JUDGMENT - CHANDRACHUD D.Y. (Dr.), J.: - Rule, returnable forthwith. Respondents waive service. By consent taken up for hearing and final disposal.

2. In a suit for eviction instituted on the ground of a default in the payment of rent, the Additional District Judge, Kalyan by the impugned order dated 21st June, 2003 allowed an appeal against the judgement of the trial Court, decreeing the suit. The Additional District Judge has come to the conclusion that the judgement and decree of the trial Court has to be set aside and that the suit must accordingly stand dismissed. The landlord is in appeal against the judgement of the Appellate Court.

3. The suit for eviction in the present case was instituted in respect of commercial property bearing House No. 54, also known as "Yashwant Building" situated at Lane No. 36 at Kalyan. The respondent is a tenant occupying one shop in the suit premises wherein he carries on the business of dealing in automobile spare parts. The agreement of tenancy was entered into between the parties on 20th September, 1975. According to the landlord, the respondent-tenant stopped paying the monthly rent of Rs. 82.70 upon which a notice of termination came to be issued on 10th December, 1982 claiming that the respondent was in arrears of rent for the period from May to November 1982. The suit was decreed by the Joint Civil Judge, Junior Division, Kalyan on 25th August, 1986. Against the order of the trial Judge, an appeal came to be preferred before the Additional District Judge which was also dismissed on 15th June, 1989. A writ petition was then filed before this Court by the tenant in which on 20th November, 2002 an order of remand was passed by S.A. Bobde, J. In pursuance of that order, the Additional District Judge heard the parties afresh upon which the appeal was allowed by the impugned order dated 21st June, 2003.

4. The petition lies in a narrow compass. Hence, when notice was issued on 29th September, 2003, parties were specifically informed that the petition would be heard and finally disposed of at the stage of admission. Parties have been heard on that basis and arguments have been addressed by both learned Counsel for final disposal of the petition.

5. There is no dispute about the fact that upon receipt of the notice dated 10th December, 1982, terminating the tenancy and demanding the arrears of rent, the tenant neither deposited the arrears within a period of one month, nor for that matter, did he prefer an application for fixation of standard rent as required by the provisions of section 12(3)(a) and 12(3)(b) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 as they then stood prior to the amendment of 1987. The defence of the tenant was that the rent has been paid, but that no receipts had been passed. On this defence, learned Counsel for the tenant states that the concurrent finding is against him. Hence, Learned Counsel has fairly not pressed that issue. The only defence which has found acceptance in the impugned order of the Additional District Judge and which has been urged in these proceedings, is that there was an agreement that was entered into between the parties on 20th September, 1975, which was exhibited and marked as Exh. 28. The agreement recites that the landlord has started construction of a building and that he has agreed to give a shop, but records that the tenant had agreed to pay Rs. 10,000/- as a loan for construction of the building. Clause 7 of the agreement recited that the tenant shall begin paying rent after one year of receiving possession. The mode of payment of rent was that the tenant would pay 50% of the rent while the balance would be adjusted towards repayment of the loan.

6. On these facts, the question which arose before the courts below was as to whether this would furnish a valid defence to the termination of the tenancy and to the suit for eviction on the ground of arrears. The question which has been raised in these proceedings is not

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