice. In that reply, several contentions were urged. It may be mentioned that the suit was filed on various grounds, namely, that the appellants have created a nuisance and they are irregular in paying the rent and further it was stated that the respondent required the suit premises reasonably and bona fide for his personal use and occupation. The learned trial Judge after framing the issues, on all issues held in favour of the tenant except the issue of the arrears of rent. The learned Trial Judge held that the appellants had failed and neglected to pay the arrears of rent within the statutory period in spite of the notice under Section 12(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter. called the Act). The Trial Court, however, on the question whether the appellants have raised a substantial plea that the rent is excessive, did not go into this aspect in view of the decision of this Court in Harbanslal Jagmohandas v. Prabhudas Shivial, (1976) 3 SCR 628. Accordingly, the trial Judge decreed the suit on the ground that the appellants are in arrears of rent. There was an appeal from the said decision of the Trial Judge to the learned Assistant Judge, Thane. The Learned Assistant Judge affirmed the order of the learned Trial Judge but reiterated that the tenant could claim protection from the operation of Section 12(3)(a) of the Act, only if the tenant had made an application within one month from the service of the notice under Section 12(2) of the Act terminating the tenancy wherein a dispute was raised regarding the standard rent. It is common ground that the appellants in this case did not make any application within one month from the service of the notice under Section 12(2) of the Act terminating the tenancy wherein a dispute was raised regarding the standard rent. The learned Assistant Judges, therefore, confirmed the order for eviction. The appellants moved to the Bombay High court. The Bombay High Court by the judgment under appeal on 3rd November, 1981 dismissed this application holding that neglect on the part of the appellants in making payment as mentioned in S. 12(3)(a) of the Act has to be decided on the facts of each case. The High Court reiterated that after considering all the facts and circumstances both the Courts below have rightly come to the conclusion that there was neglect on the part of the appellants with