T. U. MEHTA, J. ( 1 ) THE petitioner of this Revision Application is a tenant against whom a decree for eviction is passed by the court of District Judge Kutch in Regular Civil Appeal No. 19/68 on the ground of non-payment of rent. The trial court which was the court of Civil Judge J. D. at Gandhidham refused to pass the said decree in Civil Suit No. 106/67 which was filed by the opponent-landlord to obtain eviction only on the ground of non-payment of rent in arrears. This decision of the trial court was based on its findings that the petitioner-tenant was entitled to deduct the amount of Rs. 40/which he is said to have spent on necessary repairs of the suit premises after giving a notice thereof to the opponent-landlord. This finding of the trial court is reversed by the appellate court with the result that the tender of rent made by the petitioner-tenant on the first day of hearing is found short by Rs. 14/only. ( 2 ) THE petitioner-tenant is occupying the suit promises which bear No. SFX 296 at Gandhidham and resides there. The contractual rent fixed for these premises at the rate of Rs. 14/per month. ( 3 ) THE facts of the case reveal that on 15-4-66 the opponent-landlord addressed a registered notice to the petitioner-tenant demanding the arrears of rent from 1-10-65 to 30-4-66 amounting to Rs. 98. 00. The case of the tenant is that before this notice was given he had offered the rent in arrears to the landlord but as the landlord refused to receive the same it was sent by money order. It appears that by this time there was some dispute between the parties as to necessary repairs of the suit premises. This is evident from Ex. 15 which is the reply given by the petitioner - tenant on 30-4-66 to the above - referred notice of the landlord. It is an admitted position that the amount of Rs. 98/which had fallen into arrears from 1-10-65 to 30-4-66 was eventually received by the landlord. ( 4 ) THEREAFTER on 7th February 1967 the landlord is found to have given another notice as found at Ex. 17 demanding the arrears of rent from 1 to 28-2-67 i. e. 10 months. It is an admitted position that the amount of Rs. 98/which had fallen into arrears from 1-10-65 to 30-4-66 was eventually received by the landlord. ( 4 ) THEREAFTER on 7th February 1967 the landlord is found to have given another notice as found at Ex. 17 demanding the arrears of rent from 1 to 28-2-67 i. e. 10 months. This notice was received by the tenant on 10-2-67 but before the same was dispatched the landlord received Rs. 60/by money order on the same day i. e. 7-2-67. In the money order coupon the tenant mentioned that he was entitled to recover the expenditure which he had incurred for carrying out the necessary repairs to the suit premises. After the receipt of the notice Ex. 17 on 10-2-67 the tenant sent another money order of Rs. 28/on 7. 3. 67. Thus towards the rent which was in arrears from 1-5-66 to 1-2-67 the tenant is found to have paid up the amount of Rs. 85. 00by dispatching two money orders one of Rs. 60/and other of Rs. 28. 00. ( 5 ) THE landlord thereafter filed the present suit on 26-4-67. Issues in the suit were framed on 15. 9. 67 but before the issues framed the tenant is found to have deposited in court an amount of Rs. 122. 00on 29-8-67. It is an admitted position that if it is found that the tenant is not entitled to deduct the amount of Rs. 40/on account of necessary repairs from the rent which had fallen due then on the first date of hearing the deposit of Rs. 122/was short by Rs. 14. 00. ( 6 ) THE trial court found that since the tenant was entitled to deduct Rs. 40/on account of necessary repairs as contemplated by sec. 23 of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 (hereinafter referred to as the Rent Act ). his case is completely covered by clause (b) of sec. 12 (3) of the Rent Act and therefore he is not liable to be evicted. However on appreciation of evidence the learned Judge of the appellate court found that the finding recorded by the learned trial Judge on the question of the deductibility of the Rs. his case is completely covered by clause (b) of sec. 12 (3) of the Rent Act and therefore he is not liable to be evicted. However on appreciation of evidence the learned Judge of the appellate court found that the finding recorded by the learned trial Judge on the question of the deductibility of the Rs. 40/on account of necessary repairs cannot be supported as there was no clear evidence to show that the whole of this expenditure was incurred by the tenant before the notice Ex. 15 dt. 30-4-66 was given. The appellate court therefore held that the tenant was not entitled to deduct this amount of Rs. 40 In view of this finding the deposit of Rs. 122/made by the tenant before the first date of hearing was found short by Rs. 14. 00. On account of this shortage the appellate court came to the conclusion that provisions of clause (b) of sec. 12 (3) of the Rent Act were not satisfied and therefore the tenant has incurred the liability to be evicted on the ground of want of his readiness and willingness to pay the rent. ( 7 ) THE finding of the learned Judge of the appellate court on the question of deductibility of the amount of Rs. 40/on account of necessary repairs is a finding of fact which is not liable to be set aside in this revision application. 1 therefore proceed on the presumption that this finding is final. If this is so I should also proceed on the basis that the tender of rent in arrears made by the tenant before the first date of bearing was found short by Rs. 14. 00. The question therefore is whether looking to the scheme of sec. 12 of the Rent Act and the peculiar facts of this case that shortage of payment on the first date of hearing would justify the passing of an eviction decree against the tenant. ( 8 ) BEFORE discussing the above point it would also be necessary to note that the trial court has not passed any order about the tender of rent in court subsequent to the first date of hearing. The tenant has tendered the rent due subsequent to the first date of hearing as under rs. 42/tendered on 21. 12. 67. Rs. 28/tendered on 28. 12. The tenant has tendered the rent due subsequent to the first date of hearing as under rs. 42/tendered on 21. 12. 67. Rs. 28/tendered on 28. 12. 67 the case was disposed of by the trial court on 29. 12. 67 It is thus found that the rent in arrears till the disposal of the suit has been paid up by the tenant. ( 9 ) IN view of the above facts the only default which the tenant is found to have made in compliance with the provisions contained in cl. (b) of sec. 12 (3) of the Rent Act consists in the short payment of Rs. 14/on the first date of hearing of the suit. The question is whether this default is sufficient to lead the court to a finding that the tenant is not willing and ready to pay the amount of rent fixed for the suit premises. ( 10 ) IF we examine the scheme of sec. 12 of the Rent Act we find that sub-sec. (1) thereof completely shuts out a landlords right to recover the possession of the suit premises so long as the tenant occupying these premises is found ready and willing to pay the amount of standard rent and permitted increases if any and observes and performs other conditions of the tenancy in so far as they are consistent with the provisions of the Rent Act. Sec. 13 of the Rent Act which specifies the grounds which would entitle a landlord to recover possession of the leased premises work as an exception to the general principle thus stated by sub-sec. (1) of sec. 12. So far as this suit is concerned we are not concerned with any of the grounds mentioned in sec. 13 because eviction notice is given by the landlord only on the ground that the tenant is not ready and willing to pay the amount of standard rent. The readiness and willingness of the tenant to pay the rent provides therefore a general protection to every tenant against his eviction. If a tenant in a given case is not found ready and willing to pay the rent of the leased premises he cannot avail of the general protection granted to him by the Legislature under subsec. (1) of sec. 12. Sub-sec. (2) of sec. If a tenant in a given case is not found ready and willing to pay the rent of the leased premises he cannot avail of the general protection granted to him by the Legislature under subsec. (1) of sec. 12. Sub-sec. (2) of sec. 12 contemplates a procedure which a landlord should follow before instituting a suit for recovery of possession of the leased premises from his tenant on the ground of non-payment of rent. It says that if a tenant is found to be in arrears of rent the landlord should make a demand of the rent in arrears by a notice in writing and should serve the said notice upon the tenant in the manner provided in sec. 106 of the Transfer of Property Act. But it further provides that no suit for recovery of possession shall be instituted by the landlord until the expiration of one month after the notice is so served upon the tenant. ( 11 ) THEN follows sub-sec. (3) which is divided into two clauses (a) and (b ). Clause (a) contemplates the arrears of six months and provides that if a tenant neglects to make the payment of those arrears of six months until the expiration of the period of one month after the service of the notice the court may pass a decree for the eviction against him. The word may is to be construed as shall and therefore if the provisions of this clause are satisfied then the court must pass a decree for eviction irrespective of other considerations such as the regularity of the tenant in making the payment of rent in the past. ( 12 ) CLAUSE (b) of sub-sec. (3) applies in cases wherein clause (a) does not apply. According to this clause if a tenant in arrears wants to save himself from eviction what he is required to do is to pay or tender in court the whole amount of the rent in arrears on the first date of hearing and thereafter to continue to pay or tender in court regularly the standard rent and permitted increases together with the costs of the suit till the suit is finally decided as directed by the court. The question which arises to be determined is what would happen if these conditions of cl. (b) are not completely satisfied by a tenant in a given case. The question which arises to be determined is what would happen if these conditions of cl. (b) are not completely satisfied by a tenant in a given case. Would it be open to such a tenant to show to the court that even though for some reason he could not strictly comply will all the requirements of cl (b) a decree for eviction should not be passed against him because he is otherwise found to be ready any willing to pay the rent as contemplated by sub-sec. (1) of sec. 12. In other words even if a particular tenant is found to have not complied with the requirement of cl. (b) can he claim the protection of sub-sec. (1) of sec 12 on the ground that he has always been ready and willing to pay the standard rent and permitted increases if any relating to the suit premises. xxx xxx xxx xxx ( 13 ) WE therefore come to the main point which is involved in this matter namely whether the tenant in this case should be evicted from the suit premises merely because the amount tendered by him before the first date of hearing is short by Rs 14/ -. The examination of the scheme of sec. 12 of the Rent Act shows that all the tenants who are ready and willing to pay standard rent and permitted increases are protected from eviction on the ground of non-payment of rent This is the general protection secured to the tenants under sub-sec. (1 ). ( 14 ) SUB-SECS. (2) and (3) of this section do not take away or curtail this general protection. They merely deal with the procedure which should be followed when a tenant is found to be in arrears of rent and provide for the application of this general protection to specific cases of non-payment. Thus while sub-sec. (2) contemplates a procedure which a landlord should follow to recover possession on the ground of non-payments sub-sec. (3) deals with two types of cases of nonpayment. One type is of the cases where a tenant is in arrears of six months rent and the other type is of the cases which are not covered by the first type. ( 15 ) SO far as the first type of cases viz. (3) deals with two types of cases of nonpayment. One type is of the cases where a tenant is in arrears of six months rent and the other type is of the cases which are not covered by the first type. ( 15 ) SO far as the first type of cases viz. the cases of six months arrears are concerned the legislature has taken a strict view and has provided that if a case falls within clause (a) of sub-sec. (3) and the tenant concerned neglects to make the payment of rent in arrears till the expiration of one month after the service of notice a decree for eviction must follow because in that case it must be presumed that the concerned tenant is not ready and willing to pay the rent in arrears. Thus cl. (a) of sub-sec. (3) is nothing but an elaboration of the principle of readiness to and willingness of a tenant to pay the rent in arrears in specific cases where rent of six months and more has been in arrears. Such a tenant therefore loses the general protection granted by sub-sec. (1) on the footing that he is not found ready and willing to pay rent in arrears. ( 16 ) HAVING thus taken a stricter view of the arrears of six and more months the legislature has proceeded further to provide a safeguard to the tenants whose case not fall within cl. (a) of sub-sec. (3 ). This the legislature has done by enacting cl. (b ). By enacting this clause the legislature has pointed out how a tenant whose case is not covered by cl. (a) can protect his possession. But it has nowhere indicated that in all cases where a tenant is not able to carry out the directions of cl. (b) a decree of eviction should automatically follow. It is here that a clear distinction between the consequences flowing from clauses (a) and (b) of sub-sec. (3) becomes marked out because while cl. (a) specifically provides that a decree for eviction shall follow for its non-compliance no such directions are given in cl. (b ). In other words unlike cl. (a) cl. (b) does not take away the general protection contemplated by sub-sec. (1 ). Therefore a tenant who for some reason has not been ale to comply with the directions contained in cl. (b ). In other words unlike cl. (a) cl. (b) does not take away the general protection contemplated by sub-sec. (1 ). Therefore a tenant who for some reason has not been ale to comply with the directions contained in cl. (b) can claim the general protection provided by sub-sec. (1) provided he can convince the court from facts and circumstances peculiar to his case that inspite of his inability to comply with the directions contained in cl. (b) he was and is. always ready and willing to pay rent of the premises to his landlord. ( 17 ) THE question therefore is how the court should judge the readiness and willingness of such a tenant to pay rent It cannot be gainsaid that readiness and willingness to pay rent is essentially a question which can be answered only with reference to the peculiar facts and circumstances of each case. One circumstance which the court can take into consideration is the reason why the tenant has not been able to comply with the directions contained in cl. (b ). Non-compliance with the directions of cl. (b) may tilt the balance in favour of a landlord but before the balance is so tilted the court has to apply its mind to consider whether the facts of the case justify the conclusion that the tenant concerned has lost the general protection contemplated by sub-sec. (1 ). To put it differently the court should consider whether by not complying with the directions of cl. (b) the tenant has shown a conduct which would be indicative of a want of his readiness and willingness to pay the rent. If the answer is in the affirmative the general protection granted to tenants by sub-sec. (1) cannot be availed of by that tenant. If the answer is in the negative court should consider how far the tenant can avail of the general protection contemplated by subsec. (1 ). The point is that so far as cl. (b) is concerned eviction does not automatically follow from its non-compliance and a pragmatic approach of the court with reference to the peculiar facts and circumstances of each case is not ruled out. Thus in effect. cl. (b) provides for an additional protection to a tenant who is sought to be evicted on the ground of non-payment of rent. (b) is concerned eviction does not automatically follow from its non-compliance and a pragmatic approach of the court with reference to the peculiar facts and circumstances of each case is not ruled out. Thus in effect. cl. (b) provides for an additional protection to a tenant who is sought to be evicted on the ground of non-payment of rent. If a tenant has not been able to avail of this additional protection the court can examine the reasons why he has not been able to do so and if the court finds that these reasons did not reflect adversely upon his readiness and willingness to pay rent the court can protect him. ( 18 ) NOW if we apply these principles to the facts of this case we and that the only default which is made by the tenant in payment of rent is the default In making the short payment of arrears of rent on the first date of hearing. As already noted above the payment of rent made on or before the first date of hearing is found short only by Rs. 14 It should be pertinent here to consider why this shortage is found. As already noted this shortage is on account of the tenants belief that he was entitled to deduct the amount of Rs. 40/on account of necessary repairs. Under sec. 23 of the Rent Act a landlord is bound to keep the premises in good and tenantable condition and if he neglects to make such repairs within reasonable time after a notice is served upon him by his tenant it would be open to the tenant to carry out these repairs and to deduct expenses so incurred by him from the rent which may be due. The proviso which is attached to sec. 23 puts a limitation upon such deduction. According to this proviso as it applies to Gujarat the amount which a tenant would be so entitled to deduct on account of necessary repairs shall not exceed 1/4th of the rent payable by the tenant for a Particular year. Here the amount of Rs. 40/which the tenant intended to deduct does not exceed 1/4th of the yearly rent. Therefore if the tenant is found to have complied with the requirement of sec. 23 he would be entitled to deduct the amount of Rs. Here the amount of Rs. 40/which the tenant intended to deduct does not exceed 1/4th of the yearly rent. Therefore if the tenant is found to have complied with the requirement of sec. 23 he would be entitled to deduct the amount of Rs. 40/on account of necessary repairs and in that case there would be no shortage in the deposit of arrears on the first date of the hearing of the suit. Now the question whether the tenant was entitled to deduct the amount of Rs. 40. 00on account of necessary repairs was even before the trial court. The trial court on consideration of the evidence before it decided this question in favour of the tenant. But unfortunately the tenant failed on this question in the appellate court. Though the decision given by the appellate court on this question has become final the fact that the trial court upheld the contention of the tenant on this point shows that the contention which was raised by the tenant as regards this point was not frivolous or mala fide. If this contention of the tenant is found to be bona fide the question is how far that fact can be utilised by the tenant in showing that he is and was always ready and willing to pay the amount in arrears. In my opinion the general protection given by subsec. (1) of sec. 12 to all the tenants who are found ready and willing so pay the rent of the suit premises is not taken away by the mere fact that the tenant has failed to take advantage of cl. (b) if from the facts and circumstances of the case it is shown that the tenant was always ready and willing to pay the rent of the suit premises. As already stated above the protection given to a tenant by cl. (b) of sec. (b) if from the facts and circumstances of the case it is shown that the tenant was always ready and willing to pay the rent of the suit premises. As already stated above the protection given to a tenant by cl. (b) of sec. 12 (3) of the Rent Act is only an additional protection and therefore if in a given case it is found that the concerned tenant is not entitled to this additional protection the court has still to apply its mind to the case and to find out whether the facts and circumstances of the case suggest that the tenant is none-the-less ready and willing to pay the rent of the suit premises If on strength of these facts and circumstances of the case the court comes to the conclusion that there is a tenant who has made all honest efforts to pay up the rent in arrears then there is nothing to prevent the court from protecting that tenant under sub-sec. (1) of sec. 12 even though such a tenant has failed to take advantage of the additional protection granted to him by cl. (b ). ( 19 ) SPEAKING of the facts of the present case I am of the opinion that the contention of the tenant as regards his right to deduct the amount of Rs. 40. 00on account of necessary repairs was a bona fide one. In fact he succeeded on this contention in the trial court. It is altogether another matter if he failed to convince the appellate court on this point. At the time of tendering the amount of arrears on the first date of the hearing he could not have visualised the decision of the court as regards this contention. Therefore if this contention is found to have been honestly raised by him and if he has eventually failed in convincing the court about the correctness of his contention and if on account of this failure he is found short in his payment on the first date of hearing as contemplated by cl. (b) it cannot be said that he is not ready and willing to pay the rent. ( 20 ) UNDER these circumstances I am of the opinion that the petitioner-tenant is not proved to be not ready and willing to pay the rent of the suit premises. No decree for eviction can therefore be passed against him. (b) it cannot be said that he is not ready and willing to pay the rent. ( 20 ) UNDER these circumstances I am of the opinion that the petitioner-tenant is not proved to be not ready and willing to pay the rent of the suit premises. No decree for eviction can therefore be passed against him. This Revision Application is therefore allowed and the decree passed for eviction by the lower appellate court is set aside. Rule is accordingly made absolute without any order as to costs. Application allowed. .