Judgment

RAGHUBAR DAYAL, J: This appeal, by special leave is against the judgment and decree of the High Court of Gujarat.

2. The appellant was a tenant of certain residential premises situate at Anand, and belonging to the respondents-landlords. Under a contract between the parties, he held them at Rs. 75 per mensem according to Indian Calendar. In 1951 the appellant applied for fixation of standard rent. On March 31, 1954, the standard rent was fixed at Rs 25 per mensem. The appellant did not pay the arrears of rent from Ju1y 27, 1949 to July 5, 1954. On October 16, 1954, the landlords gave him notice to quit the premises stating therein that rent for over six months was in arrears and that he was to quit on the last day of the month of tenancy which was Kartak Vad 30 of Samvat Year 2011. The appellant neither paid the arrears of rent nor vacated the premises. On December 16, 1954, the respondents filed the suit for ejectment basing their claim for ejectment on the provisions of S. 12 (3) (a) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Bom Act LVII of 1947), hereinafter called the Act.

3. Within two months of the institution of the suit the appellant deposited an amount of Rs. 1,075 in Court towards arrears of rent and, with the permission of the Court, the respondents withdrew a sum of Rs. 900 which was the amount due for arrears up to that time. The Trial Court decreed the suit for ejectment together with arrears of rent for three years and costs. An appeal against the decree for ejectment was dismissed by the appellate court. The revision to the High Court was also unsuccessful, and it is against the order in revision that this appeal has been preferred.

4. Four points were urged before the High Court : (1) That the month of tenancy was not by the Indian Calendar, but was by the British Calendar and that the Courts below bad ignored evidence in that regard. (2) Assuming that the month of tenancy was by the Indian Calendar according to the lease, it would be deemed to be by the British Calendar in view of the provisions of S.27 of the Act. (3) As the arrears of rent had been paid within two months of the institution of the suit, the appellant be deemed to be ready and willing to pay the rent and that therefore the landlord was not entitled to recover possession of the premises. (4) It is discretionary with the Court to pass decree for ejectment in a case under S.12 (3)(a) of the Act, as the expression used in that sub-clause is the Court may pass a decree for eviction in any such suit for recovery of possession .

5. The High Court held that the findings of the Courts below that the month of tenancy was by the Indian Calendar was based on a consideration of the evidence on the record and therefore was binding. It also held that it could not be deemed to be by the British Calendar in view of S.27 of the Act which provided that the rent would be recovered according to the British Calendar, notwithstanding anything contained in any contract and did not provide for the tenancy to be by the month according to the British Calendar even if the tenancy under the contract was by a different Calendar. The High Court also held that the tenant s depositing arrears of rent within two months of the institution of the suit would not justify holding that the tenant was ready and willing to pay the amount of standard rent and that therefore the landlord was not entitled to recover possession of the premises in view of sub-sec.(1) of S.12 of the Act. Lastly, the High Court held that the Court is bound to pass a decree for ejectment under S.12 (3)(a) if it be proved that the rent was payable by the month, that it had been in arrears for a period of six months and that the tenant failed to make payment of the arrears until the expiration of the period of one month after the service of notice referred to in sub-sec. (2) of that Section. As a result, the revision was dismissed.

6. Two points have been urged for the appell