N. H. BHATT, J. ( 1 ) THIS is a revision application by the original tenant whose application being Misc. Application No. 203 of 1976 for fixation of standard rent under sec. 11 of the Bombay Rent Act had come to be dismissed by the Additional Judge of the Court of Small Causes Baroda on the ground that the prayer sought for by the tenant was barred under the principles of res judicata. This tenants Civil Revision Application No. 26 of 1976 also came to be rejected by the 2nd Extra Assistant Judge Baroda on the ground of estoppel. It is these orders of the two authorities below that are sought to be impugned by this revision application. ( 2 ) A few facts are necessary to be stated in order to appreciate the various contentions and submissions raised and made in this case. The applicant-tenant had filed an application No. 836 of 1975 in the Court of the Civil Judge (J. D.) Baroda on 19-1-75 for fixation of standard rent. The landlord I am told at the Bar had before that served a notice on the tenant calling upon him to pay up arrears and so the tenant had filed that application No. 836 of 1975 in the Court of the Civil Judge (J. D.) which was the Court then competent to deal with these matters there being not established the Court of Small Causes then in the city of Baroda. The contractual rent was Rs. 500. 00 per month and the tenant disputed the reasonableness of that amount as the monthly rate of rent. After filing of the said application the Court had passed an order for interim rate of rent and the Court had fixed the interim rent at the rate of Rs. 300. 00. The Court had directed the tenant to pay up the arrears at the rate of Rs. 300. 00 and had also directed the tenant to go on paying the rent at that rate pending the final decision of the application. On 15-3-76 the tenants advocate requested the Court that as his client was out of station some time should be given to him presumably to deposit the amount. Mr. 300. 00 and had also directed the tenant to go on paying the rent at that rate pending the final decision of the application. On 15-3-76 the tenants advocate requested the Court that as his client was out of station some time should be given to him presumably to deposit the amount. Mr. Shelat the learned advocate appearing for the applicant before me stated that by that time only three months rent had remained undeposited though he hastened to add that the fault did not lie with the tenant But lay with the clerk of the advocate engaged by him who though entrusted with the money had either failed or neglected to deposit the amount. The learned Judge then dismissed that application on 17-3-76 presumably under sec. 11 (3) of the Rent Act on the ground that the tenant had failed to deposit the amount. The present applicant therea ter filed a Misc. Application No. 203 of 1976 before the learned Judge for restoration of the dismissed application No. 336 of 1975. Almost simultaneously he filed the Misc. Application No. 312 of 1976 as a fresh application for fixation of standard rent. It is an admitted position today that the said application for restoration of the earlier application is lying in the archives of the Court but the learned Judge had proceeded to decide this new application No. 312 of 1976 and ulti- mately dismissed the same on the ground that the earlier order dismissing the application under sec. 11 (3) operated as a res judicata. Before the learned 2nd Extra Assistant Judge the tenant filed a revision application No. 26 of 1976 against the dismissal of his application No. 312 of 1976 and the learned Judge as said above upheld the order of the trial Court not on the ground of res judicata but on the ground of non-maintainabi- lity of the revision application and also on the ground of estoppel arising out of the dismissal of the earlier application for fixation of standard rent. ( 3 ) MR. Shelat the learned advocate appearing for the applicant- tenant urged that the earlier application having been dismissed for default so to say that dismissal cannot operate as a bar. He firstly submitted that in order to operate as a bar of res judicata there must be a decision on merits. ( 3 ) MR. Shelat the learned advocate appearing for the applicant- tenant urged that the earlier application having been dismissed for default so to say that dismissal cannot operate as a bar. He firstly submitted that in order to operate as a bar of res judicata there must be a decision on merits. With respect to the alleged bar of estoppel he urged that the plea of estoppel resting on facts should have been raised speci- fically and for want of any such specific plea the learned Judge should not have entertained that plea. Lastly Mr. Shelat submitted that for want of any prohibition against the entertainment of a fresh application after the dismissal of the earlier application except on merits a fresh applica- tion and as a matter of fact a number of applications in succession would never be barred. ( 4 ) IN order to assay the strength of the various submissions advanced by Mr. Shelat the scheme of the Act deserves to be closely examined. The Bombay Rent Act popularly so-called is on the statute book since 1947 and it has been often said that it is the woe of the litigants and a joy of lawyers. Though expected to be a simple and small affair it has become the subject-matter of the legal labyrinths. The primary object of the law is to hold an umbrella above the heads of tenants who may not be victimised by landlords who are proverbially said to be out to exploit the needs of the people in stress. At the same time the Legislature wanted to strike a fair balance and that is why it has provided in sec. 12 (1) that a tenant in order to earn the pro- tection of the statute must be ready and willing to pay the standard rent and permitted increases and must observe and perform other conditions of the tenancy in so far as they are not inconsistent with the provisions of the Bombay Rent Act. If a tenant is in arrears the first thing that a landlord has to do is to call upon him to pay up the arrears. If a tenant is in arrears the first thing that a landlord has to do is to call upon him to pay up the arrears. If he does so within the period of one month of the receipt of the notice the landlords right to file a suit for possession does not arise However instances are common in which there is a dispute as to the amount of standard rent. There may be a genuine dispute and some times there may be a dispute raised for the sake of a dispute in order to delay the devils day. However in order to protect the tenants who have a genuine dispute regarding the rate of standard rent a special procedural machinery is envisaged by the Legislature. A tenant who has been served with a notice of demand followed by a threat of eviction is given all opportunity to vindicate his bona fides. He is given the right to approach the Court and raise a dispute about the standard rent. Lest the landlord should be in two minds to sue or not to sue a special provision has been made. The Court in such cases on an application filed by a tenant who has been served with a notice under sec. 12 (2) of the Rent Act has to make an order directing the tenant to deposit in Court forthwith or thereafter monthly or periodically such amount of rent as the court considers to be reasonably due to the landlord pending the final disposal of the applicat- ion and a copy of such interim order is provided to be served upon the landlord The idea is that the landlord should get notice of the fact that the tenant has raised a dispute of standard rent before the Court and that he has deposited the arrears and has agreed to go on depositing at the rate deemed reasonable by the Court. If this situation arises the landlord has to deter himself from filing the suit because the explanation appended to sec. 12 of the Act says that if an application to the Court is made under sec. 11 (3) and the amounts are paid and tendered as speci- fied in the order of the Court there would arise a presumption that the tenant is ready and willing to pay the rent and the embargo placed on the landlords right to sue by sec. 11 (3) and the amounts are paid and tendered as speci- fied in the order of the Court there would arise a presumption that the tenant is ready and willing to pay the rent and the embargo placed on the landlords right to sue by sec. 12 (1) would at once be attracted. In other words sec. 11 (3) read with explanation appended to sec. 12 makes it clear that an application under sec. 11 (3) for fixation of standard rent followed by the Courts direction to deposit the arrears and go on deposit- ing the future rent till the final disposal of the application is not a simple application for fixation of standard rent but it is an application that debars the landlord in effect from filing a suit for possession on the ground of non-payment of rent. ( 5 ) IF the plea advanced by Mr. Shelat is entertained and it is to be held that the tenant can go on filing the applications under sec. 11 for fixation of the standard rent in succession the landlords important right would always be defeated and now and then a tenant making an applica- tion and seeking the Courts direction would deposit nothing and would still attempt to thwart the landlords right to seek possession. Once an application under sec. 11 (3) of the Act comes to be dismissed the embargo placed on the landlords right to move the Court for non-pay- ment of rent will be lifted. If the tenants right to go on making succe- ssive applications is recognised an invidious situation is sure to arise. So as per the scheme of sec. 11 (3) and the explanation appended to sec. 12 of the Rent Act it is to be held as a matter of inevitable conclusion that the application under sec. 11 (3) is such an application as cannot be resorted to now and then at the sweet will of the tenant. ( 6 ) THE earlier application that was dismissed by the Court purported to be one dismissed on merits. When I use the word merit I mean to say that it is because of certain contingencies. It is not a dismissal for non- appearance simpliciter. It is the legislative mandate necessarily implied in sec. ( 6 ) THE earlier application that was dismissed by the Court purported to be one dismissed on merits. When I use the word merit I mean to say that it is because of certain contingencies. It is not a dismissal for non- appearance simpliciter. It is the legislative mandate necessarily implied in sec. 11 (3) of the Rent Act that a tenant who files an application and then per force invites the Courts direction should deposit the arrears of rent and future rate of rent as the Court considers to be reasonably due to the landlord. If the tenant fails to deposit the amount he would forfeit not only his claim to be a tenant ready and within to pay the rent but he would also forfeit his application itself. The dismissal of an application under sec. 11 (3) therefore cannot be said to be on par with the dismi- ssal of an application for default of appearance in terms of Order 9 Rule 5 of the Civil Procedure Code. Order 9 Rule 8 of the Civil Procedure Code applies to applications for fixation of standard rent. As per Chapter IV-A of the Bombay Rent Control Rules 1948 a Court of Small Causes established under the Provincial Small Causes Court Act 1887 has to follow as far as may be and with necessary modifications the procedure applicable to suits or proceedings referred to in Rule 9a as if such applications were suits of the description referred to therein. As per Rule 9a the Court of Small Causes has to follow the practice and procedure prescribed for the time being by or under the Provincial Small Causes Court Act 1887 Going to sec. 17 of the Provincial Small Causes Court Act we find that the procedure prescribed in the Code of Civil Procedure 1908 shall have in so far as is otherwise provided by that Code or by this Act be the procedure followed in a Court of Small Causes in all suits cognizable by it. In Order 50 of the Civil Procedure Code Order 9 is not shown as one of the provisions not applicable to the Court of Small Causes. The final outcome of all these provisions is that Order 9 Rule 8 and Order 9 Rule 9 of the Civil Pro- cedure Code apply to applications for fixation of standard rent. In Order 50 of the Civil Procedure Code Order 9 is not shown as one of the provisions not applicable to the Court of Small Causes. The final outcome of all these provisions is that Order 9 Rule 8 and Order 9 Rule 9 of the Civil Pro- cedure Code apply to applications for fixation of standard rent. Even if an application for standard rent is dismissed for default of appearance under Order 9 Rule 8 of the Civil Procedure Code no fresh application would be competent. If it be so can it be said that an application which is dismissed under sec. 11 (33 of the Act not purely on the ground of non- appearance of the applicant but on the ground of alleged non-compli- ance with the condition imposed by the Court the condition which is highly meaningful as noted above a tenant would be at liberty to go on filing successive applications undeterred by the dismissal of his earlier application or applications? It runs counter to the spirit of the law as is implicit in sec. 11 (3) of the Act read with explanation appended to sec. 12. ( 7 ) IF a tenant incurs the forfeiture of his application for fixation of standard rent under sec. 11 (3) of the Act it would be a decision so to say on merits not the merits of his contention about the standard rent but in the sense of merits of there being a sort of non-compliance with the mandatory requirement which gives a tenant a right to arrest the landlords right to sue. ( 8 ) WHEN viewed in the light of sec. 11 (4) of the Act the meaning of the Legislature becomes amply clearer. The policy of the legislature could be easily gathered from the conjoint reading of sec. 11 (3) and sec. 11 of the Rent Act. the Legislature insists that the tenant who is sought to be jealously guarded against exploitation must at least be fair to the landlord and not to create a situation in which the landlord would be deprived of at least a regular return on his property as tentati- vely thought to be reasonable. If the tenant is not willing to act fairly the Legislature would have no sympathy for such a tenant. If the tenant is not willing to act fairly the Legislature would have no sympathy for such a tenant. Sec. 11 (4) goes so far as to debar the tenant from appearing in the suit or defend- ing the suit except with the leave of the Court and this debarment includes one from contesting the question of standard rent also and the Legislature has added that such leave would be granted by the Court subject to such terms and contesting as the Court may specify. Sec. 11 (6) further lays down that the orders under secs. 11 (3) and 11 (4) shall not be appealable and this also displays the anxiety of the Legislature to see that the tenants do not starve the landlords by resort to technicalities. In view of this scheme of the Act it is crystal clear that once an application under sec. 11 (3) of the Act comes to be dismissed it would preclude the tenant from reagitating the question of standard rent. If that be the policy of the Legislature it is a matter of necessary corollary to hold that such a dismissal under sec. 11 (3) of the Act puts a final stop or estoppel to that agitation of the question of standard rent. The tenant by his act of filing the earlier application makes the landlord alter his position viz. constrains him not to file the suit. By incurring the loss of his application under sec. 11 (3) of the Act he then automatically again opens the doors for the landlord. By a fresh application the tenant again would be altering the landlords position and the landlord who has filed the suit for posse- ssion would again be non-suited on the ground of tenants readiness and willingness to pay the arrears the readiness and willingness that are to be statutorily presumed under sec. 11 (3) of the Act. Thus the tenant would go on making the landlord change his position to his advantage. He would be estopped from Doing so. In above view of the matter the fresh applica- tion filed by the applicant tenant would be required to be held absolutely incompetent and on this ground the orders passed by the Courts below deserve to be sustained. Thus the tenant would go on making the landlord change his position to his advantage. He would be estopped from Doing so. In above view of the matter the fresh applica- tion filed by the applicant tenant would be required to be held absolutely incompetent and on this ground the orders passed by the Courts below deserve to be sustained. ( 9 ) HOWEVER the peculiar feature of the case on hand is that the tenants application for revival of his earlier application is not being attended to. The tenant has contended that because of the factors beyond his control there was non-compliance. The order under sec. 11 (3) is a very drastic order robbing the tenant of his valuable right of claiming to be a tenant ready and willing to pay the arrears of rent and thereby putting 3n embargo on the landlords right to file a suit on the ground of non-payment of rent. Such a drastic order would be passed by the Could obviously after hearing the other side and if such an order is passed without hearing the tenant it will be open to the tenant to urge that the order is passed behind his back and is therefore no order at law. If any help is to be derived on the point of hearing before such a drastic order came to be passed reference could be made to the judgment of the Division Bench of this Court in the case of HARKISONDAS CHUNILAL CHOKSHI V. PRABHAVATI BEN 14 G. L. R. 438. In that case the rigours of sec. 11 (4) had come to be examined by the Court. While negativing the contention about the unconstitutionality of the provisions of sec. 11 (4) of the Rent Act in the context of Article 14 of the Constitution the Division Bench held as follows : this discretion having been vested in a Court of law has to be exercised judicially on well recognised principles and would be immune from challenge on the ground of arbitrariness or want of guidance Furthermore in our opinion the guidelines ale clearly contained in the statute and the discretion being judicial is required to be exercised on general principles guided by rules of reason and justice on the facts of each case and not in any arbitrary or fenciful manner. If in a given case the discretion is exercised in an arbitrary or unjudicial manner or in total disregard of relevant considerations or by taking into account irrelevant considerations. It would always be open to the party aggrieved to seek relief in appropriate proceedings as indicated earlier it will be therefore perfectly open to the present applicant-tenant to prod his earlier application for restoration or review of the order dismissing his application or to move the District Court in revision against the said order if it is open to him to do so and so seek the reversal of that order of dismissal of that earlier application. The judgment of this Court in this revision app- lication neither takes away nor confers the said right on the tenant who will be at liberty to move in accordance with law if so advised. As far as the present revision application is concerned it is dismissed on the ground that the fresh application was not competent. Rule is accordingly discharged. There will be no order as to costs in the facts and circumst- ances of this case. .