( 1 ) THIS is a revision petition filed by the petitioner-landlord under sec. 29 (2) of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 (which will be hereinafter referred to as the Act) against the judgment and decree passed by the learned District Judge Surendranagar in Civil Appeal No. 101 of 1969 dismissing the petitioners appeal and confirming the judgment and decree passed by the learned trial Judge.

( 2 ) BOTH the Courts below have dismissed the petitioner-landladys suit for eviction which was claimed on account of non-payment of arrears of rent and education cess for a period over six months. By suit notice Ex. 23 demand of arrears of rent for the period between 10-5-1967 and 10 was made. That was the rent which could be claimed as found by the two Courts below. She was not entitled to rent upto 27-5-1968 on the date of the notice as it was broken portion of the month. It was a monthly tenancy and she was entitled to get rent at the end of the month. The month ended on 10-6-1968. That amount came to Rs. 48 The petitioner-landlady had further claimed education cess of Rs. 8 40 paise. Opponent tenant had sent money-order of Rs. 48. 00 within the period of one month from the date of the receipt of the notice. He had not sent the aforesaid education cess amount but he had paid it later on.

( 3 ) THE learned District Judge came to the conclusion that sub-sec. (3) (a) of sec. 12 of the Act would not be attracted as part of the rent namely the education cess could not be said to be payable by month relying upon the decision of this Court in Mohanlal v. Maheshwari Mills Ltd. 3 Gujarat Law Reporter 574; he came to the conclusion that the education cess was an annual cess. Therefore although defendant No. 1 was a monthly tenant and so far as the rent of Rs. 4. 00 per month was concerned it was payable by month the education cess payable by him was not payable by month. In that view of the matter sec. 12 (3) (a) of the Act was not attracted. Taking that view of the matter he reached the conclusion that the decree for eviction cannot be passed against the opponent-tenant under section 12 (3) (a) of the Act.

( 4 ) MR. Suresh M. Shah appearing for the petitioner-landlady has urged that payment of education cess in respect of the suit premises is also payment of a part of the rent. The two Courts below on consideration of the evidence have reached the conclusion that there was monthly tenancy and the rent of Rs. 4. 00 in respect of the suit premises was payable by month. This increase in rent is permissible on account of payment of education cess by the landlady who is primarily liable and the tenant is bound to pay such an increase in the rent is permissible and sec. 7 of the Act does not come in the way of the landlady. It should therefore be taken to be rent payable by month. It could not be said that part of the rent in respect of the suit premises is payable by month and part of it is not payable by month.

( 5 ) IN support of this argument Mr. Shah has invited my attention to the decision of the Supreme Court in Gauri Shankar Chittarmal Gupta v. Smt. Gangabai Tokersey A. I. R. 1971 Supreme Court 659. Short question that arose for consideration for the Supreme Court was whether the High Court was justified in holding that the respondent-landlord was entitled to seek eviction of the appellant on the ground that the latter had failed to pay the standard rent including the permitted increases for over a period of six months. At page 661 in para 3 it is observed:it will be noted that in this notice the respondent claimed arrears of rent including the amount of increment in municipal taxes and that the total amount per month was at Rs. 52-9-6 as. ps. Claim by way of arrears of rent including the increments in municipal taxes was for a period of five months from December 1 1954 to April 30 1955 and compensation was further claimed for one month. The appellant again sent a reply through his counsel on July