JUDGMENT - A.M. KHANWILKAR, J.:---This writ petition takes exception to the order passed by the Third District Judge, Sangli dated January 13, 1992 in Regular Civil Appeal No. 235 of 1986. Petitioners filed suit for recovery of possession of the demised premises situated in building known as Gadave Building at Miraj on the ground of bona fide requirement and default against the original defendant Dattatraya Shamrao Khore who was tenant on monthly rent of Rs. 30/-. The plaint, as filed before the trial Court, merely states that the suit property is required for bona fide and reasonable requirement of plaintiff No. 1. No other details have been given in the plaint regarding nature of requirement of the plaintiff No. 1. The plaint further asserts that the suit property was earlier Joint family property and has gone in partition to the exclusive share of plaintiff No. 1 and, he has, therefore, become owner of the said property. In so far as the ground of default is concerned, relevant facts are that: both the petitioners gave notice to the original defendant, Predecessor of the respondents herein, on August 31, 1978, calling upon him to pay the arrears of the rent since July, 1974 till the date of notice, which is for a period of more than six months in terms of section 12 of the Bombay Rent Act. The said notice was received by the defendant and immediately thereafter within one month therefrom, the defendant filed Miscellaneous Application for fixation of standard rent on 27th September, 1978. The defendant also took out application under section 11(3) of the Bombay Rent Act on September 30, 1978 for permission to deposit the amount as demanded in the suit notice in Court. This permission was granted whereafter on the same day the defendant deposited the entire amount as demanded under the suit notice. In that sense, defendant extricated from the rigours of section 12(3)(a) of the Bombay Rent Act. On the other hand the stand taken on behalf of the petitioners is that the said standard rent application was filed only against the petitioner No. 2 who had no concern with the suit property after the partition in 1977 and that the property absolutely vested in petitioner No. 1. On the other hand the stand taken on behalf of the petitioners is that the said standard rent application was filed only against the petitioner No. 2 who had no concern with the suit property after the partition in 1977 and that the property absolutely vested in petitioner No. 1. It is further contended on behalf of the petitioners that the defendant intentionally filed standard rent application only against petitioner No. 2 and therefore, filing of the said application was of no avail and did not absolve the tenant from the rigours of the section 12(3)(a) of the Act. 2. Both parties contested the matter. The respondent tenant appears before the trial Court and contested the suit by filing written statement. In the written statement specific stand was taken on behalf of the tenant that the petitioner No. 2 was not the landlord and no intimation or attornment has been done in that behalf. In so far as the ground of bona fide and reasonable requirement is concerned, the defendant contended that the claim pressed by the petitioners was false and without any substance much less bereft of any particulars so as to make out cause of action. Inspite of such pleadings it is not in dispute that the trial Court framed issue also on bona fide requirement and proceeded with the trial. Both the parties adduced evidence in support of their rival contentions. Plaintiffs examined 5 witnesses including themselves, in support of their stand regarding bona fide and reasonable requirement of plaintiff No. 1 as well as with regard to the ground of default. The defendant also stepped into the witness box and also examined other witnesses in support of his claim. The fact remains that both the parties adduced elaborate evidence and the defendant permitted evidence on the issue of bona fide requirement to come on record. On the basis of the evidence, the trial Court proceeded to decree the suit on both the grounds. The trial Court held that the plaintiffs established the ground of bona fide and reasonable requirement of plaintiff No. 1. Even on the issue of greater hardship, it held that greater hardship would be caused to the plaintiffs by refusing to grant decree. Even the ground of default has been answered by the trial Court against the defendant by holding that the case was covered by section 12(3(a) of the Act. 3. Even on the issue of greater hardship, it held that greater hardship would be caused to the plaintiffs by refusing to grant decree. Even the ground of default has been answered by the trial Court against the defendant by holding that the case was covered by section 12(3(a) of the Act. 3. Against the said decision the respondents herein took the matter in appeal before the District Court in Regular Civil Appeal No. 193. The Appellate Court has reversed the decree on both the grounds. According to the Appellate Court, the pleadings on the issue of bona fide requirement were absolutely vague and that the trial Court has committed error in permitting the evidence to be let in by the plaintiffs on factual matrix which were not pleaded in the plaint. The Appellate Court accordingly was of the opinion that the entire evidence adduced, which was not supported by pleadings was irrelevant and could not be looked into. Nevertheless, the Appellate Court proceeded to analyse the evidence and held that it is impossible to accept the version of the plaintiffs that the plaintiffs were residing in a stable owned by P.W. No. 3 as contended. According to the Appellate Court, the plaintiffs had created the record to justify the ground of bona fide requirement. On the other hand, it found that the plaintiffs were well-placed in the life and were respectable members of the society in that plaintiff No. 1 was the Councillor of the Village Municipality at one point of time. Accordingly, the Appellate Court reversed the findings with regard to the ground of bona fide and reasonable requirement holding that the plaintiffs failed to establish bona fide and reasonable requirement of plaintiff No. 1. With regard to the ground of default, the Appellate Court took a view that the provisions of section 12(3)(a) had no application to the fact situation of the present case. The Appellate Court further proceeded to hold that since section 12(3)(a) was not available, suit for recovery of possession on the ground of default itself was not maintainable and the Court could not have proceeded to consider the ground of default within the meaning of section 12 of the Act. Accordingly, the Appellate Court allowed the appeal preferred by the respondent and rejected the prayer for recovery of the possession. Accordingly, the Appellate Court allowed the appeal preferred by the respondent and rejected the prayer for recovery of the possession. The Appellate Court however held that the plaintiffs were entitled to recover sum of Rs. 1500/- towards arrears of rent deposited by the defendant in Court and also entitled to receive future rents if any. It is this decision which is subject matter of writ petition under Article 227 of the Constitution of India before this Court. 4. Counsel for the petitioner, while assailing the findings of the Appellate Court with regard to the ground of bona fides requirement states that, the Appellate Court has clearly mis-directed itself in reversing findings of the trial Court. In that regard, according to the petitioners, the fact that the pleadings were vague was of no consequence. That inspite of such pleadings, issue was struck by the trial Court, and parties adduced evidence in respect of their rival claims. In the circumstances, it is contended that since the defendant allowed the plaintiffs to lead evidence on all the aspects and more particularly to enable them to prove the ground of bona fide requirement, it was not open for the respondent now to complain about vagueness in the pleadings. In support of this contention reliance is placed on (Baba Kashinath Bhinge v. Samast Lingayat Gavali)1 1994 Supp. (3) S.C.C. 698, to contend that if parties understood each other's case, the plaintiffs could not be non-suited on the technical ground of omission to plead specific requirement. In so far as the findings recorded by the Appellate Court, the learned Counsel for the petitioner contended that, the approach was manifestly wrong. The only discussion which has been recorded by the Appellate Court can be discerned from para 13 of the judgment under challenge. The Appellate Court has observed that plaintiffs were very well placed in life and that the plaintiff No. 1 was Municipal Councillor of Miraj Municipality. The Appellate Court has further observed that evidence relied upon in the shape of photograph by the plaintiffs shows that plaintiff was staying in stable was only to make out a ground of bona fide requirement. The Appellate Court has further observed that evidence relied upon in the shape of photograph by the plaintiffs shows that plaintiff was staying in stable was only to make out a ground of bona fide requirement. The Appellate Court, it is contended that, has thus proceeded to draw inference on the basis of surmises and conjuncture that the plaintiff No. 1 cannot reside in the stable owned by P.W. No. 3 and has disregarded the relevant evidence to the contrary. In so far as findings of the Appellate Court on the ground of default is concerned, it is contended on behalf of the petitioners that, the defendant had intentionally filed standard rent application only against petitioner No. 2 though he had full knowledge that the petitioner No. 1 was his landlord. It is therefore contended that filing of application against the person who is not landlord was of no avail and would not extend protection from the rigours of section 12(3)(a) of the Act. It is also contended that in any case the respondent has failed to regularly pay or deposit the amount towards monthly rent during the pendency of the proceedings as required under the provisions of section 12(3)(b) of the Act. 5. On the other hand the learned Counsel for the respondent contended that the findings recorded by the Appellate Court on both the issues do not warrant any interference. He submits that it would not be appropriate for this Court to reappreciate the evidence and take another view in the matter though that view may be a possible view. He however contends that in any case both the courts below clearly overlooked the question that arises for consideration as to whether petitioner No. 1 was the landlord in respect of the demised premises. According to him, on the evidence of the petitioners, it would be seen that partition was effected between the joint family of the petitioners as far back as in 1955 pursuant to which the demised property went to the exclusive share of petitioner No. 2; and he had become owner thereof since then. Once partition was effected in respect of the subject property, that property could not be made subject matter of partition once again at a later point of time, for the property vests immediately upon partition is given effect to. Once partition was effected in respect of the subject property, that property could not be made subject matter of partition once again at a later point of time, for the property vests immediately upon partition is given effect to. The respondents contend that the respondents were therefore tenants of petitioner No. 2 and they had no lis with the petitioner No. 1. In this background, it is contended that even assuming that there has been a partition in 1977 which can be said to be a legal partition, then it was obligatory to establish that by virtue of this partition right is created in favour of the petitioner No. 1 with regard to the premises. Moreover, there was no attornment. Consequently, relationship of landlord and tenant between petitioner No. 1 and respondents did not arise. It is contended that this question is specifically raised before the Appellate Court, but the Court has not addressed itself to this aspect of the matter-which in fact, goes to the root of the matter. On the other hand, Appellate Court has merely referred to this contention and concluded that the partition of 1977 being registered document, was valid and legal. It is contended that even assuming that the Appellate Court has failed to exercise jurisdiction or for that matter committed manifest error in its approach in deciding the appeal, in such a case, it would be appropriate that the matter is remitted to the Appellate Court to examine all the relevant contentions with regard to the rights of the petitioner No. 1 in respect of the demised premises and on the issue of whether any relationship of landlord and tenant has been created or existed between the parties. In so far as ground of default is concerned, it is contended that there is no infirmity in the view taken by the Appellate Court. According to the respondents since there was no attornment and that there was no intimation to the tenant that the petitioner No. 1 has become the owner, the respondents were justified in filing application for fixation of standard rent only against the petitioner No. 2 who was admittedly the absolute owner of the suit premises after the partition in the year 1955. In the circumstances, it is contended that the application filed by the defendant for fixation of standard rent only against petitioner No. 2 was bona fide. In the circumstances, it is contended that the application filed by the defendant for fixation of standard rent only against petitioner No. 2 was bona fide. It is submitted that as a necessary corollary it will have to be held that the respondents had extricated themselves from the rigours of section 12(3)(a) of the Act. In so far as the contention that the Appellate Court ought to have maintained the decree on the ground of default within the meaning of section 12(3)(b) of the Act, it is contended that from the chart regarding deposits made by the respondents before the Rent Court from time to time, it would be seen that the deposits were more or less at regular intervals. According to the respondents, the legal position is well settled-in as much as in (Mohan Laxman Hede v. Noormohamed Adam Shaikh)2, case as reported in 1988(3) Bom.C.R. (S.C.)260, the Apex Court has held that the regular deposit does not mean mathematical exactitude. 6. Having considered the rival submissions, I would first proceed to deal with the ground of bona fide requirement. No doubt the respondents have specifically raised a plea in the written statement that there was no relationship of landlord and tenant between the petitioner No. 1 and respondent tenant, but that aspect has not been fully considered by the courts below. Before proceeding with this aspect of the matter I would like to first deal with the approach of the Appellate Court. The Appellate Court for reversing the findings on the issue of bona fide requirements, as is evident from the discussion in para 8 to 12 of its judgment mainly takes into account that the pleadings are vague, and therefore, the Court ought not to have permitted the parties to adduce any evidence on this issue and if such evidence has already been led, same would be irrelevant. In my view this approach is wholly inappropriate and contrary to the decisions of the Apex Court reported in 1994 Supp. (3) S.C.C. 698, as well as (Ram Sarup Gupta v. Bishun Narain)3, A.I.R. 1987 S.C. 1242. In my view this approach is wholly inappropriate and contrary to the decisions of the Apex Court reported in 1994 Supp. (3) S.C.C. 698, as well as (Ram Sarup Gupta v. Bishun Narain)3, A.I.R. 1987 S.C. 1242. As observed earlier, though the respondents took a specific stand in the written statement that the averments in the plaint regarding the ground of bona fide requirement were vague, but, nevertheless, the trial Court proceeded to frame issue with regard to the said ground and further the parties adduced evidence in support of their respective claims. Admittedly, as is evident from the record, the respondent did not oppose the adduction of such evidence by the plaintiffs with regard to the matters relevant for this issue which were not specifically pleaded, whereas elaborate evidence was allowed to be let in on behalf of the plaintiffs. This clearly means that the parties properly understood each other's case. In this view of the matter, as observed by the Supreme Court, it would be improper to non-suit the plaintiffs after a full fledged trial on such issue on the ground of vagueness in the pleadings. In the circumstances, this approach of the Appellate Court, in my view, cannot be sustained. Moreover, although the Appellate Court has dealt with the merit of this issue, the same has been discussed only in one para 13 of the judgment. The Appellate Court has held that the plaintiffs are respectable persons in the society and therefore it was not possible to accept the version of the plaintiffs that at present plaintiffs were residing in a stable owned by P.W. No. 3. In my view, this approach is wholly improper. In as much as, unless positive evidence was adduced by the respondents to show the factual position that petitioner is not staying in the stable as contended but at some other place, the Appellate Court could not have recorded that finding. However, in absence of such evidence and in any case, the Appellate Court having failed to consider the entire evidence, if at all the same is on record, the said finding in my view, cannot be sustained either in fact or in law. Thus the basis on which the Appellate Court has proceeded to examine the matter is inappropriate and opposed to established cannons of law. 7. Thus the basis on which the Appellate Court has proceeded to examine the matter is inappropriate and opposed to established cannons of law. 7. The next question that arises for consideration is: can we proceed to affirm the view taken by the trial Court. However, as mentioned earlier, the trial Court has not addressed itself to the controversy between the parties regarding the relationship of landlord and tenant between petitioner No. 1 and original tenant respondent. In absence of recording a clear finding on the said issue it was wholly inappropriate for the Court to proceed to decide the controversy on merits because that question goes to the root of the matter. If it were to be held that the petitioner No. 1 has not become the owner of the demised premises, and in any case the landlord of the respondent tenant then, perhaps, the suit itself at his instance would not be maintainable. Undisputedly, the suit as presented is on specific assertion that partition has been effected between the family members under which the demised premises have gone to the exclusive share of the plaintiff No. 1 and that the plaintiff No. 1 requires the demised premises for his bona fide and reasonable requirement. No other stand is taken in the plaint or during the evidence. Thus, the case of the petitioners would fall or stand only with reference to this plea. If this question was to be adjudicated and the finding was that the plaintiff No. 1 has not become the owner or the landlord of the respondent tenant with regard to the demised premises, then as a necessary corollary, the suit would fail. To my mind, instead of examining all these aspects of the matter for the first time before this Court in writ jurisdiction, the appropriate course is to remit the matter for reconsideration leaving all the questions open. In the circumstances, I am inclined to set aside the findings recorded by the Appellate Court on the issue of bona fide requirement and remand the matter to the Appellate Court for re-examination of the case afresh in the context of the observations made in this judgment. In the circumstances, I am inclined to set aside the findings recorded by the Appellate Court on the issue of bona fide requirement and remand the matter to the Appellate Court for re-examination of the case afresh in the context of the observations made in this judgment. The Appellate Court shall first investigate the status of the plaintiff No. 1 in respect of the demised premises, including the question of right accured to him under the alleged partition of 1977 as claimed-inspite of the earlier partition of 1955 on account of which the property is stated to have vested in plaintiff No. 2 exclusively. The Appellate Court shall then record positive opinion as to the existence of the relationship of landlord and tenant between the plaintiff No. 1 and the respondents or otherwise. Only thereafter, the Appellate Court may examine the plea of bona fide and reasonable requirements. In the event, even that aspect is decided in favour of plaintiff No. 1 then, the Court would proceed to examine the question of greater hardship including the possibility of partial eviction. The Appellate Court may decide all these issues and record clear findings on merits in accordance with law. It would be open to the parties to amend their pleadings and to adduce further evidence, in case the parties are of the view that the evidence which is already adduced is not sufficient to decide the above issues regarding ownership and/or alleged partition in the year 1977 and/or the basis on which the petitioner No. 1 claims to have become the absolute owner. However, for that the parties may make necessary application before the Appellate Court for adduction of additional evidence, if any. Appellate Court may examine that application independently on its own merit in accordance with law. 8. Now referring to the ground of default, from the facts narrated above, it would be seen that on receipt of the suit notice the defendant had immediately filed application for fixation of standard rent within one month therefrom. Moreover, besides filing of such application, the respondent also took out an application under section 11(3) of the Act seeking permission of the Court for depositing amount demanded under the suit notice; and pursuant to the order of the Court that amount came to be deposited on 30th September, 1978, which is within one month from the receipt of the suit notice. In this view of the matter, the case is clearly extricated from the rigorous of section 12(3)(a) of the Act. To get over this position the petitioners contend that the standard rent application was not bona fide. This submission is devoid of merits and obviously an argument of desperation. Moreover, it appears from the record that there is no formal intimation of attornment to the respondent tenant after the supposed change of ownership pursuant to the arrangement after partition in the year 1977. In absence of attornment, petitioner No. 2 who was the sole landlord since partition of 1955, continued to be the defacto landlord of the respondent tenant. While this judgment was being dictated, at this stage, the learned Counsel for the petitioners sought to refer to one decision reported in (M/s. Hajee K. Assainar Co. v. Chacko Joseph)4, A.I.R. 1984 Kerala, 113, to contend that attornment of tenancy is not necessary for creation of relationship between tenant and the transferee landlord. I find no force in this argument. Since this decision is cited while this judgment was being dictated, I will not venture to comment thereon. To my mind, the fact situation of this case is that the petitioner No. 2 is admittedly the owner of the suit property and at no point of time the respondent was informed about the change of ownership. On the other hand the respondent in his written statement has taken a clear stand that there is no relationship of landlord and tenant with petitioner No. 1. Unless the said issue was to be answered against the respondent, it would not be correct to even suggest that the application for fixation of standard rent filed by the respondent only against petitioner No. 2 is mala fide as contended. In this view of the matter, it will have to be held that such a tenant would be protected by the legal presumption under the provisions of the Bombay Rent Act and more particularly the Explanation to section 12 of the Act. The plaintiffs were obliged to adduce positive evidence to show that the tenant has intentionally filed the subject standard rent application only against petitioner No. 2 to get some advantage over the plaintiffs, only then the Court would hold that the application so filed was mala fide so as to disrobe the tenant of the statutory protection. The plaintiffs were obliged to adduce positive evidence to show that the tenant has intentionally filed the subject standard rent application only against petitioner No. 2 to get some advantage over the plaintiffs, only then the Court would hold that the application so filed was mala fide so as to disrobe the tenant of the statutory protection. That is not the case on hand. Having regard to the fact that the respondent-tenant had filed application under section 11(3) and also deposited the requisite amount as directed by the Court within one month from the receipt of the suit notice and later on from time to time, the case would be clearly extricated from the provisions of section 12(3)(a) as well as 12(3)(b) of the Act. In the circumstances, it is not possible to hold that the respondent is a defaulter within the meaning of section 12(3) of the Act. I am therefore, not inclined to interfere with the finding of the Appellate Court in this behalf. 9. Now coming to the next contention that the case would nevertheless be covered by section 12(3)(b), even this contention is totally ill advised. From the chart produced before this Court it is seen that the respondent has been depositing amount towards rent from time to time in the trial Court. No doubt small gaps between two deposits have occured, but such gaps would not permit the Court to conclude that the tenant was not regular in depositing rent from time to time. The law, as stated in Hede's case by the Apex Court is that the term “regularly deposit” does not mean that the deposits should be with mathematical exactitude. Accordingly, even the ground of default within the meaning of section 12(3)(b) of the Act is unavailable to the petitioners. It, therefore, see no reason to disturb the conclusion reached by the Appellate Court that decree under section 12(3)(b) of the Act cannot be sustained. No doubt the Appellate Court has taken the view that since section 12(3)(a) of the Act was not attracted no decree under section 12(3)(b) could be passed. Such wide proposition however, cannot be sustained. But, nevertheless, for reasons referred to above, I am not interfering with the conclusion recorded by the Appellate Court that no decree under section 12(3)(b) can be made in the fact situation of the present case. 10. Such wide proposition however, cannot be sustained. But, nevertheless, for reasons referred to above, I am not interfering with the conclusion recorded by the Appellate Court that no decree under section 12(3)(b) can be made in the fact situation of the present case. 10. In the circumstances, the impugned order is set aside in part and the matter is remanded to the Appellate Court for re-examination only on the question of bona fide requirement in the light of the observations made in this judgment. No order as to costs. Appellate Court, on remand, may decide the appeal as expeditiously as possible and preferably within 6 months from the receipt of writ from this Court. Matter remanded to Appellate Court. -----