The provisions of section 12(3)(b) of the Rent Act cannot be used by the landlord for getting a decree in a suit instituted under section 13 of the Act.

JUDGMENT - C.S. DHARMADHIKARI, J.:---The petitioner landlady is the owner of the building bearing House No. 138 /B, Narayan Peth, Pune. The deceased Sumanchand was the tenant of two rooms on the first floor of this building and the rent payable was Rs. 37.02 paise. The plaintiff-landlady filed a suit against original defendant-tenant on 15th January, 1974 on the ground that the defendant was in arrears of rent for more than six months and had neglected to make payment thereof within one month after the receipt of the notice under section 12(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the Rent Act). Thus it was the case of the plaintiff that she was entitled to a decree under section 12(3)(a) of the Rent Act. She also sought eviction of the tenant on the ground that she reasonable and bona fide required the suit premises for the occupation for her family members. Thus she claimed possession of the premises under section 13(1)(g) of the Rent Act. She had also contended that she is entitled to a decree under section 13(1)(c) on the ground of nuisance and annoyance. The defendant denied all the allegations and contended that he had paid all the arrears within a period of one month after the receipt of the notice. It was contended by him that he had paid more than what was due. He also denied the allegations made on other counts. The trial Court dismissed the suit, and therefore, the landlady filed an appeal. At the appellate stage by an amendment the fourth ground came to be added i.e. that the tenant has acquired the vacant possession of a suitable residence, and therefore, she is also entitled to a decree under section 13(1)(i) of the Rent Act. This amendment application was allowed and the matter was remanded back to the trial Court. The defendant-tenant denied the allegation that he has acquired vacant possession of an alternate suitable residence. After remand also the parties adduced evidence in support of their rival contentions. After appreciating all the evidence on record the learned Judge of the Small Causes Court, Pune came to the conclusion that the defendant was not a defaulter and therefore, the plaintiff was not entitled to a decree under section 12(3)(a) of the Act. The trial Judge also found that the plaintiff has failed to prove that the suit premises were reasonably and bona fide required by her or members of her family. A finding was also recorded that the plaintiff failed to prove that the defendant was guilty of any conduct which amounted to nuisance or annoyance. However, the trial Court came to the conclusion that the plaintiff has proved that the defendant has after the enforcement of Rent Act has acquired suitable premises for his residence, and therefore, the plaintiff was entitled to a decree on that count. Being aggrieved by the said judgment and decree the defendant-tenant filed an appeal before the District Court. It appears that at the appellate stage out of the four grounds on which possession was claimed, the ground of reasonable and bona fide requirement of suit premises for her own use or for the use of her family members was not passed. However, the plaintiff challenged the adverse findings recorded by the trial Court on the grounds of default of payment of arrears of rent and nuisance or annoyance. Apart from raising these additional contentions the plaintiff also supported the trial Court's finding that the defendant had acquired the vacant possession of the suitable residence, after coming into force of operation of the Rent Act. The Appeal Court after appreciating all the evidence on record negative these contentions and allowed the appeal filed by the tenant. Against this appellate judgment and decree the present writ petition is filed by the plaintiff-landlady under Article 227 of the Constitution of India.

2. Shri Panse the learned Counsel appearing for the petitioner-landlady contended before me that even assu

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