JUDGMENT

MOHAN, J. :- The brief facts leading to this appeal are as under :-

The appellant is the owner of a bungalow situated at Mundhva Road, Ghorpadi, Poona On 10-11-57, the first appellant and his wife Banoobai (since deceased ) leased out the said premises to respondent No.1 under a rent not on a monthly rent of Rs.130/-.

2. The first respondent fell into arrears of rent for the period commencing from 1-8-63 to 31-3-64. By notice dated 22-4-64, the appellant No.1 and his wife terminated the tenancy of the first respondent and demanded arrears of rent under S.20(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the Act).

3. On the expiry of the period of notice, the appellant and his wife filed a Suit No.2267/64 for possession of the premises under S.12(3)(a) of the Act. The respondent tenant contested the suit. He also raised the question of standard rent and claimed for fixation of standard rent. The learned trial Judge by his order dated 26-7-65 fixed standard rent at Rs. 130/- per month and decreed the suit. On appeal by the respondent, the same was allowed by the learned District Judge by his order dated 16-4-66. Thereupon Special Civil Application No.46 of 1967 was preferred in the High Court. That was dismissed on 6-10-70.

4. On 3-10-66, the wife of the first appellant, Banoobai, died The first appellant in his capacity of co-owner as also the heir of his wife together with her other heirs, served a notice dated 2-5-67 calling upon the first respondent to pay arrears of rent for the period commencing from 1-11-66 to 30-4-67 within a month. The first respondent did not pay the said arrears. That necessitated the appellant to file the present suit for possession and for recovery of arrears of rent. In the said suit, the legal representatives of the deceased-Banoobai were made pro forma defendants Nos. 2 to 5. On 8-6-67, they released all their rights, title and interest in favour of appellant No.1.

5. Pending suit, an application for amendment was taken out raising the tone of nuisance against the first respondent. The trial court decided both suits and standard rent application by its order dated 29-9-73 and held that the standard rent of the premises was Rs. 130/- per month. The suit was decreed in favour of the appellant under S.12(3)(a) and (b) of the Act. The first respondent preferred an appeal which was dismissed. Thereafter he preferred two Special Civil Applications- one against the decree for possession and the other against the standard rent application. The learned single Judge of the High Court heard both the matters together and dismissed the suits as not maintainable. It is under these circumstances, the present civil appeal has come before this court.

6. Mr V.M.Tarkunde, learned counsel for the appellant argues that first and foremost the point of arrears of rent in the hands of transferee becomes a debt, is not taken either in written statement filed by the respondents nor any issue was framed. Such a point cannot be decided under Art. 227.

7. The first appellant is a co-owner and is entitled to give notice. Such a notice is valid as laid down in Sri Ram Pasricha v. Jagannath, (1977) 1 SCR 395 and Subhendu Prosad Roy Choudhury v. Kamala Bala Roy Choudhury, (1978) 2 SCC 89. Even otherwise as collector of Rent, he is entitled to issue notice. The notice is not challenged on the ground that more rent is demanded or rent of six months was not due.

8. Section 12(3)(a) of Rent Act operates on a different footing and applies only in following case :-

(i) When the arrears of rent are more than 6 months;

(ii) Rent is payable by month of month;

(iii) Notice served on the tenant;

(iv) No dispute regarding standard rent.

9. In other cases, Sec.12(3)(b) is applicable. The cases covered thereunder are for arrears of rent of less than six months.

10. In opposition to this, learned counsel for the respondent Mr. E.C.Agrawala argues that the notice dated 2-5-67 was not valid. Firstl