Judgment

B.P. JEEVAN REDDY, J.

(1) THIS appeal is preferred by the tenant against the judgment and order of the learned Single Judge of the Bombay High court allowing the writ petition filed by the respondent-landlady. The eviction petition filed by the landlady was dismissed by both the courts below but on a writ petition filed by her it was allowed by the High court. The matter arises under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as "Bombay Rent Act").

(2) THE appellant is the tenant of Flat No. 2, F Building, Vijay Colony, Juhu Lane, Andheri (West), Bombay on a monthly rent of Rs. 100.00 exclusive of water charges, education cess and charges for amenities. The appellant had advanced a sum of rs 10,000.00 by way of construction loan to the original landlord. The said loan and the terms of repayment are recorded in a registered agreement dated 15/12/1962. According to the agreement, the landlord agreed to adjust Rs. 65.00 per month out of the rent payable towards the loan. The tenant was to pay the balance Rs. 35.00 in cash. The respondent purchased the flat on 7/01/1963, subject to the said agreement.

(3) ON 10/04/1965 the respondent-landlady filed a suit No. 668 of 1965 for eviction of the appellant on the ground of subletting and her own bona fide requirement. The suit was decreed on 30/08/1971 on the ground of subletting alone. The appellant filed an appeal on 15/10/1971 which was allowed on 12/07/1973.

(4) SOON after the decree of the trial court in the aforesaid suit, the landlady issued a notice terminating the tenancy for non-payment of permissible increases for the period 1/03/1969 to Marc 29/03/1972 in a sum of Rs. 2483.94p. On 3/03/1972 she filed the suit for evicting the tenant and for recovery of the said permissible increases. It is this suit we are concerned with in this appeal. Sometime in early 1975, the landlady applied for expediting the hearing of the suit. On 4/04/1975 the trial court passed an order directing the tenant to deposit the entire amount due till then on account of permissible increases within six weeks of the said order. In default, it was stated, the court will consider the request for expeditious trial of the suit. The order further directed that the tenant should continue to deposit the said charges every month. The appellant did not deposit either the arrears or the monthly rent for the period subsequent to the order. On 4/06/1976 the appellant filed an application seeking extension of time to deposit the amount which he was asked to deposit under the order dated 4/04/1975 and for the period subsequent to the said order. He was permitted to do so on June 8 and on the same day, he deposited a sum of Rs. 2082.75p representing the total amount due till that date. The appellant says further that on 8/03/1979 he also deposited the amount which was not claimed in the suit on the ground that it was barred by time. In other words, even the amount which was not recoverable in law was also deposited by him. The issues were framed in the suit on 4/04/1972.

(5) EVEN subsequent to the order dated 4/06/1976 the appellant was not regular in depositing the amounts. It is recorded in the order of the High court that he deposited a sum of Rs. 143.70p on 15/11/1976, a sum of Rs. 71.85p on 7/01/1977 and a sum of Rs. 23.94p on 9/02/1977. (The permissible charges payable by the appellant per month were determined in a separate proceeding at Rs. 23.94p.) Subsequently, he deposited the said amounts on 1/06/19 7/08/1977 and 3/11/1977. All these deposits were no doubt made with the permission of the court.

(6) BY its judgment and decree dated 29/09/1977, the trial court dismissed the suit. The court found that the case was governed by clause (b) of Ss. (3 of Section 12 of the Bombay Rent Act and not by clause (a) of the Act. Inasmuch as the appellant has deposited the entire amount due as contemplated by th