M. C. TRIVEDI, J. B. MEHTA, J.

( 1 ) THE short question which has been referred by the learned Single Judge in this matter is as under: In the absence of a contract between the landlord and the tenant as regards payment of the education cess by the tenant would the amount of education cess form part of the ren payable by the tenant to the landlord so as to enable the Court to decide in a case governed by sec. 12 of the Bombay Rents Hotel and Lodging H use Rates Control Act 1947 (hereinafter referred to as the Rent Act) whether the said rent is payable by the month or otherwise?. The context in which this question had arisen was that the suit premises had been let to the tenant on a monthly rent of Rs. 20. 00and there was no rent note or anything to show that besides this amount of monthly rent which the tenant agreed to pay as consideration for taking the property the tenant agreed to pay inter alia the education cess. The rent had fallen in arrears from August 1 1966 for more than six months and so the statutory notice under sec. 12 (2) was given by the landlord on March 18 1967 and was served on the tenant on March 21 1967 Within one month no dispute about the standard rent had been raised and even the defence of the tenant having paid Rs 200/- towards arrears was disbelieved by both the Courts of facts. The trial Court however refused the eviction decree because education cess which was a part of the rent was not payable by the month and so the case was held to fall under sec. 12 (3) (b) while the appellate Judge held that the education cess was nst part of the rent and therefore the eviction decree was passed because of the gross default under sec. 12 (3) (a ). It is in this context that the present reference has been made by the learned Single Judge as he was differing from the view taken by J. M. Sheth J. In VANLILA VADILAL V. MAHENDRA KUMAR 16 G. L R. 71 where such education cess was held to be a part of the rent but it being not payable by the month it was held that such cess could not fall under sec. 12 (3) (a ).

( 2 ) SEC. 12 (3) (a) of the Rent Act in terms provides as under: (3) (a) where the rent is payable by the month and there is no dispute regarding the amount of standard rent or permitted increases if such rent or increases are in arrears for a period of six months or more and the tenant neglected to make payment thereof until the expiration of the period of one month after notice referred to in sub-sec. (2) the Court may pass a decree for eviction in any such suit for recovery of possession. (B) in any other case no decree for eviction shall be passed in any such suit if on the first day of hearing of the suit or on or before such other day as the Court may fix the tenant pays or tenders in Court the standard rent and permitted increases then due and thereafter continues to pay or tenders in Court regularly such rent and permitted increases till the suit is finally decided and also pays costs Or the suit as directed by the Court. Therefore the case falls under sec. 12 (3) (a) as the case of gross default on fulfilment of the relevant four conditions; (1) that the rent is payable by month; (2) there is no dispute about the standard rent or permitted increases; (3) such rent or increases are in arrears for a period of six months and more; (4) and the tenant neglects to make payment thereof until expiration of the period of one month after the notice under sec. 12 The landlord has in such a case a vested right as per the settled legal position and the Court is bound to pass a decree of eviction. Sec. 12 would be applicable in any other case where those conditions of sec 12 (3) (a) of gross default are not made out It is in the context of sec. 12 (3) (a) that the present question arises.

( 3 ) IN order to interpret this relevant first condition. where the rent is payable by month the term rent will have to be interpreted in the context and setting of this particular eviction provision for gross default when the t

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