Rameshchandra P. Panchal v. Vithalbhai P. Patel — 1995 DIGILAW 365 (GUJ)

J. N. BHATT, J. ( 1 ) SHOULD the interim rent as directed by the Court, or the final order of standard rent, govern the case, to claim statutory umbrella, of Section 12 (3) (b) of the Bombay Rents, Hotel and Lodging house Rates Control Act, 1947, is the main theme and the heart of this revision, under Section 29 (2) of the Bombay Rent act. ( 2 ) IN this revision, at the instance of an unsuccessful tenant, the sole and short, but substantial and significant question which has arisen for judicial scruity and adjudication, is "whether the petitioner- tenant facing an ejectment decree on the ground of non-payment of rent is eligible to claim the benefit of protection of section 12 (3) (b) of the Bombay Rent Act, even if he does not pay the arrears of rent then due, on the first day of hearing of the suit and thereafter regularly in the suit, though interim rent is fixed contending that the final order of standard rent was not passed?" ( 3 ) IN order to examine and appreciate the aforesaid issue before this Court, the factual matrix leading to the rise of this revision, may be enumerated, at the outset. The petitioner is the original defendant-tenant in respect of the bungalow No. 22, situated in Ajanta Co-operative Housing Society, behind S. T. Welfere Centre, Race Course Road, baroda (demised premises) and the opponent is the original plaintiff, owner of the demised premises. They are hereinafter, addressed to, as the landlord and tenant for the sake of convenience. The tenant was let, the demised premises, at a monthly rent of Rs. 250/- from 5-6-1972, exclusive of municipal taxes, common charges of the society, at the rate of Rs. 10/- per month. Legal battle was initiated by the landlord filing a rent Suit No. 293/76, in the Small causes Court, at Baroda, inter alia, contending that the tenant is a defaulter and is irregular in payment of rent. ( 4 ) ACCORDING to the case of the landlord, the tenant was in arrears of rent from 5-10-1976 and the landlord sent notice under Section 12 (2), dated 5-3- 1975, demanding rent from 5-10-1973 to 4-2-1975. He demanded an amount of rs. 350/- towards arrears of rent and an amount of Rs. l,425/-, by way of municipal taxes upto 31-3-1975 and an amount of Rs. He demanded an amount of rs. 350/- towards arrears of rent and an amount of Rs. l,425/-, by way of municipal taxes upto 31-3-1975 and an amount of Rs. 340/-, by way of common charges, from the tenant, in the notice. Notice was replied on 4-4-1975. Notice was not complied with. Therefore, the suit was filed for possession on the ground of non-payment of rent. ( 5 ) THE tenant appeared and resisted the suit, by filing a written statement; Exh. 10, inter alia, contending that the standard rent should be fixed. According to his case, the standard rent cannot be more than Rs. 100/- per month. He also preferred a Miscellaneous Application no. 794 of 1975, on 4-4-1975, for fixation of the standard rent of the demised premises, under Section 11 (3) of the Bombay Rent Act. The tenant also contended that he is not liable to pay municipl taxes, and common charges of the Society. He denied the arrears of rent and the amount claimed in the notice and in the suit. The ejectment suit of the landlord and the standard rent application of the tenant were consolidation, which came to be disposed of by a common judgment, by the trial court, on 27-2-1979. The trial court found that the tenant is in arrears of rent, for more than six months from 5-10- 1973, and that the tenant is not ready and willing to pay the arrears of rent. The trial court held that Section 12 (3) (b) is applicable, but the tenant is not entitled to the protection thereof and, therefore, he is liable for eviction. The trial court fixed the standard rent, at the rate of Rs. 250/- per month. Thus, the trial court decreed the suit for possession, on the ground of non-payment of rent. The tenant appealed in the District Court, at Baroda, by filing regular Civil Appeal No. 113 of 1979, in which he lost the battle with the result that the ejectment decree recorded by the trial court on the ground of non-payment of rent under Section 12 (3) (b) came to be confirmed in the appeal. Therefore, the unsuccessful- tenant in two Courts has, now, come up before this Court, in this revision under Section 29, sub-section (2) of the Bombay Rent Act. Therefore, the unsuccessful- tenant in two Courts has, now, come up before this Court, in this revision under Section 29, sub-section (2) of the Bombay Rent Act. ( 6 ) THE jurisdiction or an ambit in a revision under Section 29 (2) is very much circumscribed. Though the powers of revisional court under Section 29 (2) are wider than the powers under Section 115 of the Civil Procedure Code, 1908, (the Code - for short) the revisional powers or the jurisdiction can only be exercised for a limited purpose with a view to satisfying itself that the impugned order or decision or decree is according to law or not. This proposition is very well established by the Apex Court in bhaichand Ratanshi v. Laxmishanker tribhovan, reported in AIR 1981, S. C. 1690. The revisional court can interfere Only when it finds that the impugned order or decree is not according to law Even when two views are possible the High court cannot substitute its views in a revision. The view in impugned order or decree is possible, then it is not permissible for the High Court to take a different view and substitute its findings in place of the view of the courts below. This proposition of law is also very well expounded and enunciated by the Apex court in Helper Girdharbhai v. Saiyed mohmad Mirasaheb Kadti and Others, air 1987, S. C. 1782. Thus it may be stated that the findings of facts recorded by the courts below cannot be interfered with unless and until they are shown to be based on misreading of evidence, tainted with perversity or illegality, or non-application of mind. The high Court in revision; cannot embark upon re-appreciation or re-appraisal of the testimonial collections of the documentary evidence, as aforesaid. The apex Court has, clearly, held in chandavarkar Sita Ratna Rao v. Ashalata S. Guram, AIR 1987, S. C. 117, that finding of facts cannot be interfered with by a court in a jurisdiction of general superintendence. In view of the aforesaid settled proposition of law the findings of facts recorded by the courts below concurrently and consistently holding that the petitioner-original defendant tenant is a defaulter and irregular, negligent tenant, cannot be interfered with. In view of the aforesaid settled proposition of law the findings of facts recorded by the courts below concurrently and consistently holding that the petitioner-original defendant tenant is a defaulter and irregular, negligent tenant, cannot be interfered with. However, it is submitted On behalf of the tenant that the protection of the provisions of Section 12 (3) (b) could not be afforded to the tenant as the issue of standard rent was not resolved, at the first instance. In other words it is the contention raised on behalf of the tenant that since only the interim rent was fixed by the Court in an application filed by the landlord under Section 11 (4), the tenant was not obliged to comply with the said order so as to seek protection of the provisions of Section 12 (3) (b) as the interim rent could not be equated with the order of the standard rent. It is, therefore, submitted that the courts below have committed illegality in refusing to give protection under Section 12 (3) (b) while considering the order of interim rent. It is, further, submitted that the court ought to have fixed the standrd rent by taking the issue of standard rent as a preliminary issue or should have given time while fixing the standard rent on merits at the end of the trial. Thus, it is urged that unless and until the standard rent is fixed by the court on merits the tenant will not be able to earn the protection of Section 12 (3) (b) as he is bound to pay or tender only the amount of standard rent and not as per the interim rent. ( 7 ) AGAIN reverting back to the factual scenario it may be noted that the following aspects are not in dispute : (1) The tenant had filed an application for standard rent under Section 11 (3) within one month after the receipt of the notice but he had not taken action to obtain an order of the court under Section 11 (3 ). (2) The landlord gave an application exh. 24, On 3-2-1978 under Section 11 (4) requesting the court for order against the tenant. (3) The trial court after hearing the parties passed an order below Exh. 24, on 7-4-1978, whereby, the amount of Rs. (2) The landlord gave an application exh. 24, On 3-2-1978 under Section 11 (4) requesting the court for order against the tenant. (3) The trial court after hearing the parties passed an order below Exh. 24, on 7-4-1978, whereby, the amount of Rs. 250/- p. m. was fixed as interim standard rent and tenant was directed to deposit arrears of rent. The tenant was directed to pay all the arrears of rent due from 5-10- 1973 on or before 20-4-1978. The trial court also directed the tenant to pay, regularly, or deposit rent at the said rate. The tenant could not deposit all the arrears of rent on or before 20-4-1978. Therefore, he applied for extension of time by giving an application, at Exh. 30. (4) The trial court extended the time by passing an order below Exh, 30 till 29-4- 1978. (5) On 24-4-1978, the rent then due, came to Rs. 13,500/ -. The rent was due from 5-10-1973 to 4-4-1978 for a period of 54 months. (6) The tenant deposited all the arrears of rent then due upto 29-4-1978 on or before the extended date. (7) However, the tenant failed to pay rent regularly as per the order of the court below, Exh. 24 during the pendency of the suit in the trial court. (8) The issues were framed, on 24-7- 1978, and on that day the rent then due came to Rs. 14,250/ -. As against that, the tenant had deposited only Rs. 14,000/ -. It is, therefore, very clear that the tenant had not deposited the full arrears of rent, then due, on the first day of hearing of the suit. (9) It is also not disputed that in view of the pursis Exhs. 17 and 24 the courts below have observed : (a) That the tenant had not deposited the rent regularly. The tenant committed default in not depositing the full arrears of rent on the first day of hearing. Thereafter he committed several defaults. (b) The tenant has deposited rent at irregular intervals and had persistently made defaults. ( 8 ) IN view of the aforesaid facts and circumstances the courts below recorded the concurrent and consistent findings of fact that the tenant failed to pay the full arrears of rent on the first day of hearing of the suit and also during the pendency of the suit. ( 8 ) IN view of the aforesaid facts and circumstances the courts below recorded the concurrent and consistent findings of fact that the tenant failed to pay the full arrears of rent on the first day of hearing of the suit and also during the pendency of the suit. In the circumstances the courts below reached to the conclusion that the tenant is not qualified to earn the protection of Section 12 (3) (b ). ( 9 ) THE contention that the direction of the court to the tenant to pay or deposit arrears of rent as per the interim standard rent fixed at Rs. 250/- p. m. and then to pay regularly is, wrongly, considered by the courts below. It is contended that the tenant had deposited the full arrears of rent at the time of passing of decree and the court had not fixed the standard rent earlier. The tenant should not be considered as a defaulter or irregular, in payment of rent. Thus, in substance the submission is that the order of the court fixing the interim standard rent and directing the tenant to pay at that rate and thereafter to pay regularly at that rate, is passed by the court under Section 11 (4) and the same cannot be considered to judge readiness and willingness of the tenant in relation to the provisions of section 12 (3) (b ). This submission, prima facie, may appear, to be subtle but not sound and sustainable. It may also appear captivating but not convincting, in the facts of the case and also in view of the underlying spirit, purpose and the philosophy of the provisions of Section 11 and Section 12 of the Bombay Rent act. ( 10 ) THE material and relevant provisions of Section 11 (3) and (4) are as under :-" (3) If any application for fixing the standard rent or for determining the permitted increase is made by a tenant who has received a notice from his landlord under sub-section (2) of Section 12, the Court Shall make an order directing the tenant to deposit in Court forthwith, and thereafter monthly or periodically, such amount of rent by permitted increases as the Court considers to be reasonably due to the landlord pending the final decision of the application, and a copy of such order shall be served upon the landlord. Out of the amount so deposited, the Court may make order for the payment of such reasonable sum to the landlord towards payment of rent or increases due to him, as it thinks fit. If the tenant fails to deposit such amount, his application shall be dismissed. (4) Where at any stage of a suit for recovery of rent, whether with or without a claim for possession of the premises, the Court is satisfied that the tenant is withholding the rent on the ground that the rent is excessive and standard rent should be fixed, the Court shall arid in any other case if it appears to the Court that it is just and proper to make such an order the Court may, make an order directing the tenant to deposit in Court forthwith such amount of rent as the court considers to be reasonably due to the landlord. The Court may further make an order directing the tenant to deposit in court, monthly or periodically, such amount as it considers proper as interim standard rent during the pendency of the suit. The Court may also direct that if the tenant fails to comply with any such order within such time as may be allowed by it, he shall not be entitled to appear in or defend the suit except with leave of the court, which leave may be granted subject to such terms and conditions as the Court may specify. "the legislature having laid down the policy in the preamble to control rent and prevent unreasonable eviction, it has further laid down the package scheme under sub-section (3) and sub-section (4) of Section 11 red with Section 12, prima facie, to afford the statutory umbrella to the tenant and at the same time also to see that the landlord receives and the tenant pays rent as and when it falls due regularly. It may, also, be stated that the legislature has further balanced with the landlords right to recover rent from his tenant and the tenants duty to pay the rent. In the event of failure on the part of the tenant to perform his liability to pay the rent, the landlord becomes legally entitled to a decree for eviction. It may, also, be stated that the legislature has further balanced with the landlords right to recover rent from his tenant and the tenants duty to pay the rent. In the event of failure on the part of the tenant to perform his liability to pay the rent, the landlord becomes legally entitled to a decree for eviction. ( 11 ) SECTION 12 (1) has given an umbrella to the tenant that so long as tenant pays standard rent and permitted increases and observes and performs the terms and conditions of the tenancy, the landlord is unable to get his tenant ejected; whereas, Section 12 (2) makes further safeguard that the landlord cannot file a suit for ejectment unless he gives a notice to the tenant in respect of arrears of rent or permitted increases. After receipt of the notice of demand the tenant has to pay the same within the period of one month or if he has bona fide dispute with regard to the standard rent or permitted increases he has an option to file an application for fixation of the standard rent or permitted increases within one month after the receipt of the notice under Section 12 (2) as provided in sub-section (3) of Section 11. Failure on the part of the tenant, obviously, would qualify the landlord to the eviction decree under the provisions of Section 12 (3) (a) or Section 12 (3) (b), as the case may be. ( 12 ) EVEN if the tenant makes an application under Section 11 (3) but he does not deposit the rent as per the directions of the court, the application is liable to be rejected. If the landlord has instituted the suit for eviction on the ground of non-payment of rent, the tenant is obliged to follow, the order passed by court under Section 11 (4 ). In the event of failure to comply with the order of court under Section 11 (4) the defence of the tenant would be struck off. If the landlord has instituted the suit for eviction on the ground of non-payment of rent, the tenant is obliged to follow, the order passed by court under Section 11 (4 ). In the event of failure to comply with the order of court under Section 11 (4) the defence of the tenant would be struck off. Thus, it could very well be seen from the legislative scheme that the landlord is not entitled to the eviction so long as the tenant is ready and willing to pay an amount of standard rent and permitted increases and when he performs the terms and conditions of the tenancy there is a statutory protection and there is a disability on the part of the landlord to get the eviction. ( 13 ) THE main anxiety of the court should be in such a case, to see as to whether the tenant was ready and willing to pay the rent or not. The readiness and willingmess, obviously, could be judged from the various circumstances. The tenant remained in arrears of rent for more than six months at the time of notice under Section 12 (2 ). He was in arrears of rent of 54 months and rent was also in arrears on first day of hearing of the suit. The tenant had applied for fixation of the standard rent under section 11 (3) by filing a Misc. Application within one month after the receipt of the notice. No interim order was obtained by the tenant. The landlord therefore gave an application under section 11 (4 ). The court passed the aforesaid order directing the tenant to pay arrears of rent on or before 20-4-1978. The tenant could not pay the rent before the said date. Therefore, he applied for extension and on the extended date, the rent of 54 months at the rate of Rs. 250/- fixed by the court by way of interim rent came to be deposited. The tenant was also directed by the court to pay interim standard rent of Rs. 250/- p. m. regularly till the disposal of the suit. Admittedly, the tenant was in default in making payment of full arrears of rent then due on the first day of hearing like that on the day on which issues were settled by the trial court, on 24-7-1978. 250/- p. m. regularly till the disposal of the suit. Admittedly, the tenant was in default in making payment of full arrears of rent then due on the first day of hearing like that on the day on which issues were settled by the trial court, on 24-7-1978. ( 14 ) UNDER Section 11 (3) a provision is incorporated, whereby, if the tenant receives from his landlord a notice under section 12 (2) he could apply to the court for fixation of the standard rent or permitted increases and requests for an order to enable him to deposit into the court or to pay to the landlord such rent or permitted increases as the court may specify by an order. Within one month after the notice under Section 12 (2) from the landlord the tenant is obliged to apply to the court for fixation of the standard rent and also for an immediate orders specifying the amount of rent and permitted increases to be paid by him pending final decision of his application. The court has also jurisdiction to fix the interim rent under Section 11 (3) whether the application for standard rent is preferred before or after the receipt of the notice under Section 12 (2 ). The tenant did not move the court for interim order. Thereafter the landlord moved the court, under Section 11 (4) and the court fixed the interim standard rent of Rs. 250/- per month and directed the tenant to pay the arrears of rent then due within the stipulated time and thereafter to pay regularly. This direction of the court is not complied with and, therefore, it could safely be concluded that the tenant was not ready and willing to pay the rent. It would be expedient to examine the provisions of the Section 12 (3) (b) which read as under :" (B) In any other case, no decree for eviction shall be passed in any such suit, if, on the first day of hearing of the suit or on or before such other date as the court may fix, the tenant pays or tenders in Court the standard rent and permitted increases then due and thereafter, (i) continue to pay or tender in Court such rent and permitted increases till the suit is finally decided; and (ii) also pay costs of the suit as directed by the Court. "the legislature has also provided explanation under Section 12 which also plays a very important role in determining the readiness and willingness on the part of the tenant to pay rent. It reads as under :"explanation - In any case, where there is a dispute as to the amount of standard rent or permitted increases recoverable under this Act the tenant shall be deemed to be ready and willing to pay such amount if, before the expiry of the period of one month after notice referred to in sub-section (2), he makes an application to the Court under sub-section (3) of Section 11 and thereafter pays or tenders the amount of rent or permitted increases specified in the order made by the Court. "it could very well be seen from the aforesaid provision that if the tenant disputes the standard rent or permitted increases claimed by his landlord and he makes an application under Section 11 within one month after the receipt of the notice of demand under Section 12 (2) and thereafter pays rent or permitted increases as per the order of the court the tenant shall be deemed to be ready and willing to pay. If the conditions laid down in the explanation are fulfilled and observed by the tenant, then there is a conclusive proof of tenants readiness and willingness to pay the rent. It is clear from the aforesaid provisions that interim rent could be fixed under section 11 (3) as well as under Section 11 (4 ). An order for payment of interim rent and to continue to pay interim rent is required to be considered and observed for the purpose of securing protective umbrella of Section 12 (3) (b ). If the tenant fails to pay the arrears of rent as per the interim order on the first day of hearing of the suit, he will not be entitled to protection of Section 12 (3) (b ). Failure to pay rent regularly as per interim rent during the pedency of the proceedings, will also disqualify the tenant from claiming protection of Section 12 (3) (b ). Thus, compliance of both the conditions must co-exist. Failure to comply with one of the conditions will also render the tenant liable and the landlord entitled to get ejectment decree. Failure to pay rent regularly as per interim rent during the pedency of the proceedings, will also disqualify the tenant from claiming protection of Section 12 (3) (b ). Thus, compliance of both the conditions must co-exist. Failure to comply with one of the conditions will also render the tenant liable and the landlord entitled to get ejectment decree. The failure to perform one of the conditions of Section 12 (3) (b) will, disqualify, the tenant to seek the protection. ( 15 ) THE readiness and willingness on the part of the tenant to pay or tender the arrears of rent is required to be judged while considering the question of protection of Section 12 (3) (b ). The object of Section 11, sub-section (4) of the bombay Rent Act, appears to strike a balance in case of dispute of nonpayment of rent. It appears that the parliament is very much concerned about the charging or receiving or recovery of rent in excess of standard rent and permitted increases. It is, therefore, provided the remedy under sub-section (1) of Section 11 for the tenant to prefer an application in court to challenge the rent, if it is excessive. The legislature, thereafter contemplated two contingencies. Like that (1) a suit for recovery of rent with or without possession claim for which provision is made in Section 11, sub-section (4), (2) suits for eviction on the ground of nonpayment of rent for which the provision has been made in Section 11 (3 ). ( 16 ) IN respect of the aforesaid first recourse, the legislature is concerned with the reasons why the tenant failed to pay or why did he withhold payment of rent. It is, therefore, incumbent upon the Court to investigate into the reasons for nonpayment of rent. While making any such investigation or inquiry, the legislature was anxious to see or was inquisitive to see that while the suit is pending, the landlord is not deprived of his dues, and at the same time, a tenant is obliged to perform his duty. Precisely, for this reason, that the regulated remedy is enshrined in Section 11 (4 ). It also appears that, probably, the legislature also wanted to expedite the proceedings by providing the procedure in Section 11 (4 ). Precisely, for this reason, that the regulated remedy is enshrined in Section 11 (4 ). It also appears that, probably, the legislature also wanted to expedite the proceedings by providing the procedure in Section 11 (4 ). An order of interim rent passed either under Section 11 (3) or under Section 11 (4) or passing an order of interim rent by a Court suo motu creates an obligation on the part of the tenant to pay the rent or to tender the rent as per the order of the court on the first day of hearing and also during the pendency of the proceedings. The Miscellaneous Application for fixation of standard rent and the suit for possession on the ground of non-payment of rent, came to be consolidated. Therefore, an order passed for interim rent either in an application for standard rent, under Section 11 (3) or in a suit for possession under Section 11 (4) is required to be complied with by the tenant. It is otherwise also an obligation, on the part of the tenant to comply with such an order for statutory protection. ( 17 ) UNTIL the application for standard rent or an issue of standard rent in the suit is decided on merits, the interim standard rent fixed by the court has to be regarded as the standard rent. The words "standard rent and permitted increases" appearing in sub-section (2) of Section 12, would go to show that the demands of arrear of rent or permitted increase are required to be made at the stage of notice, in absence of dispute even as per the contractual rate of rent or increases. Should a tenant be allowed to contend that before notice under sub-section (2) of Section 12 is served, the landlord should get the standard rent first resolved? Otherwise also a landlord cannot foresee that a tenant would dispute the standard rent and what standard rent would be ultimately, fixed by the Court. The expression "standard rent and permitted increases" occurring in Section 12 (2) do not affect the validity of the notice, if the demand is made as per the contractual rate of rent, in the absence of any standard rent decision of the Court. The expression "standard rent and permitted increases" occurring in Section 12 (2) do not affect the validity of the notice, if the demand is made as per the contractual rate of rent, in the absence of any standard rent decision of the Court. ( 18 ) SO, it becomes clear that the tenant has to pay or tender the rent as demanded by notice under Section 12 (2) in the absence of standard rent. The interim rent fixed by the Court is, therefore, required to be treated as standard rent for the purpose of considering the readiness and willingness of the tenant to pay the rent. This view is also reinforced by the introduction of Explanation II, in bombay Rent Act, applicable to maharashtra. In Maharashtra, the original explanation was numbered as I and explanation II came to be added by maharashtra Act 14 of 1963. By that explanation, "the interim standard rent" and "interim permitted increases" fixed by the Court under Sections 11 (3) and 11 (4) have been given the same meaning as "standard rent" and "permitted increases" for the purposes of Section 12 (2 ). The object of the legislature in introducing this Explanation II, was to see that the "interim standard rent" or "interim permitted increases", fixed by the Court either under Section 11 (3) or section 11 (4) shall be treated as good as standard rent or permitted increases for the purpose of considering the readiness and willigness, on the part of the tenant to pay the rent. The failure on the part of the tenant to deposit the rent as per the interim "standard rent" or "interim permitted increases" either in standard rent application dr the suit would deprive the tenant of the benefit of the statutory umbrella of Section 12 (3) (a) or Section 12 (3) (b), as the case may be. Of course, it appears that in maharashtra Amendment the legislative drafting is not very happy as instead of sub-section (3) or sub-section (2) and (3) only sub-section (2) has been mentioned. ( 19 ) IT could, therefor, very well be construed that, an explanation stands mentioning only sub-section (2 ). Of course, it appears that in maharashtra Amendment the legislative drafting is not very happy as instead of sub-section (3) or sub-section (2) and (3) only sub-section (2) has been mentioned. ( 19 ) IT could, therefor, very well be construed that, an explanation stands mentioning only sub-section (2 ). It means that if any "interim rent" or "interim permitted increases" is fixed by the Court either in Section 11 (3) or Section 11 (4) and the landlord gave a notice under section 12 (2) to the tenant, demanding arrears of rent that if the tenant pays or tenders the amount of arrears of rent within one month in accordance with the order of the "interim rent" or "interim permitted increases", he would be eligible to claim the protection, However it would be better if Such a clarificatory explanation incorporating sub-section (2) and sub-sections (2) and (3), is introduced by the legislature of the State of Gujarat, No doubt, It would be for the appropriate forum to consider this aspect. However, there is no any manner of doubt, in holding even in the balance of any such clarificatory explanation, the conclusion is irresistible that the order of interim rent or order of interim permitted increases either in standard rent application or the suit would mean that the standard rent application or the suit would mean that the standard or permitted increases or it will have to be treated as standard rent or permitted increase, for the limited purpose of considering the readiness and willingness of the tenant to pay the rent. Failure on the part of the tenant to comply with the order of the interim rent or permitted increases would entail eviction as the tenant would lose the protection of Section 12 (3) (b ). ( 20 ) THE amendment, by Amending Act of Gujarat 7 of 1985, the provision of section 12 (3) (b) was amended, whereby, the word regularly has been deleted and the payment of rent to be made after the first date of hearing of the suit as well as costs, both are made "as directed by the court" is not applicable in the present case. Thus, there is no dispute that the said amendment is not governing the present case with the result that the court has no discretion as the unamended provisions of Section 12 (3) (b) applicable to the present case are mandatory. Both the courts have, concurrently, rightly, found that the petitioner tenant is the defaulter and has hot complied with both the conditions. The view which this Court is taking is also reinforced by the decision of this Court in Jenabhai mohmed v. Gulamabbas Ismailji and Ors. , reported in 12 GLR 819. In that case, the interim rent was fixed by the Court. The tenant had not deposited the amount of rent as per the interim order. On the first date of hearing, the tenant had not deposited the rent as per the order of the court. With regard to the interim rent, the amount deposited was falling short if the amount which was payable even on the basis of the interim rent fixed. There was no dispute that the tenant did not make any application requesting the court to fix the standard rent earlier. After considering the various decisions, which are also relied on by the parties, in the present revision, this Court took the view that, non-compliance of the order of interim rent would entail eviction. If the tenant does not pay the amount of rent as per the interim rent, the tenant would not be entitled to protection and there is no obligation for the court to fix another date for paying arrears of rent. If the tenant fails to pay or tender the interim rent fixed by the Court, than in that case, the tenant is not entitled to the protection as it eould, safely, be stated that he is a defaulter and not ready and willing to pay the rent. The contention that the tenant is not obliged to comply with the interim order as the standard rent not fixed by the court and, therefore, an opportunity for payment of arrears of rent after fixing the standard rent on merits should be given, is unsustainable. The contention that the tenant is not obliged to comply with the interim order as the standard rent not fixed by the court and, therefore, an opportunity for payment of arrears of rent after fixing the standard rent on merits should be given, is unsustainable. However, it may be mentioned that the decisions which are relied on behalf of the petitioner-tenant would go to show that if no order for interim rent is passed, and if the issue of standard rent is decided at the end of the trial, the tenant is entitled to time after fixing the standard rent for payment of arrears of rent and permitted increases. There is then no dispute about this aspect that if the standard rent is fixed in the standard rent application, or the issue of standard rent is decided in the suit along with other issues, in absence of interim order of standard rent, it is obligatory for the Court to give time or fix the date after fixing the standard rent so that the tenant could avail of the protection of Section 12 (3) (b ). . ( 21 ) IN Smt. Sulochana Damodar v. Smt. Ratnaprabha V. Tople, 1994 (1) Rent control Journal, 263, the Apex Court has held that the tenant is obliged to satisfy both the conditions. The tenant is bound to pay not only the arrears of rent and permitted increases on the first day of hearing, but also, is bound to continue to pay or tender in Court regularly, such rent and permitted increases, during the pendency of the proceedings. In case of Smt. Sulochana Damodar (supra), the tenant after receiving the suit notice, had made no effort to deposit the rent as required by Section 12 (3) (b ). The landlady had then applied for expeditious hearing of the suit, wherein the Court made an order, on April 4, 1974 directing the tenant to deposit the arrears of amount representing permitted increases within six weeks of the said order. The tenant was further directed by the Court to deposit monthly amount regularly. The tenant failed to deposit the arrears as well as the amount due for the months following the order. Subsequently, after more than a year, the tenant made an application for permission to deposit the amount in accordance with the order of the Court. The tenant was permitted. The tenant failed to deposit the arrears as well as the amount due for the months following the order. Subsequently, after more than a year, the tenant made an application for permission to deposit the amount in accordance with the order of the Court. The tenant was permitted. He deposited the amount due till then. It was contended before the Court that the tenant is entitled to protection as the court had condoned the delay in depositing the amount of arrears in accordance with the earlier order or that it has condoned consecutive defaults committed by every month in depositing the monthly amount. The Hon. Supreme court has held in that case that, merely because it is stated that the Court had permitted the tenant to deposit the said amount, it cannot be construed that the court had condoned the delay in depositing the same.-Thus, the view of this Court of non-compliance of the order of the interim rent or direction for payment of rent by the tenant would result into forfeiture of protection under section 12 (3) (b), is very much reinforced by the said decision of the Apex Court. ( 22 ) AGAIN, the view of this Court is also supported by the decision of the honourable Supreme Court, in Chase bright Steel Ltd. v. Shantaram Shankar sawant and Another, 1994 (1) G. L. H. 429. In that case, it has been clearly held that, there is an obligation on the part of the tenant to deposit even the permitted increases, not only during the pendency of the standard rent application, but also, during the pedency of the suit for eviction. In the said case, on receipt of the notice under Section 12 (2), the tenant had filed an application under Section 11 (3) of the Bombay Rent Act, for fixation of the standard rent, on 30-8- 1987 and interim order fixing the rent at rs. 358/- p. m. which was the contractual rate of rent was passed. In Chase Bright steel Ltd. s case (supra), the Honourable supreme Court has, clearly, laid down that, under Section 12 (3) (b) of the bombay Rent Act, there is an obligation to deposit the permitted increases not only during the pedency of the standard rent application, which in that case, came to be dismissed for default but even during the pendency of the suit for eviction. It was further observed, as rightly held by the High Court, if this were not to be so, the tenant could claim protection on his showing that he had, within the period of one month from the date of service of notice of demand under section 12 (2) filed an application for standard rent and that he had obeyed that order; in that case, the interim standard rent. ( 23 ) THE observations made in para - 20 of the said decision are very important and the ratio laid down is clearly attracted in the light of the facts of the present case. Having regard to the facts and circumstances and the relevant proposition of law, this Court has no hesitation in finding that the rent is not entitled to protection of Section 12 (3) (b) with the result that he is liable to eviction and the landlord is entitled to a decree for possession of the demised premises, on the ground of non-payment of rent. The courts below have, consistently, and concurrently; rightly, found that the tenant is a defaulter and is not entitled to the protection of Section 12 (3) (b ). This court is satisfied that the view taken by the Courts below is justified. There are no merits in this revision. Therefore, this revision is required to be-dismissed. ( 24 ) AT this stage, learned Counsel appearing for the petitioner, original tenant prays for time. Having regard to the facts and circumstances, it would be just and equitable to grant time to vacate the demised premises till 31-1-1996, on usual conditions and filing of an undertaking by the tenant. The decree for possession of the demised premises shall not be executed till 31-1-1996, provided the tenant files an undertaking on or before 15th September 1995, on usual terms and conditions including the condition that he shall not sublet, transfer or assign his interest in any manner, in the demised premises and he shall hand over the possession to the landlord only and that in the meantime, he shall pay the rent regularly. In the result, this revision is dismissed, with no order as to costs, in the circumstances. Rule is discharged. Rule discharged. .