JUDGMENT- This petition involves an interesting question of law, which does not seem to be fully covered by decisions. 2. House No, 2737 situate in Ward No.6 in the City of Ahmednagar is owned by the respondents. The petitioner is a tenant of a shop, paying Rs. 25 per month as rent. As to what is the exact area in his possession, there is no clear evidence. The Petitioner's counsel says that it admeasures one 'Khan'. 3. On 24th March 1969, the respondent-landlord filed, this suit against the tenant after giving a notice to quit on three grounds. It was contended that the tenant-defendant was a defaulter and had not paid rent. It was also urged that the plaintiff- Trust required the premises for its bona fide occupation and thirdly that 'the plaintiff-trust' desired to demolish these premises and construct thereon a new building. 4. The suit was resisted by the defendant, who also disputed the standard rent. According to him, he had paid the rent, that plaintiff-trust demanded further tent at a Higher rent, that the Trust did not require the premises for bona fide occupation, that the Trust did not require the premises for demolition and reconstruction and that the suit was not maintainable under the provisions of section 13 (1)(hh) read with sub-section 3A of the Bombay Rent Act. 5. The trial Court held that the tenant was not a defaulter. But he answered all other questions in favour of the Trust viz. that the Trust required the premises bona fide for the occupation and that it was also entitled to possession on the ground that the premise's were required for demolition and reconstruction. 6. An appeal was taken to the District Judge by the tenant and the learned District Judge, who heard that Appeal being Civil Appeal No. 176 of 1973, raised before him only three points for determination. Those were (1) whether the plaintiff required the premises reasonably and bonafide for the immediate purpose of demolishing and construction; (2) whether in the absence of the Certificate of the Tribunal at the time of the institution of the suit and an undertaking at the time of the institution of the suit was fatal to the maintainability of the suit and (3) whether the Certificate of the Tribunal was vitiated as it was issued without hearing the defendant i.e. the appellant before him. On all these questions, he held in favour of the plaintiff-respondents and, therefore, dismissed the appeal and confirmed the decree passed by the trial Court. It is against this judgment and decree that the present petitioner bas filed this petition. 7. Mr. Damle, who appeared for the petitioner, contended before me that the Courts below did not consider the effect of non-production of the Certificate and non-compliance with the provisions of sub-section 3A at all. According to him, the Certificate was produced after the evidence was over and at the fag-end of the trial. The defendant-petitioner has no opportunity to show that the undertaking, which the Respondent-Plaintiff filed in the Court also after the evidence was recorded and just few day before the decree, was an undertaking not in compliance with sub-section 3-A of Section 13 as contemplated by it. He submitted that this has caused great prejudice to him. Where a landlord is granted a decree for eviction on the ground that he requires the premises reasonably and bona fide for the purposes of demolition and for reconstruction of a new building, sub-section 3-A of section 13 lays down that such a permission can be granted only when the landlord complies with the conditions mentioned therein. It was Mr. Damle's submission that that pre-supposes the production and possession of a certificate by the landlord at the time of the institution of the suit. It also pre-supposes, according to him, that the undertaking must· be given when the suit is instituted. According to him, such an undertaking must be incorporated in the plaint itself. The undertaking consists of several parts and it .was submitted that unless, the undertaking is before the Court, when the parties led evidence, it is not possible either for the parties to show that the undertaking is not in accordance with the law, or incapable of being complied with nor can the Court before passing a decree, record its finding that the land-lord-plaintiff has complied with the requirements of subsection 3-A. 8. It was his submission that the requirements of sub-section 3B of section 13 of the production of Certificate and the evidence in that behalf; were liable to be challenged by the defendant. It was his submission that the requirements of sub-section 3B of section 13 of the production of Certificate and the evidence in that behalf; were liable to be challenged by the defendant. Where such a certificate, a sanctioned plan and permission and undertaking is not produced before the defendant leads his evidence, there is no duty cast upon him to show that the certificate is not proper, that the undertaking is insufficient or that there is no compliance. He pointed out that in the present case, the evidence of the parties was over on 9th January 1973. Assuming that such an undertaking could be produced on 18th January 1973, the Court does not seem to have accepted that undertaking, while documents viz., plan, ·certificate etc. have been exhibited later without recording any reason as to why and how these documents were proved or exhibited. The arguments were heard on 19th January 1973 itself and the Court proceeded to deliver the judgment and decree on 30th January 1973. This according to Mr. Damle, resulted in a grave prejudice and injustice to the Defendant. 9. On behalf of the Plaintiffs-Respondents, it was submitted that it has been held in the decision reported in (Sharangdhar Purushottam Kanhere v. Sitaram Mahadeo Dabholkar and another1) that the provisions of section 13 sub-section 3-A of the Bombay Rent Act, are not mandatory and are merely directory. If, therefore, an undertaking, a certificate and plans etc. were produced even before a decree was passed, that is compliance with the provisions of sub-section 3-A. Such a compliance, according to him, had been made in this case and if the provisions are not mandatory, at what time these documents were produced, is not material. He seems also to suggest that if there was any prejudice caused to the defendant-tenant then a complaint should have been made immediately. Such a complaint does not appear to have been made and, therefore, no prejudice is caused. I am unable to accept these contentions. 10. The only ground upon which the landlord in this case has succeeded against the tenant in obtaining a decree for eviction is the ground incorporated in Section 13 sub-section 1 (hh). So far as sub-section 3-A of Section 13 is concerned, it seems that it imposes certain additional requirements, and compliance with those requirements is a pre-condition before a decree for eviction can be passed. So far as sub-section 3-A of Section 13 is concerned, it seems that it imposes certain additional requirements, and compliance with those requirements is a pre-condition before a decree for eviction can be passed. It is this aspect of the matter to which the Courts below were not alive. It would, therefore, be necessary to refer to the provisions of Section 13 sub-section 1 (hh) and sub-section 3-A as are relevant and material. 11. Section 13 sub-section 1 clause (hh) empowers a landlord to recover possession of any premises demised to a tenant, if the Court is satisfied that the premises consist of not more than two floors and are reasonably and bona fide required by the landlord for the immediate purpose of demolishing them and such demolition is to be made for the purpose of erecting a new building on the premises sought to be demolished. This is followed by sub-section 3-A which is as follows: "(3-A). No decree for eviction shall be passed on the ground specified in clause (hh) of sub-section (1) unless the landlord produces at the time of the institution of the suit a certificate granted by the Tribunal under sub-section (3-B) and given an undertaking:- (a) that the new building to be erected by him shall subject to the provisions of any rules, by-laws or regulations made by a local authority, contain not less than two times the number of residential tenements, and not less than two times the floor-area, contained in the premises sought to be demolished: (b) that the work of demolishing the premises shall be commenced by him not later than one month, and shall be completed not later than three months, from the date he recovers, possession of the entire premises; and (c) that the work of erection of the new building shall be completed by him not later than fifteen months from the said date." It is not necessary to refer to the proviso to this sub-section as it is not relevant for our purposes. Sub-section 3 B deals with the issuance of a certificate by an Authority constituted by the State Government and the rules in that behalf. 12. The plaintiff, in this case, in his plaint, only stated that the property in suit is necessary to be vacated as the plaintiff wants to reconstruct a building from the plinth thereon" (Translated). Sub-section 3 B deals with the issuance of a certificate by an Authority constituted by the State Government and the rules in that behalf. 12. The plaintiff, in this case, in his plaint, only stated that the property in suit is necessary to be vacated as the plaintiff wants to reconstruct a building from the plinth thereon" (Translated). He did not make any reference or suggestion in the plaint that he required such premises bona fide and reasonably for Immediate purpose of demolishing them and such demolition is to be made for the purposes of erecting a new building." He also does not make any mention that the premises do not consist of more than two floors. Nevertheless, it seems that the parties went to trial in this indifferent and insufficient state of pleadings and it was assumed that the premises do not consist of more than two floors and the landlord's requirement was reasonable and bona fide. This assumption has become so much grounded in the proceedings below, that certain very obvious circumstances, which appear on the face of the record, have not even been considered and gone into by the Courts below. It is obvious in such a case that if the documents were allowed to be produced and exhibited after the evidence was over and at the stage of the arguments, prejudice, would be caused to the defendant. 13. The first question that requires to be decided is whether there was compliance with the provisions of sub-section 3A of section 13. Now, it is clear from the scheme of the entire section 13 that a landlord would be entitled to recover possession of the premises only if "the Court is satisfied" of the conditions and requirements of any of the sub-clauses of sub-section 1. Under the Scheme of the Rent Act otherwise, as section 12 (1) says, a landlord is not entitled to possession except under circumstances mentioned in that section and section 13. Sub-clause (hh) is a part of sub· section 1 of section 13. Therefore, it is obvious that the landlord would be entitled to recover possession of the premises which are not more than two floors, if they are "reasonably and bona fide required by the landlord" for immediate purpose of demolishing them and for erecting a new building, provided the Court is so satisfied. Therefore, it is obvious that the landlord would be entitled to recover possession of the premises which are not more than two floors, if they are "reasonably and bona fide required by the landlord" for immediate purpose of demolishing them and for erecting a new building, provided the Court is so satisfied. Where the Court is not so satisfied, there can be no question of passing a decree in favour of the landlord. 14. Sub-section 3A of section 13, however comes into play only where the Court is satisfied that the landlord is entitled to recover possession of the premises. The Court must be satisfied that the requirement is both reasonable and bona fide. The object of demolition must be for purposes of a new construction. Where the Court, therefore, is satisfied of that contingency, then only, it has to address itself to the question whether a decree should be passed. Sub-section 3A then lays down conditions in which such a decree can only be passed. The opening words of sub-section 3A begin with the words "No decree for eviction shall be passed on the ground specified in clause (hh) of sub-section 1". It, therefore, follows that sub section 3A comes into play only after the requirements of section 13(1)(hh) are satisfied. It then proceeds to lay down conditions for passing a decree for eviction and says, as pointed out above, that such a decree shall not be passed "unless the landlord produces at the time of the institution of the suit, a certificate granted by the, Tribunal under sub-section (3B) and gives an undertaking". Sub-section 3A, therefore, indicates that even if the landlord satisfies the Court about his bona fide and reasonable requirement for the purposes of demolishing and reconstruction of a new building, no such a decree shall be passed unless the landlord also satisfies two conditions viz. (1) production of a certificate contemplated under subsection (3B) and (2) giving an undertaking, The sub-section also indicated the stage at which both these conditions must be satisfied. That stage is "at the time of filing of the suit." In other words, the section indicates that these two conditions must be satisfied and complied with at the time of the institution of the suit. 15. That stage is "at the time of filing of the suit." In other words, the section indicates that these two conditions must be satisfied and complied with at the time of the institution of the suit. 15. As to what is the nature of these requirements and whether they are mandatory or directory, a question arose in the case of Sharangdhar Purushottam Kanhere v. Sitaram Mahadeo Dabholkar & another and was answered by my brother Judge Kanade, that they are not mandatory. 16. Mr. Damle, however, relied upon certain observations in paragraph 12 of that Judgment. It may be stated that it is possible to suggest that the question did not directly arise in that case. What had happened in that case was that a landlord who wanted to demolish a certain building and erect a new one wherein there were nine persons residing as tenants. For that purpose, the landlord submitted plans to the Municipal Corporation, Poona, obtained its sanction and then proceeded to an application to the Tribunal constituted under sub-section (3B) of section 13 and also obtained a certificate from that Tribunal. Armed with these documents, he proceeded to terminate the tenancy of these tenants and did so. Thereafter, he commenced nine proceedings against different tenants. In one of these suits, he produced the certificate in its original. In other suits, he mentioned in the list of documents that was filed in those suits, that the certificate in original has been filed in that particular suit. Three of these tenants reached the High Court in a petition and one of the contentions which was raised in their behalf was, in whose case the original certificate was not produced, that in the absence of the production of the certificate along with the suit, no decree could be passed. It is in this context that the observations in paragraph 12 of the Judgment were made. 17. These observations upon which reliance is placed are: "The landlord must satisfy the Tribunal which is appointed under section 13 (3B) of the Act, the requirement of that sub-section (3B) and having obtained that certificate, he, must terminate the tenancy of the tenant, indicating that he intended to demolish the existing building for the purposes or erecting a new building as per the requirement laid down in sub-section (3A), and thereafter file a suit against the tenant. Unless all these compliances are made, the landlord is not entitled to file a suit." It was, therefore, urged that before a certificate is obtained, the landlord cannot even give a notice of termination of the tenancy and cannot also file a suit. The learned Judge then proceeded to point out that in a particular case, production of the certificate may not be made or is not possible to be made, at the time when the suit is filed as in that case. The emphasis, therefore, in his opinion, was not on the words "at the time of the institution of the suit", but possession, "though production thereof may be delayed." It was pointed out that it is possible that the landlord may be in possession of a certificate, but he is still not in a position to produce the same for some good reason or the other. It was, therefore, held that the provisions of sub-section 3 (A) of section 13 are directory and not mandatory. 18, Relying upon these observations, it was submitted that if these words are merely directory and not mandatory, then the production of the certificate and the giving of an undertaking can be deferred upto the stage of the passing of the decree. As to at what stage and at what material stage such a certificate and such an undertaking must be given, therefore, is a question which requires to be determined. Now, it seems to be obvious that the intention of the Legislature is requiring a landlord to produce a certificate and to give all undertaking at the time of the institution of the suit is to fore-warn the defendant tenant that the landlord has complied with the provisions of sub· sections of (3A) and (3B). If such a warning is not available in a given case to a tenant, then the very purpose of incorporating both, the stage as well as the requirement of production of these documents and the undertaking would be frustrated. A tenant would not be able to know, if the stage for production of a certificate and giving of an undertaking is left to just a little while before a decree is being passed, that the undertaking or the certificate is either not in accordance with sub-section (3A) or the certificate is vitiated for other reasons. A tenant would not be able to know, if the stage for production of a certificate and giving of an undertaking is left to just a little while before a decree is being passed, that the undertaking or the certificate is either not in accordance with sub-section (3A) or the certificate is vitiated for other reasons. A certificate issued under sub-section (3B) presupposes the existence and submission of sanctioned plans and estimates and also availability of funds for the purposes of erection of a new building. Whether neither the plans nor the estimates nor the availability of the funds which are the basis of the certificate are available or disclosed· by reason of the certificate, it would not be possible for a tenant defendant to assail the landlord's evidence in that behalf. It would be possible for him to show that the certificate though issued in accordance with the requirements of the rules, is in reality not a certificate which is proper. It has not considered the relevant matters and aspects. It may be pointed out in this connection that sub-clause (b) (i) of sub-section (3B) mentions the production of plans and estimates of a new building. On the other hand, sub-clause (a) of sub-section (3A) specifies giving of an undertaking, according to which, the landlord must say that the new building to be erected by him shall be "not less than' two times the number of a residential tenements and not less than two times the floor area". It would be possible, therefore, for a tenant to point out, though a certificate is issued by the Tribunal, that the Tribunal has not considered while considering the plans and intimates and giving the certificate whether the requirements of sub-section (3A) have been satisfied. It is only then that it would be possible for a tenant to show that though the certificate is granted, the certificate is vitiated for want of consideration of material and important aspects of the matter. If the certificate, under· such circumstances, is not a proper certificate, it follows that the landlord is not entitled to a decree for eviction. 19. The other requirements of the undertaking under sub-section (3A) operate on a different field. It refers to the demolition and construction of a new building. That also involves possession and availability of the funds for the kind of work to be undertaken. 19. The other requirements of the undertaking under sub-section (3A) operate on a different field. It refers to the demolition and construction of a new building. That also involves possession and availability of the funds for the kind of work to be undertaken. In a given case, the cost of construction of a building, which the Court has to consider, and would be required to consider while passing a decree under sub-section (3A), is a material factor in order to determine whether necessary funds are available with the landlord. It is possible that time may elapse between the time a certificate is issued and the Court passing decree. In the meantime, there may be such escalation of cost that the building proposed to be newly erected, has become out of the reach of the landlord, unless the landlord is able to satisfy the Court at the time of passing of the decree and, therefore, during the course of the evidence that the additional requirement of the finance is also available to him. 20. It seems to me, therefore, and though I am in agreement with the observations in Sharangdhar's case that the words of sub-section (3A) to the effect that certificate must be produced and undertaking given at the time of the institution of the suit, are directory and not mandatory, considering the intention of the Legislature in enacting these conditions and passing this sub-section, the stage at which and before which the certificate as well 8S the undertaking must be produced, seems to be quite clear. That stage, is in any event, before the evidence is commenced so that the defendant tenant is well aware as to What he has to meet, and the plaintiff can satisfy the Court that he proposes to comply with sub-section (3A) and has also complied with sub-section (3B). Unless it is possible for the Court to satisfy for itself, and unless it is possible for the parties to adduce evidence and to demonstrate that it is possible for the landlord to do so, it cannot be said that a decree can properly be passed for eviction. The stage, therefore, which is indicated by these words, even if the words are not mandatory is a stage in any event before the parties go to evidence. The stage, therefore, which is indicated by these words, even if the words are not mandatory is a stage in any event before the parties go to evidence. I may in this connection refer to the observations of the Supreme Court in Collector of Monghyr and others v. Keshav Prasad Goenka and others2: "It would, inter alia, depend on whether the requirement is insisted, on as a protection for the safeguarding of the right of liberty of person or of property which the action might involve." If the section is intended for the protection of the tenants and to safeguard their right to possession of the property demised, and to give a right to the landlord to recover possession only on certain conditions, then the safeguards should be real and not illusory. The stage at which these safeguards must be available has to be determined from the wording of the section. Though the wording of the section, under certain circumstances, may not be imperative as is the present case, nevertheless in order to protect those interests and' to safeguard the rights of the tenants, the stage for producing the certificate" and giving of the undertaking, cannot be deferred to such an extent that it can be done, as has been urged, just before the decree is passed. If such an interpretation is accepted, then the plaintiff can hand over the certificate as well as the undertaking to the Court just at the time when the Court is about to pass a decree. I do not think that that is contemplated by the Legislature in enacting these sections. On the other hand, the intention of the Legislature seems to be quite clear by the words employed. Even though the words at the time of the institution of the suit may not be capable of introducing a fatality, if the suit is Instituted without producing the certificate and undertaking, the words are strong enough to indicate that the certificate and the undertaking must be produced at the earliest stage, and in any event before the plaintiff-landlord commences his evidence or before the trial. 21. Considered from that aspect of the matter, it is clear that in the present case, there was no compliance at all either with the undertaking or with the production of the certificate by the respondent. The documents in question seem to have been produced on 5th October 1971. 21. Considered from that aspect of the matter, it is clear that in the present case, there was no compliance at all either with the undertaking or with the production of the certificate by the respondent. The documents in question seem to have been produced on 5th October 1971. The petitioner tenant objected to their being exhibited. Nevertheless and though these documents were not proved, they were exhibited. The learned trial Judge ordered them to be exhibited without giving any reason in the order sheet dated 19th January 1973 when the arguments were heard. He did not also bother to consider whether there was compliance with the requirements of sub-section (3A), particularly with that part of the undertaking contemplated in clause (a). The plan, in this case which is produced, goes to show that the plan was submitted in the year 1960 and the municipal permission was granted in the year 1961 as the endorsement on the reverse of Exh.80 would go to show. Nevertheless, another sanction or permission is produced which is dated 18th April 1970 at Exh. 81. It is not clear as to which was the plan which is described therein as "revised detailed plan", according to which, sanction was given for building. The plan which was sanctioned in the year 1961 normally, according to the rules and regulations prevailing under the Municipal laws, would be useless after a period of one year. Exhibit 81 does not refer to the plan submitted in the year 1960. Though that was so, and the plan which was submitted which received sanction on 18th April 1970 was not produced, still the Courts proceeded to think that the plaintiff's requirement of these premises for the purposes of demolishing and reconstruction of a building was both reasonable and bona fide. It is clear that they have not applied their mind to the basic questions which were involved in this case. In the absence of the plan, it is not possible to know whether in the proposed new construction, twice the number of residential tenements and twice the floor area of the premises proposed to be demolished is provided for. It is not known whether there are any residential premises apart from the one which is the subject-matter of this suit in the building which is sought to be demolished. It is not known whether there are any residential premises apart from the one which is the subject-matter of this suit in the building which is sought to be demolished. It is not known whether twice the floor area of the proposed demolition area was provided. If we look to the map which was sanctioned in the year 1961, it does not provide for such a construction. 22. Turning to the so-called undertaking given on 18th January 1973, the undertaking is couched in as vague words as possible. It merely says that the landlord will comply with the requirements of sub-section (3A) of section 13 and he will demolish the building within three months from getting possession and reconstruct within a period of 15 months. There is no undertaking that twice the number of residential premises would be provided and twice the floor area of the proposed demolished premises would also be provided. When this undertaking was produced, the Court directed the other side to give its say, the only order which was passed thereafter on this document by the Court on 18-1-1973 was to file that document. That order, therefore, clearly means and would indicate that the Court did not take that undertaking into account and did not consider it as worthwhile. Nevertheless, a mention of the document has been made in the Order-sheet as Exh. 79. There does not appear any such endorsement, on this document as an exhibit. The order of the Court passed thereon is that the undertaking was filed. It can only with great difficulty be tantamount to accepting the undertaking. Unless the undertaking given by the landlord is accepted, it cannot be said that undertaking as contemplated was given. The word “filed" does not show that the Court has accepted the undertaking. If that is so and there is no undertaking in this case given by the landlord, the landlord was clearly not entitled to a decree for eviction. 23. The result of the aforesaid discussion is that there was a total failure to comply with the provisions of section 13 sub-section (1) (hb) and (3A) and also the stage at which such compliance ought to have been made. Consequently, the decree passed against the tenant-petitioner must be set aside and the petition allowed. The respondents shall pay costs of the petitioner and bear their own. Rule made absolute with costs. Petition allowed.