A tenant who is ready and willing to pay rent, as required under section 12(1) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, is protected from eviction, even if he is in arrears of rent for more than six months.

JUDGMENT-This is a tenant's petition under Article 227 of the Constitution of India, challenging the validity of a decree for possession passed in favour of the landlords-respondents Nos. 1 to 3. The petitioner was their tenant in respect of house No. 274, Ward No; 9 situate at Baramati. The suit was filed on the ground that the tenant had failed to pay arrears of rent for more than six months and the tenancy was terminated by a notice dated March 25, 1967.

2.'The suit was resisted by the petitioner on the grounds that the plaintiffs were demanding more than the agreed rent of Rs. 47.25, that the agreed rent itself was excessive and the standard rent should be determined, that the notice terminating his tenancy was received by him on April, 1967, that on April 28, 1967 he sent a cheque for Rs. 1,015 drawn on Poona Central Cooperative Bank Ltd., Branch Baramati, by registered post to plaintiff No.1 along with the reply to the notice, that plaintiff No. 1 refused to accept the delivery of the registered post and hence the plaintiffs were not entitled to a decree for eviction.

3. It seems that, in the trial Court, no issue was framed with regard to the amount of standard rent as the issue was not pressed by the defendant. The trial Court found that the registered letter containing the cheque was refused by the plaintiffs on May 4. 1967, that when it was opened it contained a cheque dated April 29, 1967 and the reply dated April 28. 1967. In the written statement exh. 16, in para. 2, the petitioner had clearly averred that he was always ready and willing to pay all the rent due and that he was in the past and also in future prepared to pay the rent.

4. It is rather strange that notwithstanding all this, although the defendant was a lawyer, he did not insist on a specific issue being framed under section 12 (1) of the Bombay Rents, Hotel and Lodging Home Rates Control Act, 1947. It was, however, the duty of the Court to frame such an issue, as it is the main protection which is given by the Bombay Rent Act to the tenant in respect of termination of the tenancy on the ground of non-payment of rent not withstanding the readiness and willingness to pay rent on the part of the tenant. It is also clear from the record that, even during the pendency of the suit in the trial Court, the-tenant paid all the arrears of rent and costs.

5. In spite of this, however, the trial Court passed a decree for eviction holding that section 13 (3) (a) applied to the suit, as the petitioner did not pay the arrears of rent for more than six months within one month after the notice. It cannot be disputed-and it is not disputed -that the amount of cheque for Rs. 1,015 sent by the tenant by registered post covered the entire arrears of rent. Nevertheless the trial Court held that the cheque was not legal tender, that the amount was sent more than a month after the notice and that therefore the plaintiffs were entitled to a decree under section 12 (3) (a). That decree was confirmed by the Assistant Judge in appeal. The said decisions are challenged in the above petition.

6. Mr. Gole, learned counsel for the petitioner, submits that the petitioner had paid all the arrears of rent and costs of both the Courts below in Court. Mr. Lalit says that this is not stated on affidavit and, therefore, he cannot say anything about the matter. I think that the landlords' advocate cannot, take advantage of the absence of proper instructions from the landlords i~ this way and try to dispute the fact which is a matter of record. The petitioner was given stay in this Court only until further orders. If at all the petitioner had· not paid the amount in the lower Court, as stated by Mr. Gale, the respondents-landlords could have moved this Court for vacating the stay. The landlords have not cared to move this Court for vacating the stay. There is no reason for not accepting the statement made Mr. Gole that the petitioner has deposited the arrears of rent and costs in the lower C

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