JUDGMENT - R.A. JAHAGIRDAR, J.:---The petitioner is the landlord of a land bearing Survey No. 21 and situated at village Vithalpur, in Kannad Taluka of Aurangabad District. One Yadav Narayan Adkar who was originally respondent in this petition (who will hereinafter be referred to as the respondent) was the tenant of the said land. From the facts which have been mentioned in the judgments of the Courts below and which have been with some indignation underlined by Mr. Hussain appearing in support of the petition, it appears that the respondent was indeed a defaulter in the payment of rent and that the petitioner had to offer take proceedings to recover the arrears of rent. 2. The respondent did not pay the rent for the years 1957 and 1958-59 and the petitioner had to file an application for recovering the same which culminated in the order dated 30th June, 1960 of the Tahsildar. There was a default again for the subsequent year for which again the petitioner had to file an application leading to the order of the Tahsildar of 24th October, 1960. There is some dispute between the Advocates appearing before me as to whether payments in fact were made in satisfaction of those two years. But since an answer either way to that question will not materially effect the ultimate decision in this petition, it is not necessary to discuss that question. Thereafter the respondent again fell in arrears of rent for the years 1960-61, 1961-62 and 1962-63. An application was made under section 32(2) read with section 38 and section 19 of the Hyderabad Tenancy and Agricultural Lands Act, 1950, (hereinafter referred to as the Tenancy Act) for possession of the land on the found that the respondent had committed default in the payment of three years. 3. Before I proceed to narrate the progress of these proceedings, it would be appropriate to refer to the relevant provisions of the Tenancy Act. Section 19(2) enables the landlord to terminate a tenancy on the ground that the tenant has filed to pay in any year, within fifteen days from the day fixed under the Land Revenue Act for the payment of the last year. The application for possession of the land had to be made under section 32. The provisions which invest the landlord with a right to obtain possession are contained in section 28 of the Tenancy Act. The application for possession of the land had to be made under section 32. The provisions which invest the landlord with a right to obtain possession are contained in section 28 of the Tenancy Act. That section provides that where a tenancy of any land is terminated for non-payment of rent and the landlord files any proceeding to evict the tenant, the Tahsildar shall call upon the tenant to tender the rent in arrears along with the costs of the proceedings within ninety days from the date of the order. The section further provides that if the tenant compiles with such order, the Tahsildar shall, in lieu of making an order of ejectment direct that the tenancy has not been terminated. If, however, the termination of the tenancy is sought for non-payment of rent for any three years and the landlord has given intimation to the tenant of the default within a period of six months of each default, then the discretion given to the Tahsildar of calling upon the tenant to deposit the rent within 90 days in taken away. In other words, in the case of default of three years, where the landholder has given intimation of each default with in six months of each default, then the order for eviction must inevitably follow. It is these provisions under which the possession of the suit land in the present case has been sought. 4. From the facts which have been narrated in the judgment of the courts below and which have been reiterated before me by Mr. Hussein the learned Advocate appearing for the petitioner, it emerges that the petitioner had apparently given one limitation in October, 1962. This must obviously be for the default related to the year 1961-62. Even if it is assumed that it is an intimation for the default of two years of 1960-61 and 1961-62 as contended by Mr. Hussein, the default for the year 1960-61 cannot be said to have been covered by an intimation as evisaged under the proviso to sub-section (1) of section 28 of the tenancy Act. In the result, it must be treated as an intimation of the default for one year only, viz., that of 1961-1962. Then there are apparently three more intimations---all between the period of May and August, 1963 which must be deemed to be intimations for the year 1962-63. In the result, it must be treated as an intimation of the default for one year only, viz., that of 1961-1962. Then there are apparently three more intimations---all between the period of May and August, 1963 which must be deemed to be intimations for the year 1962-63. Thus the defaults of two years 1961-62 and 1962-63 are clearly covered by proper intimations. The main contest, however is relating to the default of 1963-64. there is on record an intimation which it alleged to have been sent on or about 17th of March, 1964 alleging that the respondent had failed to pay the amount of rent for the year 1963-64. It must be remembered that this was the year 1963-64 which came to an end on 31st of March, 1964. It has been mentioned in the judgment of at least one of the authorities below that the relevant date for the payment of rent is 21st March, 1964. Taking either of the two dates, the intimation of 17th March, 1964 cannot be regarded as an intimation given to the tenant of the default within a period of six months of each defaults as mentioned in the provision to sub-section (1) of section 28---An intimation for the default of the payment of rent which has to be given by a particular date, cannot be said to have been given unless that date has come to a pass. In the first instance, admittedly, it has not happened. With these fact which I take as admitted, though regarding some of which Mr. Agarwal appearing for the respondents has joined the issue, it is impossible for the petitioner to succeed in obtaining possession of the suit land. 5. This is broadly the view which has been taken by the Tahsildar who, in the first place, entertained the application of the petitioner accordingly by his judgment and order dated 29th June, 1966, he dismissed the application. An appeal preferred by the petitioner was allowed by the learned Deputy Collector, Land Reforms, Aurangabad, by his judgment and order dated 23rd March 1968 by taking view that there were three defaults and there were three intimations and, therefore, the petitioner ought to succeed. This view which is patently erroneous in the light of the reasons which I have given above was corrected by the Maharashtra Revenue Tribunal in revision application preferred by the respondents. This view which is patently erroneous in the light of the reasons which I have given above was corrected by the Maharashtra Revenue Tribunal in revision application preferred by the respondents. The learned member of the Maharashtra Revenue Tribunal, Aurangabad, while allowing the revision application being case No. 227/B/68 preferred by the respondent held that there were two intimations as required by law and the third intimation was not in accordance with law inasmuch it had been given in before the default had taken place. It is against this order of the Maharashtra Revenue Tribunal that the landlord has approached this Court under Article 227 of the Constitution. 6. Mr. Hussein appearing in support of the petition has with justifiable indignation argued that the respondent whose heirs have by this time been brought on record was contenacious defaulter from whom even partly rents had to be recovered by filing repeated application. Unfortunately for the petitioner this alone will not enable me to pass an order of eviction in the absence of legal provisions to that effect. Mr. Hussein contended that defaults of the earlier years from 1957-58 to 1959-60 also ought to have been taken into consideration and since there were three defaults upto that date and three defaults thereafter, there was adequate ground for passing an order of eviction. It is not possible to accede to this interpretation put forth by Mr. Hussain, because the defaults for the earlier years upto 1959-60 had given causes of action to the petitioner which ultimately merged in the orders passed in the proceedings initiated by the petitioner. Those cannot be taken into consideration as this stage. Mr. Hussein tried to suggest that those orders have not been complied with; in fact there were no payments made. In the first place, an order made for the payment of rent does not create a cause of action in the nature of arrears of rent. Second, there is no evidence of such non-payment through there is no evidence of the payment either. Mr. Hussein then contended that the provision to sub-section (1) of section 28 prescribes the period beyond which an intimation cannot be given; it does not prohibit giving of an intimation earlier. This is an argument of apparent plausibility. Second, there is no evidence of such non-payment through there is no evidence of the payment either. Mr. Hussein then contended that the provision to sub-section (1) of section 28 prescribes the period beyond which an intimation cannot be given; it does not prohibit giving of an intimation earlier. This is an argument of apparent plausibility. But a second look at it would show, as I have already mentioned and earlier, that an intimation of default of payment cannot be given till the date by which the payment has to be made has passed. Admittedly, in the instant case, the date for the payment of the rent had not arrived when the intimation of 17th March, 1964 was given by the petitioner to the respondent. The wording in the provision is that the landholder shall give intimation to the tenant of the default within a period of six months of each default. Obviously it means intimation subsequent to the default and not an intimation asking the tenant to make the payment before the prescribed date. Unfortunately, therefore, in view of the law as it stands, the application of the petitioner for possession of the suit land would not straight-way succeed. 7. The dismissal of the petitioners application totally, however, is unwarranted. If the conditions mentioned in the proviso are not fulfilled, an order for eviction indeed cannot be passed straight-way. But then the Tahsildar must treat the case as under the main part of sub-section (1) and ought to have proceeded to pass the appropriate order which has not been done in the instant case. I have, therefore, to remand this case back to the Tahsildar with a direction that he shall pass an order after the receipt of this writ that the respondents to this petition who have now been brought on record as the heirs of the original respondent shall tender to the landlord all the rent in arrears for 3 years together with the costs of the proceedings which he may fix within 90 days from the date of his order. He shall further direct in his order that if the tenants comply with the order, an order of ejectment shall be passed. But if the tenants do not comply with the order, an order of eviction shall follow. He shall further direct in his order that if the tenants comply with the order, an order of ejectment shall be passed. But if the tenants do not comply with the order, an order of eviction shall follow. The order which he would be passing as directed above shall be made after giving notice to the parties as soon as possible after the receipt of the writ from this Court. 8. In the result, this petition is partly allowed. The respondents shall pay the costs of the petition to the petitioner. -----