JUDGMENT:- By this petition, petitioners seek to impugn Judgment rendered by the learned Additional District Judge, in Regular Civil Appeal No.311/1986) whereby appeal preferred by the respondents came to be allowed and decree for dismissal of their suit for eviction (R.C.S. No.448/1983) was reversed.

2. Indisputably, the petitioners are tenants in respect of a house property bearing city survey no.2286, to the extent of one (l) room as described in the claim clause, situated in ward No.1 at Shrirampur. The respondents are the original plaintiffs and are landlords of the house property. The standard rent is Rs.30/ - p.m. The tenancy month commences from first day of each calender month.

3. The respondents filed suit for eviction alleging that the petitioners had committed willful default in payment of the rent. They asserted further that they were in need of the suit premises for bonafide and personal use. They issued quit notice dated 30-08-1983 and called upon the petitioners to vacate the suit premises by end of the next calender month. The petitioner No.1 gave reply to the quit notice on 29-09-1983 and separately filed an application for fixation of standard rent. The petitioners denied that the agreed rent was Rs. 40/ - p.m. as alleged. They further denied that they were willful defaulters. They contended that they had paid the rent from 01-09-1981 till February, 1983, but the respondents did not issue rent receipts. They were not in the arrears of the rent, nor ground of bona fide requirement is legal and proper. Consequently, they sought dismissal of the suit.

4. The trial Court held that the standard rent was of Rs.30/- p.m. and the petitioners were in arrears of rent w.e.f. 01-09-1998 as alleged. The trial Court further held that the respondents failed to establish bonafide requirement of the suit premises for personal use and occupation. The trial Court came to the conclusion that since the petitioners deposited the arrears of the amount of rent within period of one month of filing of the suit, they were protected in view of section 12(3)(b) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (for short, "the Bombay Rent Act"). The suit was, therefore, dismissed.

5. Feeling aggrieved, the respondents preferred the appeal (R.C.A. No.311/1986). The first appellate Court reversed finding of the trial Court on the question of the default. The I appellate Court held that the defendants/ petitioners herein were ineligible to claim protection under section 12(3)(b) of the Bombay Rent Act. The first appellate Court held that the nonpayment of the standard rent fixed by the Court during pendency of the appeal could be considered as sufficient ground to evict the petitioner in as much as the appeal is continuation of the original suit. The first appellate Court noticed the irregularity committed by the petitioners (tenants) while depositing the rent during the pendency of the appeal. It was found that they had not deposited the rent for period of 79 months. It was noticed that after 1994, the rent was not deposited regularly and that the petitioners committed significant defaults. Consequently, the appeal was allowed.

6. Heard learned counsel for the parties.

7. The material question to be considered is whether finding of fact rendered by the first Appellate Court regarding nonpayment of the rent by the petitioners during the proceedings of the first appeal can be regarded as perverse and that the petitioners would be entitled to seek protection under section 12(3)(b) of the Bombay Rent Act.

8. Mr. Bayas would strenuously argue that the irregularity in the payment of rent or non-payment of the rent during pendency of the appeal could not be the ground for eviction, He would submit that such defaults may give rise to separate cause of action but the same could not have been taken into account by the first appellate Court. He would further submit that the question of default is restricted to the averments in

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