The words "at the hearing of the suit" in S.12(3) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, include the hearing of the appeal.

RAJADHYAKSHA, J. :- This application has come before a Division Bench as it involves decision of a somewhat important point of law in the matter of interpretation of sub-S.(3) of S.12, Bombay Rents, Hotel and Lodging House Rates Control Act.1947. The applicant before us is the original defendant who had occupied the suit premises agreeing to pay a monthly rent of Rs.5 to the opponent-plaintiff. The tenancy commenced on 1-11-1946, and was originally intended to last for 11 months. After the expiry of that period, the tenant continued to hold over. The tenant committed a default in the payment of rent and declined to vacate -the premises in spite of a notice served upon him by the plaintiff landlord. The plaintiff alleged that he required the suit premises for his own use and occupation. The claim was resisted by the tenant on the ground that he had paid all the rent that was due and also on the ground that the plaintiff-landlord did not require the premises for his own use and occupation. Both the trial Judge and the District Judge came to the conclusion that the premises were not required by the plaintiff for his own use and occupation. The trial Court, however, came to the conclusion that the defendant-tenant had not deposited into Court all the arrears of rent and costs of the suit, in which case alone the defendant would have been entitled to claim under sub-S.(3) of S.12 of the Act that no decree for eviction shall be passed against him. The trial Judge accordingly passed a decree for eviction as prayed for by the plaintiff-landlord.

2. Against that decree the defendant-tenant filed an appeal in the District Court of East Khandesh. The learned District Judge upheld the finding of the trial Court that the defendant had not in fact paid the arrears of rent either before or during the pendency of the suit as contended by him. It appears, however, that on the day before the appeal was filed in the District Court on 21-9-1950, the defendant had deposited into the trial Court Rs.200 which covered all the rent due till that date and the costs of the trial Court. Thereupon a prayer was made on behalf of the defendant in the appeal Court that the defendant may be relieved against the consequences of his failure to pay into Court the arrears of rent and the costs of the suit before the passing of the decree. The learned District Judge held that the defendant had net deposited into Court all the arrears of rent and the costs of the suit. But he further went on to say: "Assuming, however, that necessary amount has been deposited by the appellant after the decree was passed, I do not think that I have power to relieve the appellant against the consequences of his failure to make the necessary payment into Court within proper time as required by S.12(3) of Bombay Act 57 of 1947. It should be noted that the appellant was represented by a pleader in the Court below. It cannot therefore be said that he did not know what the consequences would be if he did not pay up all the arrears of rent and the costs of the suit at or before the date of hearing. For those reasons, I hold that the appellant is not entitled to be relieved and cannot be relieved." In the result, therefore, the learned District Judge confirmed the decree for eviction which was passed by the trial Court and dismissed the appeal. Against that order this application has been filed in revision.

3. Mr. Lokur for the applicant-tenant first pointed out that the learned District Judge was in error in holding that the whole amount due on account of arrears of rent and costs of the suit had not been paid. It is true that the defendant did not produce in the District Court the receipt which was passed by the trial Court in acknowledgment of the payment of Rs.200 on 20-9-1950. Mr. Lokur has been able to give any reason as to why the receipt was not produced. But in view of the receipt it cannot be disputed that the payment was in fact made on 20-9-1950, i.e., one day before the