JUDGMENT :

J. P. Desai, J.

The plaintiffs-petitioners, trustees of a public charitable trust are owners of the suit property situated at Surat. The property bears room No. 15 of Shri Dulheramji Maharaj, Old Ramdwara Temple Chawl. The defendant Ambalal Naik is a tenant in the suit premises. The premises were let to him on a monthly rent of Rs. 7/-, according to the plaintiffs. He was in arrears of rent from 1-3-1968 and hence notices were given to him and ultimately a notice sent in December 1968 by registered post was received back with an endorsement “unclaimed” and then a notice was sent under certificate of posting which was not returned back to the plaintiffs. The plaintiffs then filed Regular Civil Suit No. 179 of 1969 in the Court of the Civil Judge, Senior Division at Surat for recovery of arrears of rent and possession on the ground of non-payment of rent and on several other grounds. The said suit, in due course, was transferred to the Court of Small Causes at Surat on the establishment of that Court at Surat in the year 1975 and it was then numbered as Small Cause Suit No. 621 of 1975. It was earlier contended before the Civil Court that the defendant was insane and was not in a position to defend himself in the suit but that contention was negatived by the learned Civil Judge and it seems that a revision application filed in this Court against that decision was also dismissed by this Court. After the suit was transferred to the Court of Small Causes, issues were framed at Exhibit 32 on 28-12-1976. Thereafter, the defendant filed the Written Statement, Exhibit 34 on 7-1-1977 signed by the defendant and verified by the defendant and his son both. A dispute about the standard rent was raised in that suit. It was also denied that the defendant was in arrears from 1-3-1968 and it was contended that the defendant was not in arrears of rent but if any arrears were found due, he was prepared to pay up the same. A contention was also raised bout the legality and validity of the notice without, of course, mentioning whether the notice was received by the defendant or not. The plaintiff examined Ratilal Chunilal at Exhibit 36, who is serving as Mehtaji-cum-Secretary with the temple, while on behalf of the defendant, his son Narendra gave evidence at Exhibit 53.

2. On appreciating the evidence recorded before him, the learned Judge of the Small Causes Court at Surat reached the conclusion that though the rent was payable by month and the arrear was more than six months and the dispute about standard rent was raised for the first time while filing the Written Statement in the year 1977, it appeared from the evidence on record that the defendant was liable to pay taxes which, on the face of it, would not be payable by the month and the suit would be governed by Section 12 (3) (b) and not Section 12 (3) (a) of the Rent Act. The learned Judge found that the arrears were deposited in the Court and, therefore, the tenant was entitled to protection under Section 12 (3) (b) of the Rent Act. So far as other allegations made by the plaintiffs are concerned, they were not accepted by the learned trial Judge. The learned trial Judge accordingly dismissed the suit so far as possession is concerned, but passed a decree for Rs. 79/-. The plaintiffs carried the matter in appeal. It was their contention before the District Court in appeal, being Regular Civil Appeal No. 70 of 1977 that the learned trial Judge had erred in reaching the conclusion that the defendant was liable to pay taxes when the plaintiffs had demanded only Rs. 7/- as rent and had not demanded any taxes or permitted increases from the defendant. It was contended that in view of this, the suit was governed by Section 12 (3) (a) of the Rent Act and the dispute about the standard rent having been raised only at the time of filing the Written Statement and that too many years after the filing of the suit, the defendant was not entitled to seek any protection from being evicted. The l