JUDGMENT - Chandurkar, C.J. -This petition has been referred to the Division Bench-by the learned single Judge (Masodkar, J.), who, in his referring order dated 17th November 1983, found that there is a conflict between two judgments of the two learned single Judges of this Court and his own judgment in Writ Petition No. 1437 of 1979 decided on 8th September 1983 (Waman Deoram Sonawane v. Shri Ganesh Mandir)1. In Waman Sonawane's case, Waman was a tenant and a decree for eviction was passed against him under the provisions of section 12(3)(a) and (b) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as “the Bombay Rent Act”). The decree for eviction was passed on default of payment of the education cess and it was contended on behalf of the tenant that such a decree could not have been under section 12(3)(a) of the Bombay Rent Act. The contention on behalf of the tenant was that the total amount due for the period 1st July 1963 to January 1971 was Rs. 3,185 and this amount was paid (1) by paying Rs. 2,860 to the Municipal Council towards the taxes and (2) by sending Rs. 325 by Money Order. Thus, according to the tenant, there was no default with regard to payment of rent and no cause of action, therefore, survived to the landlord to file a suit and obtain a decree. Reliance was placed on the decision of Dharmadhikari J. in (Ayodhyabai v. Sumapchand)2 and on the decision of Pratap J. in (Shamrao v. Chaturbai)3. 2. On behalf of the landlord, the respondent, reliance was placed on the decision of the Supreme Court in Mranalini Shah v. B W. Shah, the effect of which, according to the learned counsel for the landlord, was not considered in the two decisions referred to above. The learned Judge found that right from 1st July 1963 to 31st January 1971 rent was in arrears and the tenant was in default and rent was not paid every month but in two lump sums referred to above. It was also found that the tenant paid rent for four months and three months respectively and the education cess for the period from 1st October 1962 to 30th September 1967 worked out to Rs. 42 and for the further period from October 1967 to December 1970 it worked out to Rs. It was also found that the tenant paid rent for four months and three months respectively and the education cess for the period from 1st October 1962 to 30th September 1967 worked out to Rs. 42 and for the further period from October 1967 to December 1970 it worked out to Rs. 32.2 making a total of Rs. 75.25. It was found that the educa-tion cess was covered by the term “permitted increases” and the amount of education cess was not deposited in spite of the notice in the Court when the suit was filed nor did the tenant continue to deposit even the stipulated rent every month during the pendency of the suit or during the pendency of the appeal in the appeal Court. Taking the view that in such a case sec-tion 12(3)(a) of the Bombay Rent Act was not attracted, the learned Judge took the view that the tenant had not complied with the condition required for the protection of section 12(3)(b) which must also lead to the conclusion that he was a defaulter in the matter of payment of rent and that he was not ready and willing to discharge his liability. The learned Judge further held that the cause of action for the rent suit is one that arises upon the issuance of notice terminating the tenancy as contemplated by sub-section (2) of sec-tion 12 of the Act and once the notice is given a suit can be filed. it was pointed out that in such a suit how the relief of eviction can be granted is provided for by subsection (3) of section 12 of the Act and even when a decree for eviction cannot be made under section 12(3)(a) of the Act, a decree for eviction can be made if the tenant fails to protect himself by complying with the conditions available in clause (b) of section 12(3). Thus, it was held that the lower appellate Court was right in making a decree for eviction. 3. In Shamrao's case Pratap J. took the view on the facts in that case notice sent under section 12(2) of the Bombay Rent Act and, therefore, a suit could not have been filed for possession of the premises on the ground of non-payment of rent. It was held that there was no cause of action for the suit filed in that case. It was held that there was no cause of action for the suit filed in that case. Reliance was placed on the earlier decision of Vaidya J. in (Marutrao Bhaurao v. Akbaralli)5. In that case Vaidya J. held on the facts of that case that if the tenant was ready and willing to pay the rent as required by section 12(1} of the Bombay Rent Act, the landlords were not entitled to possession under section 12(3)(a) of the Act and that merely because the payment was made by cheque, the Court could not assume that the tenant was not ready and willing to pay rent to the landlords. 4. It is necessary at this stage to refer to the facts of the present case. The concurrent findings of both the Courts below which have not been disputed before us, and rightly so, are that when a notice under section 12(2) of the Bombay Rent Act demanding arrears of rent from March 1972 upto May 1973 was sent on 15th June 1973 and was received by the tenant on 21st Jane 1973, the tenant had sent the entire amount of Rs. 75 by Money Order on 17th July 1973 which was refused by the landlord. The landlord filed the suit on 1st September 1973 claiming possession under sec- tion 12(3)(a) of the Bombay Rent Act. The trial Court found that though the plaintiff had refused to accept the entire amount of rent, the defendant-tenant had thereafter not paid the rent regularly, and on the first date of hearing he asked for permission to pay the rent due from 31st October 1974, but that amount of Rs. 305 came to be deposited only on 8th June 1976. It was found that thereafter also the tenant did not pay rent regularly and, therefore, according to the learned trial Judge the tenant was not entitled to protection under section 12(3)(b) of the Bombay Rent Act. In appeal, the lower appellate Court held that the tenant had never been regular in pay- ment of rent after the filing of the suit and he was, therefore, not entitled, to protection under section 12(3)(b) of the Bombay Rent Act. The decree for possession was, therefore, confirmed. 5. In appeal, the lower appellate Court held that the tenant had never been regular in pay- ment of rent after the filing of the suit and he was, therefore, not entitled, to protection under section 12(3)(b) of the Bombay Rent Act. The decree for possession was, therefore, confirmed. 5. When this petition came up before the learned Single Judge (Masodkar, J.), it was contended on behalf of the tenant that having remitted ihe entire amount demanded under section 12(2) and the landlord having declined to receive the amount, the notice under section 12(2) had exhaust- ed itself and no cause of action, therefore, survived which could enable the landlord to file a suit for eviction In other words, the argument was that the question as to whether the tenant was entitled to protection under sec- tion 12(3)(b) or not did not really arise, because the suit itself was not maintainable inasmuch as in so far as the first notice under section 12(2) was concerned, that had exhausted itself and secondly, no further notice was given as contemplated by section 12(2) which the landlord was bound to give if he claimed possession on the ground of arrears of rent other than those which the tenant had already remitted in pursuance of the first notice under section 12(2). The learned Single Judge felt himself bound by the view which he took in Waman Sonawane's case (cited supra) on the basis of the decisions of the Supreme Court in (Dhansukhlal v. Dalichand)6, (Harbanslal v. Prabhudas)7 and Ganpat v. Sashikant. These decisions, according to the learned Judge, settled the law that as far as section 12(3)(b) of the Bombay Rent Act was concerned, it was for the tenant to satisfy all the conditions in that he had to pay or tender in Court all the arrears then due on the first day of hearing of the suit or on or before such other date as the Court may fix regularly such rental liability till the suit is finally decided, and there is no extinction of the cause of action by reason of payment of existing arrears. According to the learned Judge, to avoid a decree, once the notice is given, the tenant has to fulfil the conditions laid down by section 12(3)(b) of the Bombay Rent Act. 6. According to the learned Judge, to avoid a decree, once the notice is given, the tenant has to fulfil the conditions laid down by section 12(3)(b) of the Bombay Rent Act. 6. With respect to the learned Judge, it has to be pointed out that the question involved in the present petition is not whether the provisions of section 12(3)(b) of the Bombay Rent Act can be availed of by the tenant. -The contention which is raised before us relates to the maintainability of the suit itself and, as already pointed out, the contention is that on the.find-ing that the entire amount of rent demanded by the notice under sec- tion 12(2) was sent by money order within the period of one month of the date of the notice and was refused by the landlord, there is no cause of action for the suit for eviction at all. We are, therefore, concerned with the limited question as to whether in such a case where the tenant has already remitted the entire amount due and demanded by the notice under section 12(2) of the Bombay Rent Act, such compliance with the said notice, or alternatively, where the amount so sent by the tenant is refused by the landlord, such refusal, has to be treafed as equivalent to payment and whether a cause of action for asking for a relief of eviction at all survives and a suit for eviction can be filed by such a landlord. 7. Section 12(2) of the Bombay Rent Act creates a positive bar in respect of a suit for recovery of possession and it expressly provides that no suit for recovery of possession shall be instituted by a landlord against a tenant on the ground of non-payment of 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 section 106 of the Transfer of Property Act, 1882. Sub-section (3)(a) undoubtedly provides that if the tenant is in arrears of rent for a period of six months or more and the tenant neglects to make payment thereof within a period of one month after the notice referred to in sub-section (2), the Court has to pass a decree for eviction in any such suit for recovery of possession. Sub-section (3)(a) undoubtedly provides that if the tenant is in arrears of rent for a period of six months or more and the tenant neglects to make payment thereof within a period of one month after the notice referred to in sub-section (2), the Court has to pass a decree for eviction in any such suit for recovery of possession. It is well established that clause (b) of sub- section (3) of section 12 applies to a case which does not fall under clause (a). Attention must also be invited to the provisions of subsection (1) of sec- tion 12 which provides that a landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays, or is ready and willing to pay, the amount of the standard rent and permitted increases, if any, and observes and performs the other conditions of the tenancy, in so far as they are consistent with the provisions of the Bombay Rent Act. The scheme of sub-sections (1), (2) and (3) of section 12, therefore, is that if a tenant is ready and willing to pay the amount of standard rent and permitted increases, a landlord is not entitled to recovery of possession. The tenant has been given one month's time during which he must pay the rent which is demanded by a notice under section 12(2) and if he does not pay that rent or the amount due, then the consequences specified in clauses (a) and (b) follow depending upon which clause is attracted to the facts of a given case. One thing which is, however, clear on the face of section 12 and its provi-sions is that if the tenant pays the arrears demanded by the notice under section 12(2), then the landlord is not entitled to file a suit for possession on the ground of arrears in respect of which he has to give or has given a notice under section 12(2). In such a case, the provisions of sub-section (1) will also come into operation because if the tenant pays the amount required to be. paid by the notice under section 12(2), then the tenant is a person who is ready and willing to pay the standard rent and the permitted increases, as the case may be, and the landlord is disabled from filing a suit for recovery of possession. paid by the notice under section 12(2), then the tenant is a person who is ready and willing to pay the standard rent and the permitted increases, as the case may be, and the landlord is disabled from filing a suit for recovery of possession. In a case where the tenant has paid or must in law be deemed to have paid the amount demanded by the notice under section 12(2), not only are the provisions of section 12(3) (a) not attracted, but there is no occasion to callin aid the provisions of section 12(3)(b), because even the provisions of section 12(3)(b) will be attracted only if there is a claim for recovery of possession. If by the compliance with the requirements of the notice under section 12(2) the landlord is disabled from filing a suit for recovery of possession, there is no question of the provisions of section 12 (3) (b) being attracted at all. 8. In the referring judgment reference has been made to the three Supreme Court decisions which, in our view, and with respect, were not relevant for the decision of the question which arises before us. In Dhansukhlal's case (Supra), the facts show that the tenant was in arrears of rent on the date on which the landlord filed the suit because the tenant had not made payment even though he had received the notice under sec-tion 12(2) of the Bombay Rent Act. The notice in that case was dated 18th April 1955 demanding the arrears of rent and, as the Supreme Court observ-ed, “No reply was sent thereto nor was any payment made to the plaintiff.”. The suit for ejectment in that case was filed on 15th March 1956 on the ground that the defendant was in arrears of rent and permitted increases and was, therefore, not entitled to the protection of the Bombay Rent Act. The judgment of the Supreme Court shows that in that case, the applicability of section 12(3)(a) was not canvassed and the High Court had found that there being default on the part of the defendant, the operation of sec-tion 12(3)(b) of the Bombay Rent Act was attracted. Even before the Supreme Court the material question raised was whether applying sec-tion 12(3)(b) there was no default on the part of the defendant which would render him liable to eviction. Even before the Supreme Court the material question raised was whether applying sec-tion 12(3)(b) there was no default on the part of the defendant which would render him liable to eviction. It was while dealing with this contention that the Supreme Court held that to be within the protection of section 12(3)(b), the tenant must not only pay all the arrears due from him on the first day of hearing of the suit, but he must thereafter continue to pay and tender in Court regularly the rent and the permitted increases till the . suit is finally decided. Dhansukhlal's case was, therefore, a case which dealt only with the provisions of section 12(3)(b) on the admitted position that no payment was made in pursuance of the notice under section 12(2). 9. HarbanslaVs case (Supra) dealt with the limited question as to what should be done in order to avoid the operation of section 12(3)(a) and it was held that in order to avoid the operation of section 12(3)(a) of the Bombay Rent Act, the dispute in regard to the standard rent or permitted increases must be raised at the latest before the expiry of one month from the date of service of notice under section 12(2) of tne Act and it was not enough to raise the dispute for the first time in the written statement, in Harbanslal's case, the notice dated 14th November 1966 was issued terminat- ing the tenancy on the ground that the tenant had paid rent only up to August 1964. This notice was received by the tenant on the 6th December 1966 and the suit was tiled on 2nd February 1967. In the other connected appeal decided by the same judgment, the notice terminating the tenancy was dated 5th April 1963 and the suit was filed on llth September 1963. The arrears were alleged to be for the period from 15th March 1960 to 15th March 1963 for a period of more than six months. The arrears were not paid within a period of one month irom the date of the notice but were paid only on 23rd December 1964, that is, long after the suit was filed. 10. The arrears were alleged to be for the period from 15th March 1960 to 15th March 1963 for a period of more than six months. The arrears were not paid within a period of one month irom the date of the notice but were paid only on 23rd December 1964, that is, long after the suit was filed. 10. Mranalini's case was once again a case which was decided with reference to the provisions of section 12(3)(b) of the Bombay Rent Act and the question as to whether the arrears of rent having been paid within the period of one month Irom the date of service of the notice under sec- tion 12 (2), a suit for eviction could not be filed did not arise. 11. The learned Judge in the present case has taken the view that “once a notice under section 12(2) of the Bombay Rent Act is given terminat- ing the tenancy on the ground of non-payment of rent, the landlord is entitled to file a suit and maintain it and in case the conditions of sec- tion 12(3)(a) are satisfied, he is entitled to a decree under section 12(3)(b) of the Act, if the tenant has not availed of the protection afforded by that provision” and that once the notice is issued, “what reliefs can be given are provided for by section 12(3)(a) and section 12(3)(b) of the Act”. These observations, in our view, overlook the fact that it is implicit in the provisions of section 12(2) that if within a period of one month specified in section 12(2) the tenant pays the entire amount of rent demanded by the notice, then the landlord does not have a right to file a suit for recovery of possession. Further, once there is no cause of action for a suit for recovery of possession, the question as to whether the tenant claim the protection of section 12(3)(b) cannot also arise. 12. Further, once there is no cause of action for a suit for recovery of possession, the question as to whether the tenant claim the protection of section 12(3)(b) cannot also arise. 12. it has to be pointed out that when the tenant pays the entire amount demanded by the notice under section 12(2), the notice becomes ineffective and in case the landlord wants to claim possession on the ground of arrears of rent for,the period other than that in respect of which the notice has been given, the provisions of section 12(2) will once again come into operation and the landlord will have to serve a fresh notice because the arrears for non-payment of which possession is now claimed are not arrears in respect of which a notice contemplated by section 12(2) had been earlier given. Service of a notice under section 12(2) is a condition precedent to a claim for possession on the ground of arrears of rent and such a claim can-not be made unless a period of one month is allowed to expire from the date of service of the notice. We are, therefore, unable to agree with the view of the learned Judge that there is no extinction of cause of action by reason of the existing arrears demanded by the notice under section 12(2). 13. While making the reference the learned Judge has referred to his earlier decision in Waman Deoram Sonawane v. Shri Ganesh Mandir and another, the facts of which we have already referred to above. The facts of Waman Deoram's case will show that the tenant was in arrears of education cess which admittedly was covered by the term “permitted increases”. To quote from the judgment of the learned Judge in paragraph 5 : “It is also not in dispute that this balance of education cess which was overdue was not deposited in spite of the notice in the Court when the suit was filed nor did the tenant continue to pay or deposit even the stipulated rent every month during the pendency of the suit or during the pendency of the appeal in the appeal Court.” The judgment shows that the suit was filed on the basis of default in pay-ment of rent and permitted increases after the notice under section 12(2) was served. That was, therefore, a case which expressly fell under sec-tion 12(3)(b) of the Bombay Rent Act and was, therefore, clearly distinguishable. 14. We must also, therefore, further hold that the view taken in AyodhyabaVs case and in (Eknath Radhakishan Bajaj v. Madhav Bhagwan Bhore)9 is the correct view. 15. On the facts of the present case it must, therefore, be held that on the finding recorded, the refusal of the landlord to receive the entire amount of rent as was demanded by the notice under section 12(2) of the Bombay Rent Act must be treated for the purposes of sub-sections (1) and (2) of sec- tion 12 as being equivalent to payment and on this finding, no suit for the recovery of possession for non-payment of those arrears could have been filed, by the landlord and no decree for possession could have been asked for by him in his favour. 16. The decree for possession passed by the trial Court and confirmed by the appellate Court as well as the decree for costs against the present petitioner is, therefore, set aside. Having regard to the uncertain legal posi- tion, the proper order for costs, in our view, would be that each party bears its own costs throughout. Petition allowed. Decree for possession set aside. -----