P. N. BHAGWATI, J. ( 1 ) THIS Revision Application arises out of a suit filed by the plaintiff against the defendant to recover possession of certain premises situate in Baroda. The contractual rent of the premises was Rs. 70. 00 per month. The defendant fell in arrears of payment of rent from 1st October 1955 and the plaintiff therefore gave a notice dated 1st December 1956 demanding arrears of rent from the defendant under sec. 12 (2) of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 (hereinafter referred to as the Rent Act ). The notice was received by the defendant on 3rd December 1956. The defendant replied to the notice on 7th December 1956 and in this reply the defendant raised a dispute as regards the standard rent of the premises. The defendant contended that the contractual rent of Rs. 70. 00 per month was excessive and was very much more than the standard rent of the premises. The defendant thereafter made an application for fixation of standard rent of the premises on 5th January 1957. In the application the defendant prayed that Rs. 35. 00 per month should be fixed as standard rent of the premises. The defendant also prayed that interim rent should be fixed by the Court under sec. 11 (3) of the Rent Act. The defendant thereafter deposited in Court a sum of Rs. 500. 00 on 8th January 1957 and immediately gave notice to the plaintiff that the defendant had made an application for fixation of standard rent of the premises and that an application for fixing interim rent was also made in such application and that the defendant would pay up all the arrears of rent calculated on the basis of such interim rent as soon as such interim rent was fixed by the Court. It may be mentioned here that prior to this date there was a dispute between the plaintiff and the defendant regarding two items. The first item was rent for the period of six months from 1st October 1955 to 31st March 1956. The defendant contended that he had paid to the plaintiff rent for this period but that the plaintiff had refused to give receipts acknowledging payment of such rent. The first item was rent for the period of six months from 1st October 1955 to 31st March 1956. The defendant contended that he had paid to the plaintiff rent for this period but that the plaintiff had refused to give receipts acknowledging payment of such rent. The plaintiff on the other hand contended that no such rent was at any time paid by the defendant to the plaintiff and that the defendant was in arrears of payment of rent from 1st October 1955. The second item related to a sum of Rs. 200. 00 which the defendant alleged was spent by him on electric installations in the premises under an agreement that the plaintiff would reimburse the defendant in respect of the same. The plaintiff denied such agreement and contended that the defendant was not entitled to be reimbursed any amount spent by him on electric installations in the premises. The dispute briefly stated therefore was that the defendant claimed credit in respect of rent for the period of six months from 1 October 1955 to 31st March 1956 as also in respect of the sum of Rs. 200. 00 alleged to have been spent by him on electric installations in the premises which claim was denied by the plaintiff. The defendant in the letter addressed by him to the plaintiff offering to pay up all the arrears of rent on the basis of the interim rent fixed by the Court stated that the defendant was Willing to pay up all such arrears without deducting the amount for which he claimed credit and that the dispute in regard to that amount could be settled later. The plaintiff however did not wait and fixed a suit for eviction against the defendant on 25th January 1957 The date for settlement of issues was fixed on 11th April 1957. Prior to this date the defendant deposited in Court a sum of Rs. 200. 00 on 2 March 1957. A further sum of Rs. 218. 00 was also deposited by the defendant in Court on 11th April 1957. The result therefore was that on 11th April 1957 which was the date for settlement of issues the defendant had deposited in Court an aggregate sum of Rs. 918. 00. The defendant thereafter did not deposit any further amount until 24th June 1957 when he deposited a sum of Rs. 102. 00. The result therefore was that on 11th April 1957 which was the date for settlement of issues the defendant had deposited in Court an aggregate sum of Rs. 918. 00. The defendant thereafter did not deposit any further amount until 24th June 1957 when he deposited a sum of Rs. 102. 00. After this date also the defendant was irregular and it was only on 10th September 1957 that he made the next deposit of Rs. 153/. Some deposits were thereafter made by the defendant from time to time but nothing turns on these deposits and I need not therefore concern myself with the same. The suit was ultimately disposed of by the trial Court on 20th March 1958. The trial Court came to the conclusion that the standard rent of the premises was Rs. 51. 00 per month and that the defendant had paid rent for the period 1 October 1955 to 31st March 1956 and had also spent a sum of Rs. 150 on account of electric installations for both of which items the defendant was entitled to claim credit from the plaintiff. The trial Court held on the basis of these conclusions that the defendant having deposited in Court before the date of the suit a sum of Rs. 500/- on 8th January 1957 the defendant could not be said to be in arrears of rent and that the plaintiff was therefore not entitled to possession of the premises from the defendant. The trial Court accordingly dismissed the plaintiffs claim for possession against the defendant. The plaintiff being aggrieved by the decree of dismissal passed by the trial Court preferred an appeal in the Court of the District Judge Baroda. The learned Assistant Judge who heard the appeal found that the standard rent of the premises was not Rs. 51. 00 per month but was Rs. 70. 00 per month. On the question of payment of rent for the period 1st October 1955 to 31st March 1956 the learned Assistant judge took the view that it could not be said to be proved that the defendant had paid such rent to the plaintiff and that the defendant was therefore in arrears of rent from 1st October 1955. The learned Assistant Judge did not disagree with the finding of the trial Court that the defendant had spent Rs. 150. The learned Assistant Judge did not disagree with the finding of the trial Court that the defendant had spent Rs. 150. 00 on account of electric installations but came to the conclusion that the defendant was not entitled to recover the same from the plaintiff since there was nothing to show that the plaintiff had agreed to reimburse the defendant in respect of the same. In this view of the matter the learned Assistant Judge found that the defendant was a tenant in arrears but that he had complied with the requirements of sec. 12 (3) (b) of the Rent Act and was therefore not liable to be evicted by the plaintiff. The learned Assistant Judge accordingly allowed the appeal in so far as the standard rent of the premises was concerned but dismissed the appeal in regard to the plaintiffs claim for possession of the premises against the defendant. The plaintiff thereupon preferred the present Revision Application in this Court ( 2 ) IT was not disputed before me and indeed having regard to the decision of a Division Bench of this Court in Ambalal v. Babaldas (1962) III G. L. R. 625 it could not be disputed that the present case was governed not by section 12 (3) (a) but by section 12 (3) (b) since the defendant in his reply dated 7th December 1956 to the notice dated 1st December 1956 given by the plaintiff to the defendant under section 12 raised a dispute regarding the standard rent of the premises The main controversy between the parties therefore centred round the question whether the defendant complied with the requirements of section 12 Before however I examine the merits of this controversy for the purpose of coming to a decision one way or the other it would be convenient to first dispose of a contention urged on behalf of the defendant founded on section 12 (1 ). Mr. B. S. Trivedi learned advocate appearing on behalf of the defendant contended that the defendant was entitled to the protection of section 12 (1) because he paid or in any event was ready and willing to pay the amount of the standard rent and could not therefore be evicted by the plaintiff. There were two limbs of the contention advanced under this head and they were in the alternative. There were two limbs of the contention advanced under this head and they were in the alternative. The first limb of the contention was that having regard to the decision of the Supreme Court in S. B. 8. Oil Mills v. Subhash Chandra (A. I. R. 1961 S. C. 1596) the point of time at which it was to be seen whether the defendant had paid or was ready and willing to pay the amount of the standard rent was when the decree was to be passed. The decree was passed in the present case argued Mr. B. S. Trivedi on 20th March 1958 and at this date the defendant had already deposited in Court an aggregate sum of Rs. 1 479 which covered the arrears of standard rent if the standard rent was Fixed at Rs. 51. 00 per month. According to Mr. B. S. Trivedi this constituted sufficient compliance with the requirements of section 12 (1 ). This contention was obviously based on the premise that the standard rent of the premises was Rs. 51. 00 per month contrary to the finding of the learned Assistant Judge that the standard rent of the premises should be Rs. 70. 00 per month. Of course Mr. B. S. Trivedi contested the finding of the learned Assistant Judge but for reasons which I shall state at the proper time while dealing with that point this finding cannot in my opinion be successfully challenged and the Revision Application must be decided on the basis of the standard rent of the premises being Rs. 70. 00 per month. If the standare rent of the premises be taken at Rs. 70. 00 per month the amount deposited by the defendant in Court upto the date of the decree was obviously not sufficient to cover the arrears of rent. Mr. B. S. Trivedi thereupon contended that the defendant was yet entitled to the benefit of the protection contained in sec. 12 (1) since the amount deposited was sufficient to cover the arrears of rent calculated at the rate of Rs. 51. 00 per month which was the interim rent specified by the Court under sec. 11 on the application of the defendant for fixation of interim rent. Now if the date of the decree were the relevant point of time at which to consider whether the conditions mentioned in sec. 51. 00 per month which was the interim rent specified by the Court under sec. 11 on the application of the defendant for fixation of interim rent. Now if the date of the decree were the relevant point of time at which to consider whether the conditions mentioned in sec. 12 (1) are fulfilled this contention of Mr. B. S. trivedi might have had some force for in that event Mr. B. S. Trivedi could have urged that the standard rent of the premises being in dispute the defendant must be regarded as being ready and willing to pay the amount of the standard rent when the defendant deposited in Court the arrears of rent calculated on the basis of the interim rent specified by the Court under sec. 11 (3) on the application of the defendant for fixation of interim rent. But it is now well-settled that the relevant point of time at which it is to be considered whether the conditions mentioned in sec. 12 (1) are fulfilled is the date of the suit and not the date of the decree. The decision of the Supreme Court in S. B. and. Oil Mills v. Subhash Chandra (supra) lays down the true rule of decision enacted by sec. 12 (1) and the matter must now be regarded as concluded by decision of the Supreme Court. Of course what is the true rule of decision laid down by the Supreme Court in this decision was once a matter of controversy and I may point out that in a decision given by me in Mohanlal v. Maheshwari Mills Ltd. (1962) III G. L. R. 574 prior to the decision of the Division Bench in Ambalal v. Babaldas (supra) I had interpreted this decision of the Supreme Court in S. B. K. Oil Mills v. Subhash Chandra (supra) as laying down the proposition that the relevant point of time to consider whether the conditions mentioned in sec. 12 (1) are fulfilled is the time at which the decree is to be passed and not the date of the institution of the suit. But the Division Bench in Ambalal v. Babaldas (supra) differently interpreted the ratio of this decision of the Supreme Court and held that according to this decision of the Supreme Court the protection conferred by sec. But the Division Bench in Ambalal v. Babaldas (supra) differently interpreted the ratio of this decision of the Supreme Court and held that according to this decision of the Supreme Court the protection conferred by sec. 12 (1) must be determined from the circumstances existent at the date of the suit and not at the date of the decree. This contention of Mr. B. S. Trivedi based as it was on the premise that sec. 12 (1) operates at the date of the decree and not at the date of the suit must therefore fail and be rejected. ( 3 ) THE second limb of the argument of Mr. B. S. Trivedi based on sec. 12 proceeded on the hypothesis that sec. 12 (1) operates at the date of the suit and not at the date of the decree and that it is at the date of the suit that it must be seen whether the tenant has paid or is ready and willing to pay the amount of the standard rent. Mr. B. S. Trivedi contended that even if the relevant point of time for the operation of sec. 12 was the date of the suit and not the date of the decree the defendant was yet entitled to the protection of sec. 12 (1) since he was ready and willing to pay the amount of the standard rent at the date of the suit. Now the same decision of the Division Bench in Ambalal v. Babaldas (supra) which lays down that the date at which readiness and willingness of the tenant must be judged in order to decide whether the tenant is entitled to the Protection of sec. 12 (1) is the date of the suit and not the date of the decree also establishes that readiness and willingness to pay the amount of the standard rent can be shown by the tenant even apart from the provisions of the Explanation to sec. 12. The Explanation to sec. 12 provides only one mode of evidencing readiness and willingness and the tenant may not choose to resort to that method and may prefer to establish his readiness and willingness otherwise than under the Explanation. There is nothing in sec. 12 not to allow him to establish his actual readiness and willingness instead of relying on the fiction created by the Explanation. There is nothing in sec. 12 not to allow him to establish his actual readiness and willingness instead of relying on the fiction created by the Explanation. The question which therefore arises for consideration under this head of argument is whether the defendant could be said to have shown his readiness and willingness to pay the amount of the standard rent at the date of the suit though he did not make an application for fixation of standard rent within one month of the date of the notice under sec. 12 (2) as contemplated by the Explanation. In order to establish the readiness and willingness of the defendant Mr. B. S. Trivedi relied upon the following circumstances. Mr. B. S. Trivedi pointed out that the defendant made an application for fixation of standard rent on 5th January 1957 and immediately applied for an order specifying interim rent under sec. 11 (3 ). Pending the specification of the interim rent the defendant deposited a sum of Rs. 500. 00 in Court on 8th January 1957 and gave notice to the plaintiff that as soon as the interim rent was specified the defendant was willing to pay up the arrears in the basis of such interim rent without deducting any amounts for which the defendant claimed credit and in respect of which there was dispute between the parties. These facts clearly showed argued Mr. B. S. Trivedi that the defendant was ready and willing to pay the amount of the standard rent at the date of the suit. But this contention suffers from one serious infirmity. The defendant prayed in the application for fixation of standard rent that the standard rent of the premises should be fixed at Rs. 35. 00 per month On the basis of the standard rent being Rs. 35. 00 per month the arrears of the standard rent upto 8th January 1957 amounted to Rs. 525. 00 and yet the defendant deposited in Court only Rs. 500. 00 on 8th January 1957. I do not see how under these circumstances the defendant could be said to be ready and willing to pay the amount of the standard rent at the date of the suit. On the defendants own showing the standard rent of the premises was Rs. 35. 00 per month and the arrears of the standard rent therefore came to Rs. 525. On the defendants own showing the standard rent of the premises was Rs. 35. 00 per month and the arrears of the standard rent therefore came to Rs. 525. 00 but the defendant did not care to deposit even this amount and deposited only Rs. 500. 00 which did not cover the arrears of rent even on the basis accepted by the defendant himself. If the defendant had deposited Rs. 525/- in Court there would have been some force in the argu- ment of Mr. B. S. Trivedi that the defendant was ready and willing to pay the amount of the standard rent for in that event the defendant could have urged that he had actually deposited in Court the arrears of standard rent calculated at the rate of Rs. 35. 00 per month which according to his application was the standard rent of the premises. But that not having been done the defendant could not be said to be ready and willing to pay the amount of the standard rent when he did not pay or deposit in Court the arrears calculated on the basis of what even according to him was the standard rent of the premises. The defendant was therefore in my opinion not entitled to claim the benefit of the protection contained in section 12 (1) and the present contention of Mr. B. S. Trivedi must be rejected. ( 4 ) THAT takes me to the consideration of the question whether on the facts of the case the defendant complied with the requirements of section 12 and was therefore protected from eviction by the plaintiff. This question though at one time providing a fertile ground for doubt and confusion has now become simple and easy of solution since having regard to the decision of the Division Bench in Ambalal v. Babaldas (supra) it is now merely a matter of application of a well-settled formula to the facts of any given case in order to determine whether the tenant has complied with the requirements of section 12 (3) (b ). According to this decision of the Division Bench the tenant must pay the arrears of standard rent as also costs of the suit on or before the first date of hearing of the suit which is the date of settlement of issues and if he is unable to do so he must apply to the Court for fixing another date and make payment of the arrears of standard rent and costs of the suit on or before such other date fixed by the Court. The tenant must there- after continue to pay or tender in Court regularly the standard rent and permitted increases till the suit is finally decided. It is only if the tenant complies with these conditions that the tenant can claim of be protected under section 12 (3) (b ). Now as I have already pointed out above the standard rent of the premises was fixed by the learned Assistant Judge at Rs. 70. 00 per month and though Mr. B. S. Trivedi contested the correctness of this finding the challenge must for reasons which I shall state later fail and I must proceed to dispose of the revision application on the basis that the standard rent of the premises was Rs. 70. 00 per month The date for settlement of issues was 11th April 1957 and that must therefore be taken as the first date of hearing of the suit. On that date the defendant was in arrears of payment of rent from 1st October 1955 upto 31st March 1957. The arrears of standard rent thus amounted to Rs. 1 260 on the first date of hearing of the suit. The costs of the suit came to Rs. 143. 00. The defendant should therefore have deposited an aggregate sum of Rs. 1 403 on 11th April 1957 in order to be entitled to the benefit of the protection contained in section 12 (3) (b ). If the defendant was unable to deposit the amount the defendant should have made an application to the Court for fixing a subsequent date for making such deposit. The defendant however deposited in Court only an aggregate sum of Rs. 918. 00 on or before 11th April 1957 and did not make any application to the Court for fixing a subsequent date for depositing any further amount. The amount of Rs. 918. The defendant however deposited in Court only an aggregate sum of Rs. 918. 00 on or before 11th April 1957 and did not make any application to the Court for fixing a subsequent date for depositing any further amount. The amount of Rs. 918. 00 was obviously insufficient to cover the arrears of standard rent upto the first date of hearing of the suit and costs of the suit. This particular requirement of section 12 (3) (b) was therefore not complied with by the defendant and the defendant was not entitled to claim the protection conferred by that section. ( 5 ) MR. B. S. Trivedi realising this difficulty in the way of the defendant contended that on the application of the defendant an order specifying interim rent at Rs. 51. 00 per month was made by the Court and that the aggregate sum of Rs. 918. 00 deposited by the defendant in Court on or before 11th April 1957 was sufficient to cover the arrears of rent calculated at the rate of Rs. 51. 00 per month and that there was therefore sufficient compliance with the requirements of section 12 (3) (b ). The contention of Mr. B. S. Trivedi was that the interim rent specified by the Court under section 11 (3) should be deemed to be the standard rent so far as pending proceedings were concerned until the standard rent was fixed by the Court in such proceedings and that since the defendant had deposited the entire amount calculated on the basis of the interim rent specified by the Court under section 11 (3) the defendant should be deemed to have deposited the arrears of standard rent within the meaning of section 12 (3) (b) so as to operate as a bar against the plaintiffs right to recover possession of the premises from the defendant. Now this attempt on the part of Mr. B. S. Trivedi to show compliance with the requirements of section 12 (3) (b) by the defendant was though heroic quite futile. The contention of Mr. B. S. Trivedi is in my opinion devoid of merit and is contrary to the plain language of the enactment. This contention is based on a wrong attempt to equate interim rent specified in the order made under section 11 (3) with standard rent which might be fixed under section 11 (1 ). The contention of Mr. B. S. Trivedi is in my opinion devoid of merit and is contrary to the plain language of the enactment. This contention is based on a wrong attempt to equate interim rent specified in the order made under section 11 (3) with standard rent which might be fixed under section 11 (1 ). I had occasion to consider the validity of this contention in Karimbhai v. Hariprasad ( (1962) III (G. L. R. 529) and there I rejected it in the following words:- (P. 545) ( 6 ) THE contention of Mr. B. R. Shah was that the defendant had complied with the requirements of sub-sec. (3) (b) of sec. 12 inasmuch as the defendant had deposited in Court the entire amount of rent upto the date of the decree passed by the trial Court on the basis of the interim rent specified by the trial Court under sub-sec. (3) of sec. 11. Mr. B. R. Shah contended that the interim rent specified by the court under sub-sec. (3) of sec. 11 should be deemed to be the standard rent so far as pending proceedings are concerned and that since the defendant had deposited the entire amount calculated on the basis of the interim rent specified by the trial Court under sub-sec. (3) of sec. 11 the defendant should be deemed to have deposited the standard rent within the meaning of sub-sec. (3) (b) of sec. 12 so as to operate as a bar against the plaintiffs right to recover possession of the shop from the defendant. This contention is in my opinion devoid of merit and is contrary to the plain language of the enactment. This contention is based on a wrong attempt to equate interim rent specified in the order made under sub-sec. (3) of sec. 11 with standard rent which might be fixed under sub-sec. (1) of sec. 11. Sub-sec. (3) (b) of sec. 12 refers to standard rent and provides that the tenant shall be entitled to the protection conferred by that subsection if on the first day of hearing of the suit or on or before such other date as the Court may fix the tenant pays or tenders in Court infer alia standard rent then due and thereafter continues to pay or tender in Court regularly standard rent till the suit is finally decided. Now standard rent is defined in sub-sec. (10) of sec. 5 and in any of the cases specified in sec. 11 standard rent means the rent fixed by the Court. In the present case the defendant made an application to the Court for the purpose of fixing the standard rent and he also claimed in the written statement that the standard rent should be fixed by the Court. The standard rent in the context of these facts could mean only the rent fixed by the Court either on the application made by the defendant for that purpose or in the suit filed by the plaintiff against the defendant. The interim rent specified by the Court in the order made under sub-sec. (3) of sec. 11 could not possibly be equated with the standard rent fixed by the Court on the application made by the defendant for that purpose or in the suit. The interim rent specified by the Court under sub-sec. (3) of sec. 11 represented merely the amount of rent to be paid by the tenant pending the final decision of the application for fixation of the standard rent and the standard rent fixed by the Court on the application could be more or less than the interm rent. I do not see how under these circumstances the expression standard rent in sub-sec. (3) (b) of sec. 12 could possibly include within its connotation the interim rent specified by the Court under sub-sec. (3) of sec. 11. Mr. B. R. Shah contended that under sub-sec. (10) of sec. 5 standard rent meant in any of the cases specified in sec. 11 the rent fixed by the Court and according to him the interim rent specified by the Court under sub-sec. (3) of sec. 11 was also fixed by the Court and therefore fell within the definition of standard rent. This contention of Mr. B. R. Shah overlooks the distinction between standard rent and interim rent which is made in sub- sec. (3) of sec. 11. Sub-sec. (3) of sec. 11 in terms makes a distinction between standard rent which might be fixed on the application for fixation of standard rent and interim rent which might be specified by the Court under that sub-section as the amount of rent to be paid by the tenant pending the final decision of the application. When sub-sec. (3) of sec. (3) of sec. 11 in terms makes a distinction between standard rent which might be fixed on the application for fixation of standard rent and interim rent which might be specified by the Court under that sub-section as the amount of rent to be paid by the tenant pending the final decision of the application. When sub-sec. (3) of sec. 11 itself makes a distinction between standard rent and interim rent I do not see how it can possibly be contended that interim rent is standard rent within the meaning of the definition of that term contained in sub-section (10) of section 5. There is also another distinction which the contention of Mr. B. R. Shah ignores. Sub-section (10) of section 5 defines standard rent as the rent fixed by the Court while the interim rent referred to in sub-section (3) of section 11 is not fixed by the Court but is specified by the Court in the order made under that sub-section. The interim rent specified by the Court in the order made under sub-section (3) of section 11 cannot therefore in my opinion be equated with the standard rent and the defendant cannot be considered to have fulfilled the requirements of sub-section (3) (b) of section 12 by paying or tendering in Court the interim rent upto the date of the decision of the suit unless of course the standard rent fixed by the Court ultimately turns out to be the same as the interim rent or less than the interim rent. ( 7 ) THE true view according to this decision of mine therefore is that payment or tender in Court of arrears of rent on the basis of the interim rent specified by the Court under sec. 11 (3) on the first date of hearing of the suit or on or before such other date as may be fixed by the Court on the application of the tenant would not constitute sufficient compliance with the requirements of sec. 12 (3) (b) unless the standard rent fixed by the Court ultimately turns out to be the same as the interim rent or less than the interim rent so that the amount paid or tendered in Court covers the arrears of standard rent due upto such date. 12 (3) (b) unless the standard rent fixed by the Court ultimately turns out to be the same as the interim rent or less than the interim rent so that the amount paid or tendered in Court covers the arrears of standard rent due upto such date. In the present case the standard rent ultimately fixed by the Court turned out to be very much more than the interim rent and the defendant could not therefore be said to have paid or tendered in Court the arrears of standard rent due upto the first date of hearing of the suit if he deposited the arrears calculated at the rate of Rs. 51. 00 per month which was the interim rent specified by the Court under sec. 11 (3 ). Mr. B. S. Trivedi when faced with this decision given by me in Karimbhai v. Hariprasad (supra) relied on certain observations in the judgment of the Division Bench in Ambalal v. Babaldas (supra ). Having regard to these observations contended Mr. B. S. Trivedi the decision given by me in Karimbhai v. Hariprasad (supra) could no longer be considered to be good law and Mr. B. S. Trivedi urged that I should therefore following these observations take the view that even if the defendant paid or deposited in Court arrears on the basis of the interim rent specified by the Court under sec. 11 (3) the defendant was entitled to the protection of sec. 12 (3) (b ). Since considerable reliance was placed on these observations and it was contended that these observations had the effect of overruling my previous decision I will reproduce these observations in full :- (P. 645-646)IF a tenant pays the arrears on or before such day and continues to pay on due dates the standard rent or permitted increases until the suit is finally decided and also costs of the suit no decree for eviction can be passed against such a tenant. Even if the tenant were to neglect to pay the arrears due on the first day of the hearing but applies to the Court for fixing a subsequent date for such payment and pays on such date the arrears as also the costs of the suit and continues to pay thereafter regularly the standard rent or such amount specified in the order made by the Court inter section 11 (3) the Court again would have no jurisdiction to pass a decree for eviction against such a tenant. . . . . . . . . . . . . . . . ( 8 ) IT would appear from the scheme of the section that if he raises a dispute as to the standard rent or permitted increases on receipt of the notice and resorts to the explanation to section 12 and complies with the terms thereof he would be protected under sub-section (1 ). If he has not done so but establishes his readiness and willingness to pay the standard rent and permitted in creases. otherwise than under the explanation even then he would be protected under sub-sec. (1 ). If he does not do that even and pays the arrears due and the costs of the suit provided the arrears are not for six months or more and his case does not fall under sub-sec. (3) (a) on the first day of the hearing or on such other day fixed by the Court and thereafter continues to pay on the due dates till the suit is disposed of he would be protected under sub-section (3) (b ). Even if he does not do any of these things but raises a dispute after the service of the notice and applies under section 11 (3) for the fixation of the standard rent and pays thereunder as ordered by the Court he would be protected. . . . . . X x x x x x x x x. . . . . If there is a dispute with regard to the standard rent or permitted increases the tenant can resort to the explanation and pay as directed there under or if he does not wish to resort to the explanation he may file an application for fixation of the standard rent after receipt of the notice under sub-sec. . . . If there is a dispute with regard to the standard rent or permitted increases the tenant can resort to the explanation and pay as directed there under or if he does not wish to resort to the explanation he may file an application for fixation of the standard rent after receipt of the notice under sub-sec. (2) under sub-section 11 (3) and pay as directed by the Court thereunder. If he finds that such an order is not likely to be passed by the Court before the first day of the hearing he may ask for a subsequent date for such payment ( 9 ) THESE observations no doubt appear to support the contention of Mr. B. S. Trivedi and if these observations are binding upon me I must take the view whatever be my own opinion on the question that the tenant would be entitled to protection if he filed an application for fixation of standard rent though more than one month after the date of the notice under sec. (12) (2) and pays or tenders in Court the arrears of rent calculated on the basis of the interim rent specified by the Court under sec. 11 (3) on or before the first date of hearing of the suit or on or before such other date as may be fixed by the Court on his application and also complies with the other conditions mentioned in sec. 12 (3) (b) and if this view be taken it is obvious that the defendant must be regarded as having complied with at least that condition of sec. 12 (3) (b) which requires that the tenant should pay or tender in Court the arrears of standard rent on or before the first date of hearing of the suit or on or before such other date as may be fixed by the Court since the defendant did deposit in Court on or before the first date of the suit an aggregate sum of Rs. 918. 00 sufficient to cover the arrears of the rent calculated on the basis of Rs. 51. 00 per month which was the interim rent specified by the under sec. 11 (3 ). Of course even then the question would still remain whether the other conditions of sec. 12 (3) (b) are satisfied by the defendant. 918. 00 sufficient to cover the arrears of the rent calculated on the basis of Rs. 51. 00 per month which was the interim rent specified by the under sec. 11 (3 ). Of course even then the question would still remain whether the other conditions of sec. 12 (3) (b) are satisfied by the defendant. But for reasons which I shall presently state I cannot regard myself as bound by these observations. These observations are clearly obiter since in none of the three cases before the Division Bench did the question arise as to whether a tenant who pays or deposits in Court the arrears of rent on the basis of the interim rent specified by the Court under sec. 11 (3) together with costs of the suit on the first date of hearing of the suit or on or before such other date as may be fixed by the Court and thereafter continues to pay regularly such interim rent would be entitled to be protected under sec. 12 (3) (b ). These observations were undoubtedly made while analysing the scheme of sec. 12 but they were not necessary for the decision of any of the three cases before the Division Bench nor did they form an essential or integral part of the reasoning leading up to the decision of any of those cases These observations therefore though entitled to the greatest weight are in my humble opinion obiter and have not the same binding force as a decision rendered by the Court. This being the true position even if there were not before me the decision given in Karimbhai v. Hariprasad (supra) and the matter were res integra in the sense that there was no decision binding upon me I would have still felt myself free though with the greatest hesitation not to follow these observations and to prefer my own view on the subject. But in view of the fact that there is already a decision of a single Judge of this Court in Karimbhai v. Hariprasad (supra) though that single Judge be myself-which is binding upon me I do not have to consider whether I should follow these observations of the Division Bench or take my own view different from that taken obiter by the Division Bench for it is elementary that consistently with the rule which requires implicit obedience to judicial precedents I cannot follow these observations which are obiter in preference to the decision in Karimbhai v. Hariprasad. I am therefore of the opinion that the defendant in the present case could not be said to have complied with the requirements of sec. 12 (3) (b) by depositing in Court arrears of rent on the basis of the interim rent of Rs. 51. 00 per month even though such deposit was made by the defendant on or before the first date of hearing of the suit. ( 10 ) THERE is also another difficulty in the way of Mr. B. S. Trivedi in establishing that the defendant complied with the requirements of section 12 (3) (b) and was therefore entitled to protection from eviction. The difficulty arises because the defendant did not deposit in Court any amount in respect of costs of the suit right upto the date of the decree. The contention of Mr. B. S. Trivedi was that the obligation on the part of the defendant to deposit costs of the suit as a condition of being entitled to the benefit of the protection contained in sec. 12 (3) (b) could arise only if there was a direction by the Court and that since there was no such direction by the Court the defendant could not be regarded as not having complied with the requirements of sec. 12 (3) (b) if the defendant did not deposit costs of the suit in Court. It was also contended by Mr. B. S. Trivedi that costs of the suit in the present case were ultimately awarded in favour of the defendant and that the defendant could not therefore by not depositing costs of the suit in Court be said to have failed to comply with the requirements of sec. 12 (3) (b ). These were the two branches of the argument urged by Mr. 12 (3) (b ). These were the two branches of the argument urged by Mr. B. S. Trivedi in support of his contention that even though the defendant did not deposit costs of the suit in Court the defendant must still be regarded as having complied with the requirements of sec. 12 (3) (b ). Now the short answer to the argument in both its branches is provided by the decision of the Division Bench in Ambalal v. Babaldas (supra ). But even if it be contended that the argument in the present form was not advanced before the Division Bench in this case and that this decision cannot therefore be regarded as an authority binding me to take a view against the defendant it is to my mind clear that even on a plain and grammatical construction both the branches of the argument must fail and be rejected. ( 11 ) TURNING to the first head of the argument advanced by Mr. B. S. Trivedi I may at once state that it is not clear whether according to the decision of the Division Bench in Ambalal v. Babaldas (supra) sec. 12 casts any obligation on the tenant to apply to the Court for a direction as regards payment of costs of the suit in the sense that if he does not seek any such direction he cannot be said to have complied with the requirements of the section even though he might have deposited an amount sufficient to cover actual costs of the suit. But one thing is clear that it is open to the tenant to apply to the Court for determination of costs of the suit in order to enable him to pay or tender in Court costs of the suit and if on such application of the tenant the Court gives any direction regarding payment of costs of the suit the tenant must pay or tender in Court costs of the suit as directed by the Court in order to bring his case within sec. 12 (3) (b ). The tenant may however not apply for any direction regarding payment of costs of the suit by may deposit an amount which in his opinion would be sufficient to cover costs of the suit. 12 (3) (b ). The tenant may however not apply for any direction regarding payment of costs of the suit by may deposit an amount which in his opinion would be sufficient to cover costs of the suit. The tenant in such a case would of course run the risk of ultimately finding that the amount deposited by him ms not sufficient to cover actual costs of the suit but if the amount deposited in fact turns out to be sufficient to cover actual costs of the suit it is difficult to see why the tenant cannot be said to have complied with the condition of sec. 12 (3) (b) which requires payment of costs of the suit. The words as directed by the Court are in the nature of an adverbial clause and they can only mean that if there is a direction of the Court costs of the suit must be paid in accordance with such direction; but if there is no such direction the tenant must yet pay costs of the suit the only difference being that there should be no direction of the Court prescribing the amount or mode or manner of payment which would be required to be followed by the tenant in making such payment. I do not think that sec. 12 (3) (b) imposes any obligation on the tenant to apply to the Court for direction in regard to payment of costs. It is no doubt true that ordinarily it would be advisable for the tenant to make an application for direction in regard to pay ment of costs for otherwise costs of the suit being by their very nature incapable of precise determination until the suit is decided the tenant might run the risk of ultimately find that the amount deposited by him falls short of actual costs of the suit and thus losing the protection of sec. 12 (3) (b ). But I do not think it would be right to say that if he does not make such application to the Court for direction in regard to payment of costs of the suit he can never get the benefit of the protection contained in sec. 12 (3) (b ). 12 (3) (b ). But I do not think it would be right to say that if he does not make such application to the Court for direction in regard to payment of costs of the suit he can never get the benefit of the protection contained in sec. 12 (3) (b ). It must equally follow that the tenant cannot say that merely because there is no direction of the Court-which he has himself failed to obtain-there is no obligation on him to pay or deposit costs of the suit. Even if there is no direction of the Court in regard to payment of costs of the suit the tenant must yet deposit costs of the suit and if he does not do so he cannot claim the protection of sec. 12 The first head of the contention of Mr. B. S. Trivedi on this part of the case must therefore be rejected. ( 12 ) THE second head of argument of Mr. B. S. Trivedi must also fail since it is now clearly laid down by the decision of the Division Bench in Ambalal v. Babaldas (supra) that the tenant in order to be entitled to claim the benefit of the protection contained in sec. 12 (3) (b) must pay or tender in Court along with the arrears of standard rent costs of the suit on the first date of hearing of the suit or on or before such other date as may be fixed by the Court on the application of the tenant. This rule which according to the Division Bench is to be found in sec. 12 (3) (b) does not admit of any exception or qualification of the nature suggested by Mr. B. S. Trivedi. The Division Bench did not recognise any exception or qualification to this rule enacted in section 12 (3) (b) or confine its operation only to those cases where costs of the suit were ultimately awarded against the defendant. Of course it is no doubt true that no contention was advanced before the Division Bench that if costs of the suit were ultimately not awarded against the defendant the defendant could not be said to have failed to comply with the requirements of sec. Of course it is no doubt true that no contention was advanced before the Division Bench that if costs of the suit were ultimately not awarded against the defendant the defendant could not be said to have failed to comply with the requirements of sec. 12 (3) (b) by not depositing costs of the suit But if one only examines the matter a little closely it will be apparent that the intention that the obligation of the tenant to deposit costs of the suit on the first date of hearing of the suit or on or before such other dates as may be fixed by the Court is dependent on the ultimate award of costs is not only contrary to the plain language of the section but also contrary to the principle on which the section is founded. Sec 12 (3) (b) prescribes in terms clear and explicit that no decree for eviction shall be passed against the tenant if the tenant amongst other things pays costs of the suit as directed by the Court. The section therefore clearly contemplates payment of costs of the suit before a decree is passed. If costs of the suit are paid was directed by the Court if there is any direction to that effect no decree for eviction can be passed against the tenant. If on the other hand costs of the suit are not paid the tenant could not be said to have complied with the requirements of section 12 (3) (b) and in that event the tenant would not be entitled to claim the protection of section 12 (3) (b) and a decree for eviction would be liable to be passed against the tenant. If this be the correct position as I conceive it to be I do not see how the obligation to deposit costs of the suit can be dependent on the ultimate award of costs in the decree passed in the suit. As a matter of fact it is to my mind incomprehensible that in a case where the tenant ultimately succeeds on the ground that he has complied with the requirements of section 12 no costs of the suit should be awarded against the tenant. As a matter of fact it is to my mind incomprehensible that in a case where the tenant ultimately succeeds on the ground that he has complied with the requirements of section 12 no costs of the suit should be awarded against the tenant. But even if in any given case no order for costs of the suit is ultimately made against the tenant notwithstanding that he is given protection under section 12 (3) (b) I do not see how he can possibly have protection under that section unless he has deposited costs of the suit and thus fulfilled the necessary condition before he can claim protection under that section. The matter may also be considered from another angle. If costs of the suit are required to be deposited along with the arrears of standard rent only when such costs are ultimately awarded against the tenant it would be impossible for the tenant to decide whether such costs should be deposited by him or not in order to be able to claim the benefit of the protection contained in section 12 (3) (b) for he would not know whether such costs would be ultimately awarded against him and the question whether the tenant has complied with the requirements of section 12 (3) (b) would instead of being a question to be determined by the Court for the purpose of deciding whether a decree for eviction should or should not be passed against the tenant itself becomes dependent for its determination on what the Court ultimately decrees. Such a result would be illogical and absurd and I can safely conclude that the Legislature could never have intended such a result. The principle underlying section 12 (3) (b) also militates against the contention of Mr. B. S. Trivedi Section 12 (3) (b) is designed to give an opportunity to the tenant in default to make good the default and save himself from eviction. The tenant is protected from dispossession under section 12 (1) if he pays or is ready and willing to pay the amount of the standard rent and permitted increases. If therefore at the date of the suit the tenant has paid or is ready and willing to pay the amount of the standard rent and permitted increases the landlord would have no cause of action to file a suit for recovery of possession against the tenant. If therefore at the date of the suit the tenant has paid or is ready and willing to pay the amount of the standard rent and permitted increases the landlord would have no cause of action to file a suit for recovery of possession against the tenant. If however the tenant has not paid and is not ready and willing to pay the amount of the standard rent and permitted increases at the date of the suit the landlord would be entitled to recover possession from the tenant and would be justified in filing a suit for recovery of possession against the tenant. The tenant is however given a locus penitentiae even in such a case and the tenant can yet protect himself from dispossession by complying with the requirements of section 12 (3) (b ). When the tenant complies with the requirements of section 12 (3) (b) and protection is given by the Court to the tenant under that section it does not mean that the suit filed by the landlord against the tenant was not justified. As a matter of fact it becomes necessary for the tenant to invoke the protection under section 12 (3) (b) only when the tenant has lost the protection under section 12 (1) and the landlord has therefore become entitled to recover possession from the tenant. Though the tenant was in default at the date of the suit and the landlord was therefore entitled to file a suit for recovery of possession against the tenant and the suit was perfectly valid at the date when it was filed the tenant can defeat the suit by making various payments or deposits subsequent to the institution of the suit as provided by sec. 12 (3) (b ). It is for this reason that sec. 12 (3) (b) provides that the tenant must pay or deposit costs of the suit before the tenant can claim that no decree for eviction should be passed against him even though he was in default at the date of the suit and the landlord was therefore justified in filing the suit j against him. The suit having been occasioned by reason of the default of the tenant the tenant must pay costs of the suit before he can claim protection from eviction. The principle behind sec. The suit having been occasioned by reason of the default of the tenant the tenant must pay costs of the suit before he can claim protection from eviction. The principle behind sec. 12 (3) (b) draws its inspiration and analogy from the principle of relief against forfeiture and just as the tenant in order to be relieved against foreiture must pay costs of the suit which are thrown away by reason of his default in fulfilling his obligations under the contract of tenancy so also the tenant in order to claim the benefit of sec. 12 (3) (b) must pay costs of the suit which are thrown away by reason of his default in paying the amount of the standard rent and permitted increases. It is therefore clear that the tenant in order to be entitled to claim the protection of sec. 12 (3) (b) must deposit costs of the suit along with the arrears of standard rent and permitted increases and that the obligation to deposit costs of the suit as a condition of being entitled to the protection under sec. 12 (3) (b) cannot be dependent on the ultimate award of costs against the tenant. The correct view of the law seems to be that the tenant must deposit along with the amount of arrears of standard rent costs of the suit on the first date hearing of the suit and that the obligation of the tenant to deposit costs of suit is not dependent upon the ultimate award of costs against him and if ultimately the tenant succeeds on a ground other than that contained in sec. 12 (3) (b) and costs of the suit are not awarded against him he may apply to the Court to withdraw the amount of costs deposited by him; though as I have pointed out above if the tenant succeeds on the ground specified in sec. 12 (3) (b) costs of the suit would necessarily and always be awarded against him and there would not arise any question of his having to apply to the Court for withdrawing the amount of costs deposited by him. In this view of the matter the conclusion must inevitably follow that since the defendant did not deposit any amount in respect of costs of the suit the defendant could not be said to have complied with the requirements of sec. 12 (3) (b ). In this view of the matter the conclusion must inevitably follow that since the defendant did not deposit any amount in respect of costs of the suit the defendant could not be said to have complied with the requirements of sec. 12 (3) (b ). ( 13 ) BUT even if I am wrong in the view I have taken and the defendant on a true construction of the provisions of sec. 12 (3) (b) was entitled to deposit on or before the first date of hearing of the suit or on or before such other date as the Court might fix the arrears of rent on the basis of the interim rent specified by the Court under sec. 11 (3) and since costs of the suit were ultimately not awarded against the defendant the defendant was under no obligation to deposit costs of the suit along with the arrears of standard rent in order to be entitled to claim the protection of sec 12 (3) (b) the defendant could not yet claim to be entitled to the protection of sec. 12 (3) (b) since after first date of hearing of the suitthere being no application on behalf of the tenant to fix any subsequent date and there being in fact no fixation of such subsequent date by the Court the defendant did not regularly pay or deposit the amount of interim rent. The defendant was irregular in payment of interim rent for the month of April 1957 for instead of paying interim rent for the month of April in May 1957 the defendant paid such rent on 24th June 1957. The defendant was also similarly irregular in payment of interim rent for the months of June and July 1957 for rent for those months was deposited by the defendant on 10th September 1957. The defendant therefore in any event failed to comply with the requirements of sec. 12 (3) (b) and could not claim protection under that section. ( 14 ) THE next contention of Mr. B. S. Trivedi was that the learned Assistant Judge acted without jurisdiction or in any event illegally or with material irregularity in the exercise of his jurisdiction in altering the standard rent of the premises from Rs. 51. 00 per month to Rs. 70. 00 per month. ( 14 ) THE next contention of Mr. B. S. Trivedi was that the learned Assistant Judge acted without jurisdiction or in any event illegally or with material irregularity in the exercise of his jurisdiction in altering the standard rent of the premises from Rs. 51. 00 per month to Rs. 70. 00 per month. This contention was based on the plea of res judicata and it was developed in the following manner. The defendant made an application for fixation of standard rent on 5th January 1957 and the issue as regards the standard rent of the premises directly arose in such application. The same issue also arose directly in the present suit since the defendant prayed in the written statement that the standard rent of the premises be fixed by the Court and moreover the question whether the defendant complied with the requirements of sec. 12 (3) (b) could not be decided unless the issue as to what was the standard rent of the premises was first determined. The trial Court fixed the standard rent of the premises at Rs. 51. 00 per month and this determination of standard rent was made by the trial Court both in the suit and on the application of the defendant for fixation of standard rent. The plaintiff filed an appeal against the decree passed in the suit challenging the determination of the trial Court as regards the standard rent of the premises but did not file any Revision Application against the determination of the trial court on the application of the defendant for fixation of standard rent. The determination of the standard rent of the premises by the trial Court on the application of the defendant for fixation of standard rent therefore became res judicata and it was not open to the learned Assistant Judge hearing the appeal from the decree in the suit to alter such determination and the learned Assistant Judge therefor acted illegally or with material irregularity in increasing the standard rent from Rs. 51. 00per month to Rs. 70. 00 per month. This contention attractive though it may appear is however not open to Mr. B. S. Trivedi and the reason is quite simple. There was an application made by the defendant in the written statement for fixation of standard rent and an issue as regards standard rent therefore arose in the suit. 51. 00per month to Rs. 70. 00 per month. This contention attractive though it may appear is however not open to Mr. B. S. Trivedi and the reason is quite simple. There was an application made by the defendant in the written statement for fixation of standard rent and an issue as regards standard rent therefore arose in the suit. The standard rent was determined by the trial Court at 15 Rs. 51. 00 per month. Whether this determination also disposed of the application of the defendant for fixation of standard rent is another matter but one thing is clear that this determination was made by the trial Court in the suit. This determination in the suit was clearly appealable under sec. 29 of the Rent Act. Besides the trial Court also directed that a sum of Rs. 1030. 00 was due and payable by the defendant to the plaintiff as and by way of rent upto 28th February 1958 on the basis of the standard rent being Rs. 51. 00 per month and that the same should be paid to the plaintiff out of the amounts deposited by the defendant in Court. This part of the decree was also appealable since it adversely affected the plaintiff who claimed to be entitled to a larger amount on the basis of the standard rent being Rs. 70. 00 per month. The plaintiff therefore appealed. The appeal was allowed and the standard rent was increased by the learned Assistant Judge to Rs. 70. 00 per month and the learned Assistant Judge also directed that a sum of Rs. 2 30 was due and payable by the defendant to the plaintiff as rent upto 28th February 1958 on the basis of the standard rent being Rs. 70. 00 per month and that the same should be paid to the plaintiff out of the amounts deposited by the defendant in the Court. This part of the decree passed by the learned Assistant Judge was adverse to the defendant and if the defendant was aggrieved the defendant could have filed a Revision Application to challenge it but the defendant did not choose to do so. This part of the decree passed by the learned Assistant Judge was adverse to the defendant and if the defendant was aggrieved the defendant could have filed a Revision Application to challenge it but the defendant did not choose to do so. I do not see how under these circumstances the defendant can in the Revision Application preferred by the plaintiff against the decree passed by the learned Assistant Judge in so far as it is adverse to the plaintiff ask the Court to set aside the decree in so far as it is adverse to the defendant without preferring a Revision Application against it. It is in my opinion not open to the defendant in the absence of a complaint made in a Revision Application preferred against the decree of the learned Assistant Judge in so far it is adverse to the defendant to contend in the Revision Application preferred by the plaintiff that the adverse part of the decree was erroneously passed by the learned Assistant Judge. The decree passed by the learned Assistant Judge consisted of two parts one part being adverse to the plaintiff and the other part being adverse to the defendant. If the defendant did not challenge the part of the decree adverse to him by preferring a Revision Application that part of the decree must be regarded as having become final and the Revision Application of the plaintiff must be decided on the basis of the determination contained in that part of the decree. Here there is no question of supporting the judgment of the learned Assistant Judge on any ground available to the defendant. The determination of the standard rent of the premises by the learned Assistant Judge was adverse to the defendant and the defendant could have challenged the correctness of this determination by filing a Revision Application but the defendant did not choose to do so and a finality accordingly became attached to this determination and the defendant cannot now in the Revision Application preferred by the plaintiff challenge this determination under the guise of supporting the judgment of the learned Assistant Judge. If the defendant is allowed to agitate the question of standard rent under the guise of supporting the judgment of the learned Assistant Judge the result would be that the defendant would be enabled to attack the determination of standard rent at Rs. 70. If the defendant is allowed to agitate the question of standard rent under the guise of supporting the judgment of the learned Assistant Judge the result would be that the defendant would be enabled to attack the determination of standard rent at Rs. 70. 00 per month contained in the decree passed by the learned Assistant Judge-which is adverse to the defendant-without his having to file a Revision Application against it and the determination would be robbed of its finality. I am therefore of the opinion that in the present Revision Application preferred by the plaintiff the defendant cannot be allowed to contend that the learned Assistant Judge had no jurisdiction to alter the standard rent from Rs. 51. 00 per month to Rs. 70. 00 per month or that he acted illegally or with material irregularity in the exercise of his jurisdiction in doing so. Of course I may at once state that having regard to the observations of the Judicial Committee of the Privy Council in Jay Chand Lal v. Kamalaksha Chaudhary (76 Indian Appeals 131 at 142) it is now clear that the question of res judicata is a question affecting the jurisdiction of the Court and if notwithstanding the bar of res judicata the subordinate Court has exercised jurisdiction which having regard to the bar of res judicata it does not possess the High Court can interfere in revision under clause (a) of sec. 115 of the Code of Civil Procedure. If therefore the defendant had preferred a Revision Application against the determination of the standard rent of Rs. 70. 00 per month by the learned Assistant Judge it would have been open to me to consider whether there was any bar of res judicata which deprived the learned Assistant Judge of his jurisdiction to alter the standard rent from fits. 51/- per month to Rs. 70. 00per month and if I came to the conclusion that by reason of the bar of res judicata the learned Assistant Judge had no jurisdiction to alter the standard rent from Rs. 51. 00 per month to Rs. 70. 00 per month I could have interfered with the determination of the learned Assistant Judge under clause (a) of sec. 115 of the Code of Civil Procedure. 51. 00 per month to Rs. 70. 00 per month I could have interfered with the determination of the learned Assistant Judge under clause (a) of sec. 115 of the Code of Civil Procedure. But as I have pointed out above the defendant did not prefer a Revision Application challenging the determination of the learned Assistant Judge in regard to the standard rent of the premises and I cannot therefore consider the question whether the bar of res judicata precluded the learned Assistant Judge from increasing the standard rent from Rs. 51. 00 per month to Rs. 70. 00 per month. But even if it were open to the defendant to contend in this Revision Application preferred by the plaintiff that the learned Assistant Judge had no jurisdiction to disturb the standard rent fixed by the trial Court since the bar of res judicata operated to divest the learned Assistant Judge of his jurisdiction to do so the defendant would yet fail on this contention for in my opinion there is no substance in the plea of res judicata. In the first instance it does not appear as to what was the order actually made on the application of the defendant for fixation of standard rent and in the absence of such order the plea of res judicata cannot be sustained by the defendant for it is by virtue of such order that the defendant contends that the consideration of the standard rent of the premises by the learned Assistant Judge was barred by res judicata. Secondly even if a separate order was made by the trial Court on the application of the defendant for fixation of standard rent fixing the standard rent at Rs. 51. 00 per month such order cannot operate as res judicata. Mr. B. S. Trivedi frankly admitted that the application of the defendant for fixation of standard rent and the suit were both tried together and there was one judgment in both the proceedings and that was the judgment which was appealed against by the plaintiff before the learned Assistant Judge. If there was one trial and one judgment and that judgment was challenged in appeal before the learned Assistant Judge it is difficult to see how any plea of res judicata could be successfully advanced before the learned Assistant Judge to preclude the learned Assistant Judge from entertaining the appeal. If there was one trial and one judgment and that judgment was challenged in appeal before the learned Assistant Judge it is difficult to see how any plea of res judicata could be successfully advanced before the learned Assistant Judge to preclude the learned Assistant Judge from entertaining the appeal. It may be that a separate order was passed on the application of the defendant for fixation of standard rent fixing the standard rent of the premises at Rs. 51. 00 per month but it must be remembered that the doctrine of res judicata is based on estoppel by judgment and not estoppel by decree or order. What constitutes res judicata is not the decree or order but the decision express or implied of the matter in controversy. It is the judgment which creates the estoppel constituting the plea of res Judicata and if that be the correct position in law there can be no plea of res Judicata founded on a judgment so as to bar the consideration of an appeal when the appeal is directed against the judgment itself. The plea of res judicata in the present case was founded on the determination of the standard rent by the trial Court on the application of the defendant for fixation of standard rent but this determination was made by the same judgment which the plaintiff challenged in appeal before the learned Assistant Judge. When the judgment determining the standard rent of the premises at Rs. 51. 00 per month was challenged in the appeal preferred by the plaintiff I do not see how any objection to the appeal could be raised on the ground that the consideration of the issues involved in the appeal was barred by res judicata by reason of that very judgment which was under appeal. The effect of accepting such plea would be to permit the judgment to stifle the appeal against it. The result would not only be absurd and illogical but it would also strike at the fundamental principle underlying the doctrine of res judicata that an issue must be once fairly and finally decided by a competent Court and after this has been done all further litigation about it should cease for ever between the parties. The maxim is that no one shall be vexed twice over the same matter. The maxim is that no one shall be vexed twice over the same matter. This pre-supposes that an issue must be once fairly and finally decided and then only it can operate as res judicata so as to pre vent the successful party from being vexed twice over the same matter. Where there has been in substance as well as in form but one trial and one judgment it would be in my opinion a travesty ( 15 ) OF justice to stifle the hearing of an appeal against such a judgment on the ground that the findings contained in it operate as res judicata. In such a case there would be no question of the successful party being vexed twice over the same matter nor would the hearing of the appeal in any way militate against any rule of public policy which requires that there must be an end of litigation. I am therefore of the opinion that in a case such as the present where there are two proceedings involving a common issue and they are tried together and disposed of by a single judgment even though there may be two separate decrees or orders passed an appeal preferred against one decree or order cannot be barred by res judicata on the ground that the other decree or order has not been appealed against. The estoppel being created only by the judgment and not by the decree or order and the judgment being appealed against the appeal cannot be successfully met by the plea of res judicata founded on the judgment. This view which I am inclined to take is wholly supported by a very careful and well-reasoned judgment of a Full Bench of the Lahore High Court in Mt. Lachhmi v. Mt. Bhulli (A. I. R. 1927 Lahore 289 ). I may say with the greatest respect to the learned Judges constituting the full Bench that I find myself in entire agreement with the line of reasoning adopted in the leading judgment of Tek Chand J. This view also receives considerable support from the observations of the Supreme Court in Narhari v. Shanker (A. I. R. 1953 S. C. 419 ). Of course in that case there was only one suit but two separate appeals were brought by two different sets of defendants from the decree of the trial Court which was in favour of the plaintiff. Of course in that case there was only one suit but two separate appeals were brought by two different sets of defendants from the decree of the trial Court which was in favour of the plaintiff. The appellate Court allowed both the appeals and dismissed the plaintiffs suit by one judgment and ordered a copy of the judgment to be placed on the file of the other appeal. On the basis of this judgment two decrees were prepared by the appellate Court. The plaintiff preferred two appeals but one of the appeals was time-barred and it was therefore contended on behalf of the defendants in the other appeal that such other appeal must also be dismissed on the principle of res judicata. The High Court accepted the plea of res judicata and dismissed the appeal which was within time along with the appeal which was beyond time. On the matter being carried in appeal the Supreme Court observed that since there was one suit and both the decrees were in the same case and based on the same judgment and the matter decided concerned the entire suit the principle of res judicata did not apply. There were of course in the present case two original proceedings and it may therefore be contended that the decision of the Supreme Court should not be considered applicable. But I do not see why the principle underlying the decision of the Supreme Court should not equally apply where there are two original proceedings which are disposed of by a single judgment. As a matter of fact while dealing with this question the Supreme Court made the following observations which must be regarded as concluding the question beyond controversy even in a case where two suits or original proceedings are disposed of by a single judgment and an appeal is preferred in one proceeding but not in the other:. . . THERE is also a later decision of the Judicial Committee of the State in Bansilal v. Mohanlal 33 Deccan L R. 603 where the well-known and exhaustive authority of the Lahore High Court in Mst Lachhmi v. Mst. Bhulli A. I. R. 1927 Lah. 289 was followed. . . THERE is also a later decision of the Judicial Committee of the State in Bansilal v. Mohanlal 33 Deccan L R. 603 where the well-known and exhaustive authority of the Lahore High Court in Mst Lachhmi v. Mst. Bhulli A. I. R. 1927 Lah. 289 was followed. In the Lahore case there were two cross suits about the same subject matter filed simultaneously between the same parties whereas in the present case there was only one suit and one judgment was given by the trial Court and even in the first appeal to the Sadar Adalat there was only one judgment in spite of there being two appeals by the two sets of defendants. The plaintiffs in their appeal to the High Court have impleaded all the defendants as respondents and their prayer covers both the appeals and they have said consolidated court-fee for the whole suit. It is now well settled that where there has seen one trial one finding and one decision there need not be two appeals even though two decrees may have been draw up. As has been observed by Tek Chand. J. in his learned judgment in A. I. R. 1927 Lah. 289 mentioned above the determining factor is not the decree but the matter in controversy. As he puts it laser in his judgment the estoppel is not created by the decree but it can only be created by the judgment. . . . ( 16 ) IN this view of the matter the present contention of Mr. B. S. Trivedi based on the plea of res judicata must fail. ( 17 ) THE last contention urged by Mr. B S. Trivedi was that the standard rent of the premises had been erroneously fixed by the learned Assistant Judge at Rs. 70. 00 per month. This contention is also no longer open to the defendant in this Revision Application preferred by the plaintiff since the defendant has not challenged this determination by filing a Revision Application against the same. I have already discussed this aspect of the matter at length while dealing with the contention of Mr. B. S. Trivedi based on the plea of res Judicata and I need not repeat what I have there stated. I have already discussed this aspect of the matter at length while dealing with the contention of Mr. B. S. Trivedi based on the plea of res Judicata and I need not repeat what I have there stated. But even if it were open to the defendant to contend in this Revision Application that the standard rent of the premises was wrongly fixed at Rs. 70. 00 per month and that the determination of the standard rent by the trial Court at Rs. 51. 00 per month was correct I do not think the contention would be justified. The learned Assistant Judge has given reasons for coming to the conclusion that the standard rent of the premises was Rs. 70. 00 per month and the reasons given by him are valid and proper and I do not see any reason to interfere with the same. ( 18 ) THESE were all the contentions urged before me by Mr. B. S. Trivedi on behalf of the defendant. There is no substance in these contentions and since in the view I have taken the defendant could not be said to be ready and willing to pay the amount of the standard rent and permitted increases at the date of the suit and the defendant did not comply with the requirements of sec. 12 (3) (b) a decree for eviction must go against the defendant. I therefore allow the Revision Application set aside the decree of dismissal passed by the trial Court and confirmed by the learned Assistant Judge and pass a decree for eviction against the defendant. The defendant will hand over vacant and peaceful possession of the premises to the plaintiff within four months from to-day. There will be no order as to costs of the Revision Application. Application allowed. .