V. MOHTA ANOOP, J.

( 1 ) THE petitioner-landlord has invoked Article 227 of the Constitution of India and sought to challenge the impugned judgment and order dated 11 /1 /1993, passed by the Additional District Judge, Kolhapur, (appellate court), whereby, the Judgment and decree passed by the II Jt. Civil judge, J. D. , Kolhapur, (trial Court) dated 7/3/1987, was set aside and the matter has been remanded to the trial Court for a fresh trial.

( 2 ) HEARD the learned Counsel for the parties. The bone of contention in the present matter is revolving around the issue, about fixation of standard rent, as contemplated under section 11 (3) r/w section 12 (a) and (b) of the bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (for short bombay Rent Act ).

( 3 ) THE main ground for the suit of eviction was irregular payment. The trial Court, after considering the merits of the matter accepted the case of the landlord. The trial Court, had considered the following observation of the judgments of the Bombay High Court in 1986 Bom. R. C. 316 (Danilal v. Lalji thakkar)1.

"the empty formality of moving an application for determination of standard rent within one month of the receipt of the demand notice under section 12 (2) is not enough. If the Court was under an obligation to forthwith specify the amount payable by the tenant, it could do so, only if it was moved by the tenant. As said earlier, there is no evidence to show that the tenant was in hurry to get the order contemplated by Section 12 (3) of the Act. The result is that he was disentitled to the protection under Sec. 12 (3) (b) of the Act. This case falls under Section 12 (3) (a ). "

( 4 ) THE learned Counsel appearing for the landlord has also relied on the judgment reported in 1997 (2) Bom. C. R. 472 : 1997 (1) Mh. L. J. 289 (Kalandarali akbarali Kazi v. Shaikh Gulam Ibrahim), and on the following observations;

"it is difficult to appreciate that when a tenant does nothing of the sort, there is any obligation cast on the Court to pass any such order without the tenant doing anything. "

( 5 ) BEFORE going further into the merits of the matter, this aspect basically dealing with the mandate of the provisions of Bombay Rent Act, in so far as, the payment of rent and or ground of default is concerned, need some elaboration. As per the scheme of the Bombay Rent Act, it is mandatory for the tenant to pay the rent regularly, as per the agreement. After the demand notice he get first chance to make the payment and or resist or object the demand made. If a tenant makes the deposit or satisfy the landlord about the payment he would get immediate protection, as contemplated under the bombay Rent Act. Another remedy is available under the Act is to file an application for fixation of standard rent within 30 days, after receipt of the demand notice and if he files an application, he is entitled for the protection, as contemplated under the Bombay Rent Act.

( 6 ) IF there is an order passed by the Court, while fixing ad interim rent, another opportunity is available to the tenant to make the deposit or deposit the rent regularly, as per the order passed by the Court on said application. If there is an irregularity in depositing the rent in spite of the order passed by the Court, and in the given case, the Court may consider the ground of default or irregularity but not otherwise.

( 7 ) THEREFORE, the question is whether it is mandatpry for the tenant to move an application and insist for the fixation of the provisional rent or interim rent. Section 11 (3) contemplates an application by the tenant, for fixation of standard rent or determining the permitted increases, after receipt of the notice from the landlord under sub-section (2) of Section 12 of the Bombay rent Act. The other basic aspect which can be borne out from this section itself is the "obligation of the Court to decide such application. " The words "shall, forthwith" put an additional factor, which Court requires