J. M. SHETH, J. ( 1 ) THIS is a revision petition filed by the petitioner (defendant-tenant) against the judgment and decree passed by the learned District Judge Rajkot in Civil Appeal No 49 of 1966 which confirmed the judgment and decree passed in Civil Suit No. 488 of 1964 of the Court of the Joint Civil Judge Junior Division Rajkot. ( 2 ) MR. Suresh M. Shah appearing for the petitioner urged that the Courts below had committed an error of law in passing the decree for eviction. It is urged by him that the consequence of non-compliance with the order passed in the Miscellaneous application at the most would entail the dismissal of that application for fixing the standard rent. Submission is that in the consequence referred to in sub-sec. (3) of sec. 11 of the Act a tenant who has been given notice in regard to arrears of rent for a period over six months as contemplated by sec. 12 (2) of the Act is entitled to protection even though he has committed such a default if he satisfies the conditions of sec. 12 (3) (b) of the Act if the case does not fall under sec. 12 (3) (a) of the Act. Admittedly in the instant case there was a dispute between the parties regarding the standard rent and the tenant had filed an application for fixation of the standard rent under sec. 11 of the Act prior to the expiry of the period of one month after the receipt of the notice. It is therefore an admitted position that the present case does not fall within sec. 12 (3) (a) of the Act. Sec. 12 (3) (b) of the Act material for our purposes reads:-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 dates 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 tender in Court regularly such rent and permitted increases till the suit is finally decided and also pays costs of the suit as directed by the Court. Explanation to sec. Explanation to sec. 12 of the Act reads:-IN any case where there is a dispute as to the amount of standard rent or permitted increases recoverable under this Act the tenant shall be deemed to be ready and willing to pay such amount if before the expiry of the period of one month after notice referred to in sub-sec. (2) he makes an application to the Court under subsec. (3) of sec. 11 and thereafter pays or tenders the amount of rent or permitted increases specified in the order made by the Court. Submission made by Mr. Shah is that this explanation lays down a rule of evidence. If the petitioner has been able to show that she has satisfied the conditions referred to in this explanation there would be conclusive presumption that the tenant is ready and willing to pay the arrears of rent at the date of the decree for eviction. That by itself submitted Mr. Shah would not justify the Court to hold that this readiness and willingness to pay the rent due cannot be proved by other modes. Submission made by Mr. Shah is that in case this petitioner is not entitled to get the benefit of this explanations if the Court finds that she has not complied with the order passed in the aforesaid miscellaneous application she is still entitled to claim protection independently of it in view of the provisions of sec. 12 (3) (b) of the Act. That section provides an additional opportunity to the tenant to claim protection if the tenant satisfies the conditions referred to therein. It is further submitted that the protection given by the Legislature to the tenant by the provisions of sec. 12 (3) of the Act would be illusory if the Court does not fix any other rate directing the tenant to pay the standard rent and permitted increases then due if the tenant has not paid or tendered such rent on the first day of the hearing of the suit. It is urged by him that till the Court determines the standard rent fixing of such dates would be ineffectual. Such dates could be fixed only after the standard rent is determined by the Court. It is urged by him that till the Court determines the standard rent fixing of such dates would be ineffectual. Such dates could be fixed only after the standard rent is determined by the Court. The Legislature therefore contemplated that question regarding the standard rent should be determined at an initial stage and the Court should fix other date directing the tenant to pay such arrears of standard rent. It is obligatory upon the Court to fix such date to see that this protection given by the Legislature to the tenant does not become illusory. In the instant case the standard rent has been fixed by the trial Court at Rs. 8/per month which is the agreed rent at the time of the judgment and no such date was fixed directing the tenant to pay these arrears. Whatever deficit was there the tenant deposited it in the appellate Court. The tenant was therefore entitled to protection under the Act and no decree for eviction could be passed. He invited my attention to several decisions of this Court as well as the decisions of the Supreme Court to which I will make reference at an appropriate stage. ( 3 ) IN reply to these arguments Mr. Chhaya appearing for Mr. Nanavati for the opponent urged that there was no such absolute rule imposing an obligation upon the Court to fix such date regardless of the facts and circumstances of the case. In the instant case the tenant had an opportunity to pay the arrears as directed by the Court in the miscellaneous proceeding and to deposit the interim rent fixed at Rs. 5/per month on or before the 5th of every month as directed by the Court. She has not complied with that order. It is indicative of the position that this tenant was not ready and willing to pay the amount of standard rent due. It is not only that she did not comply with this order in that proceeding but she did not deposit the arrears of rent on the basis of Rs. 5/due even at the time of the first hearing of the suit. Even upto the disposal of the suit she did not deposit sufficient amount to cover up the rent due even on the basis of the interim rent fixed apart from the rent claimed or the rent due on the basis of Rs. 5/due even at the time of the first hearing of the suit. Even upto the disposal of the suit she did not deposit sufficient amount to cover up the rent due even on the basis of the interim rent fixed apart from the rent claimed or the rent due on the basis of Rs. 8/per month the standard rent fixed. On the facts and circumstances of the case the Courts below were fully justified in coming to the conclusion that this tenant was not entitled to protection under sec. 12 (3) (b) of the Act. ( 4 ) TO appreciate the rival contentions urged at the Bar and before I advert to the authorities cited at the Bar it will be necessary to note a few facts in brief. ( 5 ) THE notice Ex. 27 is dated 27th July 1964 The tenant was called upon to pay Rs. 472. 65 paise the rent due upto 31st July 1964 Miscellaneous Application No. 174 of 1964 was filed by the tenant on 26 The order for depositing the arrears from 15-7-1963 upto the date of the order and to deposit Rs. 5 interim rent fixed every month on or before 5th of the month was passed on 27th August 1964 The landlord claimed that the rent was due from 1-9-1959 arid that has been found to be true by the two Courts below. Even on the basis of the aforesaid order dated 27th August 1964 passed in the miscellaneous proceeding the rent would be due for 13 months which would come to Rs. 65. 00. The tenant had only deposited Rs. 40/on 28-6-1964. On 16-10-1964 she deposited a further sum of Rs. 70/and on 1-12-1964 a sum of Rs. 30. 00. These facts are not in dispute. It is thus evident that the tenant did not deposit sufficient amount to cover up the arrears as ordered in the miscellaneous application. She did not deposit regularly rent of Rs. 5/per month on or before 5th of every month as directed. It is thus an undisputed fact this tenant had not complied with the order in question and had committed breach in two respects as stated above. There is no doubt that the non-compliance with that order would entail the dismissal of that application as contemplated by sec. 11 (3) of the Act. It is thus an undisputed fact this tenant had not complied with the order in question and had committed breach in two respects as stated above. There is no doubt that the non-compliance with that order would entail the dismissal of that application as contemplated by sec. 11 (3) of the Act. The material part of it reads:-IF the tenant fails to deposit such amount his application shall be dismissed. Such an order has been passed by the trial Court on the miscellaneous application on the date the trial Court pronounced the judgment and passed the decree in question. It is not in dispute that the first date of hearing of the suit was 2nd July 1966 the date when the issues were settled in the suit. It is borne out by the record that on this date of the first hearing of the suit tenant had not deposited the standard rent then due. The total amount deposited upto that date was falling date of the amount that would be payable even on the basis of the interim rent fixed. It is also an undisputed fact that even taking into consideration the amounts deposited during the pendency of the suit the aggregate amount did not cover up the amount payable even on the basis of the interim rent fixed viz. Rs. 5/per month much less sufficient to cover up the amount payable on the basis of the standard rent fixed by the Court It is an undisputed fact that the tenant did not make any application requesting the Court to fix the standard rent earlier to enable her to deposit the amount. She remained silent throughout the proceeding and did not move the Court for fixing the standard rent earlier to enable her to deposit the amount. It was only after the judgment and decree were passed by the trial Court in suit she deposited a sum of Rs. 450/and thereafter it is stated that she deposited the rent as directed by the Court while granting the stay order in the appeal ( 6 ) IT is on these facts and circumstances of the case question arises for consideration whether the Legislature has imposed an absolute obligation on the Court to fix such a date to enable the petitioner to deposit the standard rent due to enable her to get protection under sec. 12 (3) (b) of the Act. 12 (3) (b) of the Act. ( 7 ) THERE is no dispute regarding the proposition that the Court could fix such a date even subsequent to the date of the first day of the hearing of the suit and that may be at the instance of the tenant or at the instance of the landlord or suo motu. This question is resolved by the decision of a Division Bench of this Court in Sureshchandra Bhulabhai Jariwala v. Maganlal Lallubhai VIII Gujarat Law Reporter 1003. Bhagwati J. (as he then was) speaking for the Division Bench observed: -. . . . . THE order fixing such date may be passed at any time whether on or before or subsequent to the first day of hearing of the suit and such order may be passed on the application of the tenant or the landlord or even suo motu. ( 8 ) IN Ratilal v. Ranchhodbhai IX Gujarat Law Reporter 48 the same Division Bench has observed:-THE expression till the suit is finality decided refers to the decision of the suit in appeal by the appellate Court. . . . . the appellate court would have to consider whether the tenant has after paying or tendering in Court the arrears of standard rent and permitted increases on the first day of hearing of the suit or on or before such other date as might have been fixed by the Court continued to pay or tender in Court regularly the standard rent and permitted increases till the decision of the appeal. . . . . . if the standard rent is enhanced by the appellate Court. . . . . . the appellate Court must in the exercise of its discretion fix a date for payment of the difference by the tenant so that by making payment of the difference on or before such date the tenant may qualify for the protection of sec. 12 (3) (b ). . . . . . the appellate Court must in the exercise of its discretion fix a date for payment of the difference by the tenant so that by making payment of the difference on or before such date the tenant may qualify for the protection of sec. 12 (3) (b ). The Court can fix such other date suo motu and in a case where a tenant has regularly deposited in Court standard rent and permitted increases according to the rate determined by the trial Court the appellate Court if it enhances the standard rent must suo motu in the exercise of its discretion fix a date for payment of the standard rent then due according to the enhanced rate and if the tenant makes payment of the same on or before such date the tenant must be given the protection of sec. 12 (3) (b) and no decree for eviction can go against him. It is significant to note that the ratio of this decision is that an opportunity must be given by the appellate Court if it has enhanced the standard rent to such tenant to pay the difference in the amount. No such absolute rule as has been contended by Mr. Shah has been laid down in this decision. It was with a view to do justice between the parties that the Division Bench has laid down the ratio that in these circumstances when the appellate Court enhances the standard rent the tenant should be given an opportunity by fixing the date suo motu to enable the tenant to pay or tender the difference in the amount determined by the trial Court and the appellate Court. ( 9 ) IN support of his argument regarding absolute obligation imposed upon the Court to fix other date Mr. Shah has laid considerable emphasis on the decision of a single Judge of this Court in Harnamsing Lalsing v. Gangaram Itchharam IX Gujarat Law Reporter 323. The relevant observations made by J. B. Mehta J. are where there is a dispute about the standard rent the tenant would not be in a position to pay or tender the standard rent on the first date of hearing and fixing of another date by the Court for payment or tender would be ineffective until the standard rent is fixed. In the absence of the Court acting suo motu to regularise payments or by fixing some other date for payment the tenant would never be able to claim protection of sec. 12 (3) (b) as the first hearing date had already gone and subsequent payments could not be under an order of the Court. . . . . . Where the Count postpones resolutions of the standard rent dispute till the date of the judgment there would be no opportunity for the tenant to comply with sec. 12 (3) (b) until the Court fixed the standard rent in its judgment. Therefore in such cases when the Court fixed the amount of standard rent whether at an earlier stage on the tenants the issue it must consider this relevant question to regularise the payments made by the tenant after the date of hearing if the amount paid comes up to the amount the difference. The law imposes a fetter on the power of the Court to pass a decree for eviction without considering whether the tenant was protected under sec. 12 (3) (b ). When the benefit of sec. 12 (3) (b) could be only availed of if the Court fixes the amount of the standard rent it becomes the mandatory duty of the Court to exercise the aforesaid power suo motu so that the benefit of the sec. 12 (3) (b) is not rendered illusory. Mr. Shah has laid considerable emphasis on these latter observations marked by me in support of his argument that in all cases irrespective of any circumstances the Court is bound to fix such a dated to enable the tenant to deposit the standard rent fixed then due or to extend time for making good the difference In the instant case neither the trial Court nor the appellate Court has fixed any such date and eventually there has been an error of law in passing a decree for eviction. It results in taking away this additional protection given to the tenant under sec. 12 (3) (b) of the Act by the Legislature. I need not refer to this judgment in detail as there is a later decision of a Division Bench of this Court on this point in Nanji Pancha v. Daulal Naraindas XI Gujarat Law Reporter 285. It results in taking away this additional protection given to the tenant under sec. 12 (3) (b) of the Act by the Legislature. I need not refer to this judgment in detail as there is a later decision of a Division Bench of this Court on this point in Nanji Pancha v. Daulal Naraindas XI Gujarat Law Reporter 285. J. B. Mehta J. is a party to that decision and he has made certain pertinent observations speaking for the decision Bench which I will refer at an appropriate stage. Before I advert to that decision I propose first to refer to two decisions of the Supreme Court which in my opinion are material for deciding the question posed before me. ( 10 ) IN Vora Abbasbhai Alimahomed v. Haji Gulamnabi Haji Safibhai V Gujarat Law Reporter 55 it has been observed by the Supreme Court :-BY an order made under sub-sec. (3) of sec. 11 of the Bombay Rents Hotel and Lodging House Rates Control Act the Court merely specifies the amount of rent payable pending the determination of standard rent the Court thereby does not fix standard rent within the meaning of sec. 5 (10-A) (iv) of the Act. What the tenant has to pay or tender in Court to comply with the conditions of sec. 12 (3) (b) is standard rent and permitted increases and the Court has under clause (b) sub-sec. (1) merely the power to fix the date of payment or tender and not the rate at which the standard rent is to be paid. Power to fix the standard rent of premises is exercisable under sec. 11 (1) alone. To bring his claim within sec. 12 (3) (b) the tenant must pay or tender the standard rent and permitted increases on or before the first day of hearing or on or before such other date as the Court fixes and also costs of the suit as may be directed by the Court. Where there is a dispute as to the standard rent. the tenant would not be in a position to pay or tender the standard rent on the first day of hearing and fixing of another date by the Court for payment or tender would be ineffectual until the standard rent is fixed. Where there is a dispute as to the standard rent. the tenant would not be in a position to pay or tender the standard rent on the first day of hearing and fixing of another date by the Court for payment or tender would be ineffectual until the standard rent is fixed. The Court would in such a case on the application of the tenant take up the dispute as to the standard rent in the first instance and having fixed the standard rent. call upon the tenant to pay or tender such standard rent so fixed on or before a date fixed. If the tenant pays the standard rent fixed on or before the date specified and continues to pay or tender it regularity till the suit is finally decided he qualifies for the protection of clause 3 (b ). If in an appeal filed against the decree the standard rent is enhanced the appeal Court may fix a date for payment of the difference and if on or before that date the difference is paid the requirement of sec. 12 (3) (b) would be complied with. These observations made by the Supreme Court indicate that the Court would in such a case on the application of the tenant take up the dispute as to standard rent in the first instance and having fixed the standard rent call upon the tenant to pay or tender such standard rent so fixed on or before the date fixed. It is evident that in the instant case the tenant who had not complied with the order passed regarding depositing of the interim rent etc. in the Court did not throughout the trial make any such application requesting the Court to take up the dispute as to standard rent in the first instance. ( 11 ) THE further observations made in the aforesaid decision are:-THE explanation to sec. 12 (4) of the Act enacts a rule of evidence. If after service of the notice upon the tenant by the landlord under sub-sec. (2) of sec. 12 the tenant makes an application under sub-sec. (2) of sec. ( 11 ) THE further observations made in the aforesaid decision are:-THE explanation to sec. 12 (4) of the Act enacts a rule of evidence. If after service of the notice upon the tenant by the landlord under sub-sec. (2) of sec. 12 the tenant makes an application under sub-sec. (2) of sec. 11 before the expiry of a month and thereafter pays or tenders regularly the amount of interim rent specified by the Court till the disposal of the suit the Court is bound to presume that the tenant is at the date of the decree ready and willing to pay the standard rent and permitted increases. In the instant case this also has not been done by the tenant. It is therefore evident that it cannot be presumed in the instant case that the tenant was at the date of the decree ready and willing to pay the standard rent and permitted increases. ( 12 ) IT is further observed:-SEC. 12 (3) (b) of the Act requires the tenant to pay the standard rent and not the interim rent and for the purpose of that clause the expression standard rent may not be equated with interim rent specified under sec. 11 (3 ). Compliance with an order for payment of interim rent is made by the Explanation to sec. 12 conclusive evidence of the readiness and willingness to pay the standard rent but that by itself is not a ground for holding that the interim rent which may be specified under subsec. (3) of sec. 11 is standard rent fixed under sub-sec. (1) of sec. 11. These observations made by the Supreme Court would indicate that even if the tenant had complied with the order passed in miscellaneous proceeding regarding depositing of arrears on the basis of interim rent fixed and the interim rent had been paid regularly on the specified date as directed. that by itself would not have been sufficient to claim protection under sec. 12 (3) of the Act as the interim rent cannot be equated with the standard rent. that by itself would not have been sufficient to claim protection under sec. 12 (3) of the Act as the interim rent cannot be equated with the standard rent. ( 13 ) THE relevant observations made by the Supreme Court at pages 62 and 63 in paras 12 to 15 are:-IT is true that the statute requires the tenant to pay or tender in Court standard rent at the rate which may still remain to be fixed by order of the Court-such order itself being liable to be varied or modified by an order of a superior Court. But that is not a ground for departing from the definition supplied by the statute. The Legislature has prescribed conditions on which the tenant may qualify for protection of his occupation and one of the important conditions is the readiness and willingness to pay the standard rent and permitted increases which may be proved by obtaining an order of the Court fixing the rate of standard rent and complying therewith or by complying with the Explanation to sec. 12 or otherwise. These pertinent observations made by the Supreme Court in my opinion pin-point as to how this question could be resolved. It states that the tenant may qualify for protection of his occupation which is to be done by proving his readiness and willingness to pay the standard rent and permitted increases. That could be proved:- (1) by obtaining the order of the Court fixing the rate of the standard rent and complying therewith or (2) by complying with the Explanation to sec. 12 or otherwise. In the instant case no such order was obtained by the tenant and hence the question of her compliance with it did not arise. She also did not prove her readiness and willingness by complying with the explanation to sec. 12 or otherwise. On the contrary she did not comply with the order passed in the miscellaneous proceeding though to lend colour to her version she had prayed for an order regarding interim rent etc. ( 14 ) IT is observed further in the aforesaid Supreme Court decision:-THE District Court was apparently in error in assuming that by tendering in Court at the rate specified in the order dated February 14 1957 the requirement of sec. 12 (3) (b) regarding payment or tender of standard rent was satisfied. Standard rent for the purpose of sec. ( 14 ) IT is observed further in the aforesaid Supreme Court decision:-THE District Court was apparently in error in assuming that by tendering in Court at the rate specified in the order dated February 14 1957 the requirement of sec. 12 (3) (b) regarding payment or tender of standard rent was satisfied. Standard rent for the purpose of sec. 12 (3) (b) is such rent is already determined or may be finally determined under sec. 11 (1 ). But it turned out that the amount deposited by the defendant pursuant to the order of the Court was not less than the amount fixed by the trial Court. It is true that the defendant did not continue to pay rent regularly till the suit was finally decided and that deprived him of the protection under sec. 12 (3) (b ). The District Court enhanced the standard rent to Rs. 70/and directed adjustment of standard rent against the amount paid in Court. That Court it is true did not also strictly follow the requirements of law but the defect was technical. The Court should have before disposing of the appeal fixed a date for payment of the difference between the standard rent due and the amount actually deposited in Court. The District Court also held that the defendant had otherwise established his readiness and willingness to pay the standard rent. ( 15 ) AT page 64 His Lordship J. C. Shah summarised the conditions of sec. 12 of the Act in the following words:-SEC. 12 (1) does not affect the jurisdiction of the Court to entertain and decide a suit in ejectment against a tenant. It merely confers a protection upon a tenant if certain conditions are fulfilled and clauses (2) 3 3 and the Explanation deal with certain specific cases in which readiness and willingness to pay standard rent may either be presumed or regarded as proved. ( 16 ) IN Shah Dhansukhlal Chhaganlal v. Dalichand Virchand Shroff (Deceased) by his Legal Representatives IX Gujarat Law Reporter 159 the Supreme Court had to deal with the question arising under this very sec. 12 of the Act. Two points were raised before the Supreme Court:- (1) The provisions of see. 12 (1) of the Act were applicable throughout the hearing of the suit and down to the date of the final hearing. 12 of the Act. Two points were raised before the Supreme Court:- (1) The provisions of see. 12 (1) of the Act were applicable throughout the hearing of the suit and down to the date of the final hearing. If at that stage it was found that the defendant had paid up all arrears due from him he could not be ejected. (2) Even applying sec 12 (3) (b) there was no default on the part of the defendant which would render him liable to eviction. It is significant to note that appeal was filed by the defendant-tenant against whom a decree for eviction was passed on the ground of nonpayment of rent. After referring to sec. 12 of the Act at page 764 the pertinent observations made are:- it appears to us that there is no substance in the contention put forward on behalf of the appellant. Sec. 12 (1) must be read with the Explanation and so read it means that a tenant can only be considered to be ready and willing to pay if before the expiry of the period of one month after notice referred to in sub-sec. (2) he makes an application to the Court under sub-sec. (3) of sec. 11 and thereafter pays or tenders the amount of rent or permitted increases specified by the Court. We have 0 noted that the tenant made no payment within the period of one month of the notice of ejectment and although in his written statement he raised a dispute about the standard rent he made no application in terms of sec. 11 (3) of the Act. The readiness and willingness to pay has therefore to be judged in the light of the facts of the case. Where as here a suit is filed on the ground that the tenant was in arrears for a period of more than 6 months and although raising a dispute as to the standard rent or permitted increases recoverable under the Act the tenant makes no application in terms of sec. 11 (3) he cannot claim the protection of sec. 12 (1) by merely offering to pay or even paying all arrears due from him when the Court is about to pass a decree against him. 11 (3) he cannot claim the protection of sec. 12 (1) by merely offering to pay or even paying all arrears due from him when the Court is about to pass a decree against him. In Vora Abbasbhai Alimahomed v. Haji Gulamnabi Haji Safibhai (1964) 5 S. C. R. 157:- V G. L. R. 55) it was pointed out that sec. 12 (1) of the Act applied to a tenant who continued to remain in occupation even after the expiry of the contractual tenancy so long as he paid or was ready and willing to pay the amount of the standard rent and permitted increases. The protection was however available to a tenant subject to the provisions of sec. 13 and to the limitations contained in sec. 12 (2) and sec. 12 (3) (a) of the Act. . . . . . . . As already noted if sub-sec. 3 (a) is not attracted the tenant if he is in arrears cannot sit quiet and offer to pay all the amount due from him at the time of the hearing of the suit so as to get the protection of sec. 12 (1 ). To be within the protection of sub-sec. (1) where he raises a dispute about the standard rent payable he must make an application to the Court under sub-see. (3) of sec. 11 and thereafter pay or tender the amount of rent and permitted increases if any specified in the order made by the Court. If he does not approach the Court under sec. 11 (3) it is not open to him thereafter to claim the protection of sec. 12 (1 ). This decision of the Supreme Court clearly lays down the ratio that a tenant cannot claim protection under sec. 12 (1) of the Act by making an offer to pay or in paying the arrears due from him when the Court is about to pass a decree against him. He has to make an application in the Court under sub-sec. (3) of sec. 11 and thereafter pay or tender rent if any specified in the order made by the Court. If he does not approach the Court under sec. 11 (3) it is not open to him thereafter to claim the protection of sec. 12 (1) of the Act. He has to make an application in the Court under sub-sec. (3) of sec. 11 and thereafter pay or tender rent if any specified in the order made by the Court. If he does not approach the Court under sec. 11 (3) it is not open to him thereafter to claim the protection of sec. 12 (1) of the Act. In the instant case the petitioner - tenant did make such an application to the Court under sec. 11 (3) of the Act but she did not comply with the order as found above. She would not therefore be entitled to protection as per the decision of the Supreme Court. ( 17 ) IN para 13 at page 765 relevant facts have been noted. It is true that in this Supreme Court decision the question has not been examined from the point of view that till the standard rent is fixed by the Court the tenant would not be in a position to know as to what would be the amount of standard rent that would be payable and the further question whether the Court is bound to fix other date on or before or subsequent to the date of the hearing of the suit to enable the tenant to pay or tender such amount so that the protection given to the tenant may not become illusory and it may result in injustice to the parties. ( 18 ) THIS decision has been referred to by the Division Bench of this Court in Nanji Pancha v. Daulal Naraindas (Supra ). The previous decision of the Supreme Court in Vora Abbasbhai v. Haji Gulamnabi (Supra) has also been referred to. The relevant facts in the case which the Division Bench of this Court had to decide were:-THE contractual rent was Rs. 35/per month. As the defendant was in arrears of rent notice under sec. 12 (2) of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 was served by the plaintiff on the defendant on 15th December 1961 On 20th December 1961 the defendant-tenant made an application before the trial Court for fixation of the standard rent and for determining the interim rent which he should deposit in the Court. We order was however passed by the Court specifying the amount of the interim rent. We order was however passed by the Court specifying the amount of the interim rent. On 26th February 1967 the plaintiff filed the present suit for eviction on the grounds that the defendant was in arrears of rent to the tune of Rs. 161/for the period from 13th September 1961 to 31st January 1962 30 April 1962 defendant-tenant deposited Rs. 200/ which would cover standard rent till 8th May 1962 There was no further deposit till 3rd August 1962 when issues were framed. On 3rd August 1962 the total dues in respect of standard rent came to Rs. 266-66 ps while the deposit as afore said was Rs. 200/only. Thereafter the defendant continued to deposit the rent in Court and upto 9th April 1963 he had deposited a sum of Rs. 450. 00. There is no dispute that at the rate of this standard rent which is fixed by the trial Court at the time of the judgment the amount which was deposited was in excess of the amount due to the plaintiff. The trial Court however held that the defendant was in arrears at the date of the first hearing and so he had not complied with sec. 12 (3) (b) of the Act. . . . . . . . . . . . . . . . . . . In the other application it fixed the standard rent at Rs. 25/per month. The appellate Court however reversed this decree. The appellate Court also held that there was no obligation on the tenant to pay or deposit the amount of costs unless the Court had issued any direction. The appellate Court also held that it was well settled after the decision of the Supreme Court in Vora Abbasbhai v. Haji Gulamnabi V G. L. R. 55 that after the Court resolved the dispute about the standard rent it had to fix the date for depositing arrears of standard rent along with the costs of the suit and the decree of eviction could be passed only after the tenant failed to comply with the said order. As such an opportunity was not given to the tenant in question the decree for possession could not be sustained. As such an opportunity was not given to the tenant in question the decree for possession could not be sustained. The appellate Court also observed that in the present case the defendant had applied for fixation of standard rent and had applied to get the interim rent fixed and the only irregularity on his part was that he did not press his request for fixation of the interim rent before the suit proceeded for trial. Merely because of this irregularity however the Court could not refuse to exercise its discretion to regularise all these payments and as all the arrears of rent had been deposited before the suit was finally disposed of. The appellate Court has therefore reversed the decree of the trial Court. That decision was challenged before the Division Bench of this Court. In the context of these facts certain observations have been made to which I will make reference presently. ( 19 ) AT pages 288 and 289 in para 4 the Division Bench referred to the decision of a Division Bench of this Court in Ambalal v. Babaldas III Gujarat Law Reporter 625 and therefrom quoted certain observations made at page 646 of that report beginning with the para-The words in any other case mean in their ordinary connotation a case which does not fall under sub-sec. 3 (a)-and ending with the para But if he does not do any of these things he cannot get protection and it would seem that the Court has no jurisdiction to deny to the landlord the decree Jar possession. ( 20 ) AFTER referring to those observations the pertinent observations made are:-MR. Nanavati. vehemently relied upon the last line and he argued that if the tenant did not comply with the explanation by making an application under sec. 11 (3) for fixation of standard rent and paying the amount hereunder and if he failed to pay at the first hearing the Court would have no jurisdiction to deny to the landlord a decree for possession. Mr. 11 (3) for fixation of standard rent and paying the amount hereunder and if he failed to pay at the first hearing the Court would have no jurisdiction to deny to the landlord a decree for possession. Mr. Nanavati also relied on further observation of the Division Bench as under:- if there is a dispute with regard to the standard rent or permitted increases the tenant can resort to explanation and pay as directed thereunder 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-sec. 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. If he does none of these things it seems that the Court has no discretion in such a case to deny a decree to the landlord for possession. No discretion has been left to the Court under sub-sec. 3 (b) to refuse such a decree. Mr. Nanavati therefore argued that the appellate Court completely ignored these binding discretions in refusing decree to the landlord even when tenant did not do anything to claim protection as envisaged in this decision by bringing his case within the four corners of the Act. It is significant to note in that behalf the following observations made by the Division Bench:-IN the present case there is no dispute that immediately after the notice under sec. 12 (2) was received on 15th December 1961 the tenant made an application for fixation of the standard rent and also for fixation of interim rent to be paid by him on 20th December 1961 during the period of one month under sec. 11 (3 ). Mr. Nanavati argued that that would be compliance of the first condition of the explanations to sec. 12 If the tenant wanted to comply with both the conditions of the explanation. it was obligatory on his part to obtain an order from the Court fixing interim rent and to continue paying rent so fixed. 11 (3 ). Mr. Nanavati argued that that would be compliance of the first condition of the explanations to sec. 12 If the tenant wanted to comply with both the conditions of the explanation. it was obligatory on his part to obtain an order from the Court fixing interim rent and to continue paying rent so fixed. The Legislature having laid down a rule of evidence in this explanation for showing the readiness and willingness the tenant who seeks protection of the Act must get an order of fixation of interim rent in order to enable him to get this protection. Mr. Nanavati vehemently relied upon that part of the observations where the Division Bench held that if the tenant found that such an order of interim rent was not likely to be passed before the first date of the hearing he might ask for a subsequent date for such payment and if he did none of those things the Court had no discretion to deny the decree to the landlord. We cannot agree with this contentious of Mr. Nanavati that the explanation casts such an obligation on the tenant. The explanation only provides that within one month after the receipt of notice under sec. 12 (2) the tenant must apply to the Court under sec. 11 (3) and thereafter he must pay or tender the amount of rent or permitted increases as specified in the order made by the Court. If therefore the Court passes no order on his application for fixation of standard rent including payment of interim rent the tenant cannot be said to have failed to comply with the explanation. It is significant to note that in the case before me the Court did pass such an order fixing the interim rent and fixing the time for depositing the arrears from a particular date on the basis of the interim rent fixed and the tenant did not comply with that order. The present case therefore can be distinguished from the. case the Division Bench of this Court had to consider. . ( 21 ) THE Division Bench referring to the decision of the Supreme Court in Vora Abbasbhai v. Haji Gulamnabi (Supra) observed:-THEIR Lordships found that the statute imposes upon the tenant obligation to pay or deposit the amount of costs if the Court so directed and not otherwise. case the Division Bench of this Court had to consider. . ( 21 ) THE Division Bench referring to the decision of the Supreme Court in Vora Abbasbhai v. Haji Gulamnabi (Supra) observed:-THEIR Lordships found that the statute imposes upon the tenant obligation to pay or deposit the amount of costs if the Court so directed and not otherwise. In that view of the matter even for considering the compliance with the explanation to sec. 12 if the Court has not specified in the order under sec. 11 (3) the amount of interim rent to be paid or deposited by the tenant it cannot be held that the tenant has not complied With the explanation merely because he did nut press his request before the trial Court Mr. Nanavati argued that in that event the tenant who was claiming protection should have asked the Court to extend the time by fixing another date for payment as envisaged in the aforesaid observations of the Division Bench Those observations are obviously in the context of sec. 12 (3) (b ). Their Lordships of the Supreme Court in the aforesaid decision in Vora Abbasbhai v. Haji Gulamnabi V G. L. R. 55 at page 61 have pointed out the difficulties in the practical working of sec. 12 (3) (b ). Thereafter Their Lordships referred to the explanation in sec. 12 as enacting a rule of evidence and observed:- If after the service of notice upon the tenant by the landlord under sec. 12 (2) the tenant makes an application under sec. 11 (3) and thereafter pays or tenders the amount of rent or permitted increases specified in the order made by the Court till the disposal of the suit the Court is bound to presume that the tenant is at the date of the decree ready and willing to ply the standard rent and permitted increases. Their Lordships have therefore held that the compliance with the order for payment of the interim rent would under the explanation be conclusive evidence of readiness and willingness to pay the standard rent which would be fixed only under sec. 11 (1) of the Act and which was liable to be verified or modified as per the order of the Superior Court. 11 (1) of the Act and which was liable to be verified or modified as per the order of the Superior Court. Their Lordships also observed:- The Legislature had prescribed conditions on which the tenant might qualify for protection of his occupation and one of the important conditions was the readiness and willingness to pay the standard rent and permitted increases which might be proved by obtaining an order of the Court fixing the rate of standard rent and complying therewith or by complying with the explanation to sec. 12 or otherwise. From the portion which we have put in the italics it is apparent that in their Lordships view when there is a dispute as to the standard rent the tenant would not be in a position to pay or tender the standard rent on the first day of the hearing and fixing another date for payment or tender would be ineffectual until the standard rent is fixed. When therefore there is a dispute of standard rent which is resolved by the Court at the end because both the proceedings were consolidated at the request of the parties the tenant would not be in a position to pay or tender standard rent. Even the Court would not be in a position to fix another date because the fixing of such date would be infructuous until the standard rent was fixed on resolving the dispute in the final judgment. Their Lordships have no doubt pointed out that the Court could in such cases on application of the tenant take up the dispute as to the standard rent in the first instance and having fixed the standard rent call upon the tenant to pay up or tender the standard rent so fixed on or before the date specified. The relevant observations at page 292 material for our purposes are:-THUS the tenant has two opportunities either to comply with the explanation by getting the interim rent fixed by moving Court for that purpose or he may move the Court for resolving this dispute at the earlier date to enable him the necessary payment for complying with these statutory provisions. This question had arisen before the Division Bench consisting of Bhagwati J. (as he then was) and Bakshi J. in Sureshchandra v. Maganlal VII G. L. R 1003. At page 1009 the Division Bench disagreed with the view of our learned brother Raju. This question had arisen before the Division Bench consisting of Bhagwati J. (as he then was) and Bakshi J. in Sureshchandra v. Maganlal VII G. L. R 1003. At page 1009 the Division Bench disagreed with the view of our learned brother Raju. J. in Allanur v. Balchand Ill G L. R 182 and held that there was no reason to limit the plain and natural meaning of the words used in sec. 12 (3) (b) by introducing a requirement that the order fixing a date other than the first day of hearing of the suit can be made by the Court only on the application of the tenant made on or before the first day of hearing of the suit and that such application could be made even after first day of the hearing. The Division Bench further pointed out that such an application might be made by the tenant or the landlord of even the Court could suo motu extend the dale after the date of the first hearing. ( 22 ) THE two decisions in Ratilal v. Ranchhodbhai IX Gujarat Law Reporter 48 and Harnamsing Lalsingh v. Gangaram Ichharam IX Gujarat Law Reporter 323 referred to by me earlier have also been referred to herein. After referring to those decisions and the decision in C. S. P. and L. Corporation v. Kerala State A. I. R. 1965 Supreme Court 1689 at page 294 the following pertinent observations have been made:-THE Court must consider the fact that none need apply in vain. If the application was bound to be ineffective as observed by Their Lordships of the Supreme Court in Vora Abbasbhais case it would be obvious that where the Court postpones resolution of the dispute till the date of the judgment there would be no opportunity for the tenant to apply under sec. 12 (3) (b) until the Court fixes the standard re lt. Another well settled principle was that no litigant ever suffers by any mistake of the Court and so if the Court had postponed resolution of the standard rent dispute till the end the tenant could not be deprived of his statutory protection under sec. 12 (3) (b) merely on the ground of a technicality that he could have moved the Court earlier to resolve this dispute. 12 (3) (b) merely on the ground of a technicality that he could have moved the Court earlier to resolve this dispute. The Legislature has itself conferred discretion on the Court to meet with such a situation by providing that the Court might only in its discretion fix another date for payment and by arming it suitably to direct even costs being paid by the tenant. This discretion is therefore conferred on the Court for doing justice between the parties. The only material question which the Court must always keep in mind is the question of the readiness and willingness of the tenant to pay which must continue till the date of the decree. This readiness can be proved by the tenant by resorting to the explanation read with sec. 12 (1) or by obtaining order under sec. 11 (3) and complying with it or by complying with the provisions of sec. 12 (3) (b) or otherwise. Even if the tenant did not avail of the first opportunity within one month after the first notice under sec. 12 (2) in such a case where there was dispute about the standard rent he could show his willingness by complying with the explanation or even if he had not done that by showing that he had complied with sec. 12 (3) (b ). It is only in cases where there is a dispute of standard rent that the case presents practical difficulties as pointed out by their Lordships. Because sec. 12 (3) (b) by its very terms is incapable of compliance until the standard rent dispute is resolved. The whole contention of Mr. Nanavati is that the settled position of law envisages a further obligation on the tenant to apply for resolution of the standard rent dispute at an early stage for getting protection of sec. 12 (3) (b) even though there is nothing in the words of sec. 12 (3) (b) to justify any such construction. In view of the aforesaid Division Bench decisions it is clear that in all such cases the Court can fix another date not only on the application of the tenant but on the application of the landlord as well or even suo motu and even after the first date of hearing has passed. In view of the aforesaid Division Bench decisions it is clear that in all such cases the Court can fix another date not only on the application of the tenant but on the application of the landlord as well or even suo motu and even after the first date of hearing has passed. If however the Court has postponed the resolution of this dispute till all the issues are settled in the case the Court must consider the question about the exercise of its discretion which must be exercised in the light of special circumstances in the case so that no injustice is done to the tenant because this dispute was taken up at the end of the case and because the tenant was not in a position to comply with sec. 12 (3) (b) until the standard rent was fixed. At page 295 the pertinent observations made are:-IN certain cases the Court might have to consider whether it should fix another date for making good difference if it was otherwise satisfied of the tenants readiness and willingness to pay. The law however imposes a fetter on the power of the Court to pass a decree for eviction without considering this material question as to whether the tenant was protected under sec. 12 (3) (b ). If therefore benefit of sec. 12 (3) (b) could be availed of only after the Court fixes the standard rent it would be the mandatory duty of the Court to exercise its power suo motu so that the benefit of sec. 12 (3) (b) is not rendered illusory. Without applying its mind to this relevant question the Court cannot pass a decree for possession straight way on the mere assumption that sec. 12 (3) (b) was not complied with even though that the tenant was not in a position to comply with sec. 12 (3) (b ). In my opinion the observations which follow thereafter pin-point the real ratio of the decision of the Division Bench of this Court. They are:-THE question being one of discretion in proper cases the Court can refuse to fix another date for paying the deficit if that is the only way in which justice can be done as in cases where the Court would not be satisfied at all of the tenants readiness and willingness. They are:-THE question being one of discretion in proper cases the Court can refuse to fix another date for paying the deficit if that is the only way in which justice can be done as in cases where the Court would not be satisfied at all of the tenants readiness and willingness. These observations made in clear terms by the Division Bench of this Court clearly negative the contention raised by Mr. Shah that there is an absolute obligation cast upon the Court to fix another date and if the Court had not fixed any such date and the tenant had not got the opportunity to pay or tender the standard rent and permitted increases then due the protection given to the tenant would be illusory in all cases regardless of the circumstances of the case. In the instant case in the miscellaneous proceeding the interim rent was fixed and the tenant was directed to pay the arrears due from the date of the last receipt dated 15-7-1963 on or before 5-9-1964 and to pay rent every month on or before 5th of each month on the basis of interim rent fixed at Rs. 5. 00. She did not comply with that order. In view of the explanation and the Supreme Courts decision in Shah Dhansukhlal v. Shah Chhaganlal Dalichand (Supra) it could be said without any doubt that the tenant was not ready and willing to pay the standard rent and permitted increases then due. In these circumstances the Court would be justified in not giving protection to the tenant under sec. 12 (3) (b) of the Act and it would not be obligatory upon the Court to fix another date as has been urged by Mr. Shah. ( 23 ) IT is further observed by the Division Bench in the aforesaid decision at page 295:-THEREFORE we cannot agree with the broad proposition advanced by Mr. Nanavati that there is no power in the Court to proceed suo motu in such cases and that the ratio of the decision in Ambalals case or in Vora Abbasbhais case is that the tenant must apply for the earlier fixation of the date if he wants to get benefit of sec. 12 (3) (b) and if he failed to do so the Court is left with no discretion and that it must pass a decree for eviction. 12 (3) (b) and if he failed to do so the Court is left with no discretion and that it must pass a decree for eviction. In fact Ambalals case lays down general principles which are applicable to all cases where the tenants are in arrears of rent while this question assumes importance only in cases where there is a dispute about standard rent and the tenant is not in a position to comply with sec. 12 (3) (b) until the standard rent is fixed. It is in such cases that it would be a mere technicality to insist that the tenant must have moved the Court to resolve the dispute at an early stage. The Court must look to the question of doing substantial justice by satisfying itself as to whether it is a case where it must exercise discretion suo motu as it had postponed resolving the dispute about standard rent. till the decision of all the issues. In cases where only thing required is regularising payments made the Court would readily exercise its discretion While in other cases it can even order costs when it gives further time for making good the deficit in payments or it mar even totally refuse to exercise discretion. But in all cases the Court has to exercise discretion judicially on the facts and circumstances of the case These observations further support my conclusion that a discretion is vested in the Court to fix another date. It is not an absolute obligation on the Court to fix it. The wording of the relevant part of sec. 12 (3) (b) of the Act is indicative of that conclusion. The words used are:- On or before such other date as the Court may fix. The word may used in that phrase is indicative of that conclusion. If really the Legislature intended that the Court must fix such other date the Legislature would not have used the word may. The Division Bench of this Court in the aforesaid decision has in terms stated that the Court has to exercise discretion judicially on the facts-and circumstances of the case. In a given case it may even totally refuse to exercise the discretion. These observations made by the Division Bench negative the contention of Mr. The Division Bench of this Court in the aforesaid decision has in terms stated that the Court has to exercise discretion judicially on the facts-and circumstances of the case. In a given case it may even totally refuse to exercise the discretion. These observations made by the Division Bench negative the contention of Mr. Shah that it is obligatory on the Court to fix such date regardless of the facts and circumstances of the case and that having been not done the decree is not in accordance with-law. ( 24 ) THE latest decision of the Supreme Court in Shah Dhansukhlal v. Shah Chhaganlal Dalichand (Supra) was relied upon by Mr. Nanavati before the Division Bench of this Court in the aforesaid decision. That decision has been distinguished by the Division Bench observing. In that case their Lordships only negatived the contention based on the decision of their Lordships in Shah Bhojraj Kaur Oil Mills v. Subhash Chandra 1962 S. C. R. 159 that the provisions of sec. 12 (1) must be read along with the explanation. Therefore to be within the protection of sec. 12 (1) where the tenant raises dispute about the standard rent within one month of the service of the notice under sec. 12 (2) he must make application to the Court under sec. 11 (3) and thereafter pay or tender the amount of standard rent or permitted increases if any specified in the interim order made by the Court. Mr. Nanavati vehemently relied upon the further observations if he does not approach the Court under sec. 11 (3) it is not open to him thereafter to claim protection under sec. 12 (1 ). These observations of Their Lordships are only to be understood in the context of that case. Their Lordships however never meant to hold that even if the tenant made an application under sec. 11 (3) for fixation of standard rent and for fixing interim rent and if the Court did not specify any such amount the tenant must be held not to have complied with the explanation and that he was not within the protection of sec. 12 (1 ). Until interim rent was specified by the Court the tenant could not be said to have not complied with the explanation and sec. 12 (1) when read together. 12 (1 ). Until interim rent was specified by the Court the tenant could not be said to have not complied with the explanation and sec. 12 (1) when read together. In that case Their Lordships had in fact found that-the tenant did not make any application under sec. 11 (3) and therefore he was not-entitled to protection under sec. 12 (1 ). He was also not entitled to protection of sec. 12 (3) (b) as at the first date of hearing there were arrears and even subsequently the tenant failed to pay or tender any amount in the Court. In these circumstances Their Lordships held that the tenant was not ready and willing to pay. It is clear from this decision that no such principle has been laid down as contended by Mr. Nanavati that unless the tenant made an application asking the Court to resolve earlier the dispute about the standard rent the Court had no jurisdiction to exercise its discretion suo motu to fix the time after it resolved dispute even for regularising the payments. In fact this question was not before Their Lordships. In this view of the matter we cannot agree with any of the two contentions raised by Mr. Nanavati that the tenant in the present case had not complied with the explanation even though he made an application under sec. 11 (3) and when no amount of interim rent was fixed by the Court. Similarly also we cannot agree with him that under the settled law the Court has no jurisdiction to exercise discretion suo motu if the tenant did not move the Court at earlier stage to resolve the dispute of standard rent. Sitting as a single Judge I am bound by the decision of this Division Bench. Apart from it is significant to note that the emphasis in the ratio was that the Court should do complete justice to the parties and the litigants should not suffer on account of the mistake of the Court. It was found in view of the facts and circumstances of the case that it Was not possible for the tenant to comply with the conditions mentioned in the Explanation given to sec. 12 of the Act as the Court did not fix any interim rent as contemplated by sec. 11 (3) of the Act. It was found in view of the facts and circumstances of the case that it Was not possible for the tenant to comply with the conditions mentioned in the Explanation given to sec. 12 of the Act as the Court did not fix any interim rent as contemplated by sec. 11 (3) of the Act. In the instant case; the Court did fix the interim rent and directed the tenant to pay the rent regularly on or before 5th of every month. The tenant did not comply with it. It is therefore evident that explanation to sec. 12 of the Act would apply and its provisions could be pressed into service and it could be without any doubt said that the petitioner-tenant was not ready and willing to pay the rent due. It could not be said that it was not possible for her to comply with the order as no such order was passed as in the case the Division Bench had to decide. As said by me earlier the decision of the Supreme Court in Vora Abbasbhai v. Haji Gulamnabi (Supra) indicates a possibility that even such compliance by itself would not be sufficient. ( 25 ) IT cannot be gainsaid that there is some apparent conflict in the various decisions and it may be necessary to resolve that apparent conflict by referring to the various provisions of sec. 12 of the Act and consider the different sub-sections of sec. 12 of the Act and interpret them keeping in mind the legislative intent. In the instant case taking any view of the matter by following the aforesaid Supreme Court decision in Shah Dhansukhlal. Shah Chhaganlal Dalichand (supra) or by following the aforesaid decision of the Division Bench of this Court in Nanji Pancha v. Daulal (supra) there is no escape from the conclusion that this tenant cannot be said to be ready and willing to pay the standard rent. She is not entitled to protection under sec. 12 (3) (b) of the Act. Even on the basis of the interim rent fixed in - the miscellaneous proceeding she had not deposited the amount due at the date of the first hearing of the suit. She had also not deposited such amount during the pendency of the suit. She is not entitled to protection under sec. 12 (3) (b) of the Act. Even on the basis of the interim rent fixed in - the miscellaneous proceeding she had not deposited the amount due at the date of the first hearing of the suit. She had also not deposited such amount during the pendency of the suit. The two Courts below have therefore taking any view of the matter in my opinion come to the correct conclusion that the petitioner is not entitled to protection under sec. 12 of the Act and the decree for eviction could be passed against her on the ground of non-payment of rent. ( 26 ) ANOTHER argument advanced by Mr. Shah in regard to the validity of the notice was that this notice is bad as the provisions of sec. 12 (2) of the Act have not been substantially complied with; This argument was based on the ground that there was no specific demand of arrears of rent in the notice. What was mentioned in the notice was that particular amount of rent was due by the tenant to the landlord. It was further stated that the tenant having failed to pay the arrears of rent for a period over six months the landlord had become entitled to get a decree on the ground of non-payment of rent. The tenancy was determined. It was an unconditional determination of the tenancy. It was not stated that if the tenant did not pay up these arrears within one month after the receipt of the notice as contemplated by sec. 12 of the Act the tenancy would be then only determined. Submission was that the tenor of the notice was that the tenancy was being determined unconditionally and even if the tenant pays the arrears of rent the tenancy was not contemplated to be continued. The tenant was asked to vacate and hand over possession of the leased premises till 31st August 1964 and she was also called upon to pay the rent arrears. That would be. submitted by Mr. Shah the demand of a creditor for his dues and not a demand of arrears of rent as contemplated by sec. 12 of the Act. The notice Ex. 27 was therefore bad and consequently no decree for eviction can be passed on the ground of non-payment of rent. That would be. submitted by Mr. Shah the demand of a creditor for his dues and not a demand of arrears of rent as contemplated by sec. 12 of the Act. The notice Ex. 27 was therefore bad and consequently no decree for eviction can be passed on the ground of non-payment of rent. In support of this argument of his he invited my attention to the decision of a single Judge of Allahabad High Court in Ram Krishna v. Mahomed Yahia A. I. R. 1960 Allahabad 482. Sec. 3 (1) (a) of U. P. (Temporary) Control of Rent and Eviction Act (3 of 1947) was the subject-matter of interpretation by Dhavan J. in that case. The relevant observations made therein at page 483 relied upon by Mr. Shah are as under:-THE suit must fail on another ground because the notice of demand was not in accordance with law. Clause (a) requires the landlord to send a notice of demand to the tenant requiring him to pay the arrears of rent within a month. The notice sent-by the plaintiff translated into English runs thus (the translation was read out to both learned counsel and approved by them):- a sum of Rs. 131-4 was due from you as rent for the period 1st October 1952 to 30th April 1953. In spite of dues and demands you are not paying this rent but are adopting delaying tactics by all kinds of excuses. Now on account of your failure to pay rent we hereby give you notice that after occupying this shop till 31 May 1953 and then after vacating it and handing over possession to me on the 1st June 1953 you should pay a sum of Rs. 150/as rent for the period from 1 October 1952 till 31st May 1953 otherwise after the expiry of the period of this notice I shall file a suit in the Civil Court against you for possession and recovery of rent. ( 27 ) IN my opinions this is a notice unconditionally terminating the tenancy. It is not necessary for me to consider the various authorities cited at the bar in which the requirements of a notice under sec. 3 (1) (a) have been discussed. The language of clause (a) is clear enough. It simply requires that the landlord should send a notice of demand. The exact language of the notice is immaterial. It is not necessary for me to consider the various authorities cited at the bar in which the requirements of a notice under sec. 3 (1) (a) have been discussed. The language of clause (a) is clear enough. It simply requires that the landlord should send a notice of demand. The exact language of the notice is immaterial. A polite request to pay rent may be a demand though I would like to add that a mere statement of account will not be a demand. It is not necessary for the landlord to point out to the tenant the consequences of his failure to pay the rent though he may add to the notice of demand a conditional notice under sec. 106 of the T. P. Act warning the tenant that in the event of his failure to comply with the demand the tenancy will stand terminated. ( 28 ) BUT whatever may be the language of the notice demanding arrears of rent under sec. 3 (1) (a) of the Control of Rent and Eviction Act it must fulfill one condition:- it must give the tenant an opportunity to save his tenancy from the consequences of default by paying the rent. The demand may even be coupled with a conditional termination of tenancy such as if you fall to pay within one month of the receipt of this notice the tenancy will be at an end. This combined notice does not violate the purpose of the notice required by sec. 3 (1) (a) for it preserves the tenants right to save his tenancy by paying all the arrears within one month. But if the notice unconditionally terminates the tenancy and asks the tenant to vacate the accommodation irrespective of whether he pays the arrears or not it is not a notice of demand as required by sec. 3 (1) (a ). It cannot be said of such a notice of demand that it was served with the purpose of giving the tenant a final opportunity to preserve his tenancy even though it may contain a demand that the tenant should clear off the arrears before he leaves the accommodation for this is the demand of a creditor and not a landlord whereas the section requires that he should make the demand as landlord. ( 29 ) APPLYING these principles to the present case the notice under review terminated the tenancy. ( 29 ) APPLYING these principles to the present case the notice under review terminated the tenancy. Its object was not to give the tenant a final opportunity to continue as tenant on payment of rent but to ask the appellant to vacate the shop at the end of the month that is to terminate his tenancy irrespective of whether he paid or not. It is true that the notice did include a demand for rent but in the context of this notice the landlord was asserting his right as a creditor against an ex-tenant whose tenancy he had just terminated and was not giving him an opportunity as a tenant to save the tenancy by paying the rent. Learned counsel for the respondent contended that it was open to the appellant even after the receipt of the notice to pay the rent and thus save himself from ejectment. That may be true. But the question is not what the tenant could have done after receiving a notice which was not according to law but whether the notice itself is a notice of demand as required by sec. 3 (1) (a ). It is no answer to an objection against the legality of the notice that the tenant could have ignored the illegality. The question is not whether the law still gave the tenant an opportunity but whether the landlord gave him an opportunity. I n my opinion the plaintiff did not send a notice of demand in accordance with sec. 3 (1) (a) of the Act. It was contended relying upon the aforesaid observations made by the single Judge of the Allahabad High Court that this notice was not a notice of demand as contemplated by sec. 12 (2) of the Act and hence the decree for eviction could not be passed. It was urged by him further that it was not open to me to differ from the view taken in the aforesaid decision as that decision has been followed by V. R. Shah J. in an unreported decision of this Court in Civil Revision Application No. 1018 of 1963 decided on 1st March 1967 (Jayantilal Chhotalal v. Liladhar Vasram ). If I feel any doubt in regard to the correctness of the aforesaid principle enunciated I must refer the case to a larger Bench. If I feel any doubt in regard to the correctness of the aforesaid principle enunciated I must refer the case to a larger Bench. ( 30 ) IT is significant to note that the aforesaid Allahabad decision has been referred to by my learned Brother V. R Shah J. and quoted the observations made in that decision viz. ; applying these principles to the present case the notice under review terminated the tenancy. Its object was not to give the tenant a final opportunity to continue as tenant on payment of rent but to ask the appellant to vacate the shop at the end of the month-that is to terminate his tenancy irrespective of whether he paid or not _ after referring to these observations it has been observed:-IT was held in this case that if the notice unconditionally terminates the tenancy and asks the tenant to vacate the accommodation irrespective of whether he pays the arrears or not it is not a notice of deemed as required by sec. 3 (1) (a ). With respect I am in agreement with the observations of Dhavan J. in the Allahabad case referred to above. It is significant to note that in the cage which my learned Brother V. R. Shah J. had to decide there was total omission to make a-demand for arrears of rent. Considerable emphasis has been laid on that aspect of the matter. After making that reference it is observed:-THE notice as I stated above is intended to convey to the opponent that his tenancy is terminated and he should hand over possession by a particular day. In my opinion the notice does not make any demand for payment of arrears of rent frond the opponent. The bar of sec. 12 (2) of the Rent Act therefore applies to the institution of the suit for possession by the petitioner and the Courts below were right in dismissing his suit for possession. It is thus evident that in the aforesaid case in the notice there was no demand whatsoever regarding the arrears of rent from the opponent. It was on those facts and circumstances held that the notice was not in accordance with the provisions of sec. 12 (2) of the Act. In the instant case in para 2 of the notice there is a mention that on taking accounts of the rent-due upto 31st July 1965 Rs. 472. It was on those facts and circumstances held that the notice was not in accordance with the provisions of sec. 12 (2) of the Act. In the instant case in para 2 of the notice there is a mention that on taking accounts of the rent-due upto 31st July 1965 Rs. 472. 65 paise become due by the tenant to the landlord and thereby the tenant has become a tenant in arrears for a period over six months and consequently the landlord has become entitled to get the lease premises vacated by the tenant on the ground of non-payment of rent. It is significant to note that in the instant case possession was not sought only on the ground of non-payment of rent. It was also sought for on other grounds contemplated by sec. 13 of the Act. It is significant to note that by mere giving a notice as contemplated by sec. 12 (2) of the Act the landlord is not entitled to get possession. In law he is required to determine the contractual tenancy by one of the modes contemplated by sec. 111 of the Transfer of Property Act. It is only after the determination of the contractual tenancy that the landlord would be entitled to get possession. No doubt that right of his is subject to the provisions of secs. 12 and 13 of the Act. In this view of the matter with the greatest respect to Dhavan J. I may say that the landlord cannot give a conditional notice as referred to by him in his judgment on more than one occasion. One has to give a clear-cut notice determining the contractual tenancy as contemplated by sec. 106 of the Transfer of Property Act. No such conditional notice is contemplated by sec. 106 of the Transfer of Property Act. It is true that after giving the notice as contemplated by sec. 106 of the Transfer of Property Act to determine the contractual tenancy if one wants to get possession from the tenant on the ground of non-payment of rent a notice as contemplated by sec. 12 of the Act has to be given. It is a settled position of law now that it is not necessary in law to give such two separate notices. One composite notice can also be given. In the instant case such a composite notice has been given. 12 of the Act has to be given. It is a settled position of law now that it is not necessary in law to give such two separate notices. One composite notice can also be given. In the instant case such a composite notice has been given. As said earlier the notice is not only on the ground of non-payment of rent. It is on other grounds also as contemplated by sec. 13 of the Act. Contractual tenancy has therefore got to be determined by a notice to quit as contemplated by sec. 106 of the Transfer of Property Act and it has been done so. The mere circumstance that such contractual tenancy has been determined unconditionally one cannot jump to the conclusion that this notice is bad as has been observed by Dhavan J. in the aforesaid decision of the Allahabad High Court. ( 31 ) IN Bhaiya Punjalal Bhagwanddin v. Dave Bhagwatprasad Prabhuprasad IV Gujarat Law Reporter 37 the Supreme Court has at pages 40 and 41 observed:-THE first point to determine therefore is whether it is a condition precedent for the institution of a suit by a landlord for the recovery of possession from a tenant who has been in arrears of rent that there had been first a determination of the contractual tenancy. If it is not a condition precedent it will not be necessary to determine whether the month of tenancy continued to be according to the Indian Calendar according to the contract or had been according to the British Calendar in view of sec. 27 of the Act. When a tenancy is created under a contract between the landlord and the tenant that contract must hold good and continue to be in ( force till according to law or according to the terms of the contract it comes to an end. Sec. 111 of the Transfer of Property Act states the various circumstances in which a lease of immoveable property determines. Clause (h) provides for the determination of the lease on the expiration of a notice to determine the lease or to quit or of intention to quit the property leased duly given by one party to the other. There is nothing in the Act which would give a right to the landlord to determine the tenancy and thereby to get the right to evict the tenant and recover possession. There is nothing in the Act which would give a right to the landlord to determine the tenancy and thereby to get the right to evict the tenant and recover possession. This Act was enacted for the purpose of controlling the rents and repairs of certain premises and of evictions due to the tendency of landlords to take advantage of the extreme scarcity of premises compared to the demand for them. The Act intended therefore to restrict the rights which the landlords possessed either for charging excessive rents or for evicting tenants. A tenant stood in no need of protection against eviction by the landlord so long as he had the necessary protection under the terms of the contract between him Land the landlord He could not be evicted till his tenancy was determined according to law and therefore there was no necessity for providing any further protection in the Act against his eviction so long as his tenancy continued to exist under the contract. It is further observed at page 41:-SUB-SEC. 12 does not create a new right in the landlord to evict the tenant when the tenant does not pay his rent. It does not say so and therefore it is clear that a landlords right to evict the tenant for default in payment of rent will arise only after the tenancy is determined and the continued possession of the tenant is not on account of the contractual terms but on account of the statutory right conferred on him to continue in possession so long as he complies with what sub-sec. ? (1) requires of him. The landlord is restricted from evicting the tenant till the tenant does not do-what he is required to do for peaceful possession under sub-sec. (1) of sec. 12. We are therefore of opinion that where a tenant is in possession under a lease from the landlord he is not to be evicted for a cause which would give rise to a suit for recovery of possession under sec. 12 if his tenancy has not been determined already. It follows that whenever a tenant acts in a way which would remove the bar on the landlords right to evict him it is necessary for the landlord to serve him with a notice Determining his tenancy and also serve him with a notice under sub-sec. (2) of sec. 12 of the Act. It follows that whenever a tenant acts in a way which would remove the bar on the landlords right to evict him it is necessary for the landlord to serve him with a notice Determining his tenancy and also serve him with a notice under sub-sec. (2) of sec. 12 of the Act. In view of this Supreme Court-decision it is evident that the contractual tenancy has to be determined. If a conditional notice is to be given as has been referred to by Dhavan J. there would not be a determination of contractual tenancy as contemplated by sec. 111 of the Transfer of Property Act. With respect to Dhavan J. therefore I may say that that decision does not lay down the correct position of law in this behalf. ( 32 ) IT is not necessary for me to refer the case to the larger Bench in view of the aforesaid decision of my learned brother V. R. Shah J. as that case can be distinguished on the facts of the case. In that case there was no demand whatsoever regarding the arrears of rent. The demand was only in regard to possession of the leased premises. In the instant case in para 5 of the notice alongwith possession demand is also made for payment of the entire rent arrears due and get the acknowledgment receipt in writing for the same. There is no form prescribed by the Legislature for the notice to be given under sec. 12 (2) of the Act. That sub-sec. (2) of sec. 12 of the Act reads:-NO suit for recovery of possession shall be instituted by a landlord against a tenant on the ground of non-payment of the standard rent or permitted increases due until the expiration of one month next after notice in writing of the demand of the standard rent or permitted increases has been served upon the tenant in the manner provided in sec. 106 of the Transfer of Property Act 1882 this sub-sec. (2) of sec. 12 of the Act places a restriction upon the landlord who under general law be entitled to get possession of the leased premises on determination of the contractual tenancy. He is entitled to file a suit for recovery of possession on the ground of non-payment of standard rent or permitted increases due on fulfillment of the conditions specified In this sub-section. He is entitled to file a suit for recovery of possession on the ground of non-payment of standard rent or permitted increases due on fulfillment of the conditions specified In this sub-section. Such a suit can be filed only after the expiration of one month next after the notice in writing of the standard rent or permitted increases has been served upon the tenant in the manner provided in sec. 106 of the Transfer of Property Act. It is an admitted position that the suit has been filed after the expiry of one month next after the notice Ex 27 was served upon the tenant in the manner prescribed in sec. 106 of the Transfer of Property Act 1882 As said by me earlier the demand of arrears of rent has been made and that demand is in writing. All the conditions of sub-sec. (2) of sec. 12 of the Act are therefore satisfied in the instant case. The notice cannot therefore be said to be invalid or illegal as has been urged by Mr. Shah. The learned District Judge has therefore rightly in any opinion come to the conclusion that this notice is valid and legal. Decree for eviction confirmed. .