( 1 ) PRESENT is the revision application filed by the original defendant " respondent " tenant being aggrieved of a judgment and decree passed in Regular Civil Appeal no. 82 of 1992 by the learned Joint District Judge / 3rd fast Track Court, Junagadh dated 19. 01. 2005. The learned first appellate Judge was pleased to partly allow the appeal. The judgment and order passed by the learned Joint Civil Judge (J. D.), Junagadh in Regular civil Suit No. 44 of 1981 denying the vacant and peaceful possession was set aside. The defendant was directed to hand over the vacant and peaceful possession to the plaintiff. The defendant was also directed to pay the mesne profits 2 Rs. 35/- per month till handing over of the possession. ( 2 ) FACTS giving rise to the present revision application are as under: the plaintiff filed a suit for recovery of possession of the premises let out to the tenant (present petitioner) at monthly rent of Rs. 35/- contending that the tenant is in arrears since 01. 06. 1979 to 30. 11. 1980 hence, a notice was given on 01. 12. 1980 which was served on 06. 12. 1980. The plaintiff prayed that the defendant be directed to pay the rent for the period commencing from 01. 06. 1979 and also to hand over the possession of the suit premises. ( 3 ) THE defendant (petitioner-tenant) filed his reply " exh. 16 contending that he is paying the rent regularly and denied all other averments and allegations made in the plaint. ( 4 ) MR. MEHUL S. Shah, the learned advocate for the petitioner vehemently contended that once the trial Court has answered the issue, "whether plaintiff proves that the defendants are tenants in arrears for more than six months" - in negative, the learned first appellate Judge, without reversing the finding, could not have even partly allowed the appeal setting aside the judgment and decree passed by the learned Joint Civil Judge (J. D.) in Regular civil Suit No. 44 of 1981 and could not have ordered defendant to hand over the vacant and peaceful possession of the rented premises to the plaintiff. ( 5 ) THE learned advocate invited the attention of the court to paragraph No. 8 of the judgment of the trial court wherein it is recorded that, it is on record that the plaintiff is not issuing any rent receipt to the defendant; the plaintiff has admitted this fact in his deposition " Exh. 26. It is also recorded that, the plaintiff has deposed that he used to make a note in a yellow coloured cover notebook of the defendant and was also maintaining note on a separate paper for his purpose. However, the defendant " Kunvarben Bhikhabhai aher denied this say of the plaintiff. The learned Judge appreciated the question of arrears by appreciating this oral evidence. In the present case, beyond the aforesaid oral evidence, there is no evidence in the form of documents. In such situation, the Court ought to have examined the controversy by appreciating the conduct of the parties. The learned Judge in the trial Court did not do that which is rightly done by the learned first appellate judge. It is not in dispute that the plaintiff had served the defendant with a notice alleging that the defendant has not paid the rent since 01. 06. 1979 to 30. 11. 1980 for 18 months hence, an amount of Rs. 630/- is due and payable by the tenant to the landlord. The Court cannot be unmindful of the fact that the case of the plaintiff, right from the beginning is that, the defendant was given the premises on rental in a very casual manner. It is also the case of the plaintiff that, the defendant was very irregular in making the payment, he was paying the rent with difficulty. In light of these facts, the landlord putting faith in the tenant was making a note of the receipt of the rent in a notebook having yellow coloured cover page. The plaintiff has also averred that he then a misfortune of suffering from a stroke of blindness due to which, he left for Rajkot from Junagadh, the place at which the suit premises are situated. IT is also the case of the plaintiff that on his return from Rajkot to Junagadh, he demanded the rent on 01. 12. 1980. the defendant behaved in a rude manner. It is the case of the plaintiff that the last rent was paid by the defendant on 05. 05. IT is also the case of the plaintiff that on his return from Rajkot to Junagadh, he demanded the rent on 01. 12. 1980. the defendant behaved in a rude manner. It is the case of the plaintiff that the last rent was paid by the defendant on 05. 05. 1979 " saturday and it was noted in that yellow coloured cover page notebook, which was in the custody of the defendant " tenant. The landlord then issued a notice to the tenant and demanded the rent. If a person was acting in a natural conduct, he would have immediately replied the notice stating that the contents of the notice are not correct. But then as it happens, the tenant must have gone to legal brain on receipt of the notice and the learned legal brain on having come to know the facts of the case must have advised the tenant that as the landlord is not issuing the receipts, it will not be possible for him to prove the non-payment and therefore, the tenant must sit tight over the notice and must not reply the same. This is nothing, but an inevitable exercise the Court is to undertake to appreciate the evidence led before it. At this juncture, Mr. Shah, the learned advocate pointed out paragraph No. 14 of the written statement " Exh. 16, of which a certified copy is with him. It is stated therein that after receipt of the notice, the tenant had contacted the landlord and explained his difficulties on which the landlord taking a sympathetic view in the matter, suggested the tenant that he need not reply the notice. ( 6 ) BY no stretch of imagination this conduct can be said to be normal conduct of a person who was paying the rent regularly. ( 7 ) MR. SHAH, the learned advocate submitted that the bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (for short, "the Rent Act) is amended in the year 1985 and the word, "regularly" is deleted. It is the argument of Mr. Shah that this deletion of the word, "regularly" should held the tenant. The tenant paid the rent last on 21. 04. 1992, as is recorded by the learned first appellate Judge in his judgment in paragraph No. 14. The tenant then paid rent only on 17. 07. 2001. The tenant paid Rs. 4,200/- on 17. Shah that this deletion of the word, "regularly" should held the tenant. The tenant paid the rent last on 21. 04. 1992, as is recorded by the learned first appellate Judge in his judgment in paragraph No. 14. The tenant then paid rent only on 17. 07. 2001. The tenant paid Rs. 4,200/- on 17. 07. 2001. The learned first appellate Judge has observed that the payment was made after lapse of 9 years and 3 months. This Court is unable to accept the submission of Mr. Shah. Deletion of the word, "regularly" cannot be and is not with the purpose that the tenant should enjoy the property without making any payment during the pendency of the proceedings. If the submission of Mr. Shah is accepted, it would come to that the tenant shall have the protection of the Rent Act even if he pays the rent for entire period just before the decree is passed against him. Mr. Shah lost sight of the fact that even after deletion of the word, "regularly", sub-Clause (i) of Clause (b) of sub-section (3) of Section 12 remains which reads as under: "continues to pay or tender in Court such rent and permitted increases till the suit is finally decided. " this Court is not in a position, to agree with the submissions of Mr. Shah. This provision of law cannot be read to mean that the tenant will be said to have discharge his duties even if he pays the entire amount of rent before the date of passing of a decree. If that was the intention then the legislature would have said so in so many words, but then that is not done and therefore, the submission of Mr. Shah cannot be accepted. ( 8 ) MR. SHAH worked hard and tried to convince this Court by citing following decisions: 1. TRIBHOVAN C. PANCHAL VS. SMT. LADHIBAI W/o punjaram, reported in 1982 (2) GLR 455 . 2. CHINNAMMA VS. GOPALAN AND OTHERS, reported in air 1996 SC 363 . 3. PANCHAL MOHANLAL ISHWARDAS VS. MAHESHWARI MILLS ltd. , reported in 1962 (3) GLR 574. to bring home his submission that under Section 60 of the rent Act, there is an obligation on the landlord to give a receipt in writing, in the prescribed form and in the manner prescribed therein. 3. PANCHAL MOHANLAL ISHWARDAS VS. MAHESHWARI MILLS ltd. , reported in 1962 (3) GLR 574. to bring home his submission that under Section 60 of the rent Act, there is an obligation on the landlord to give a receipt in writing, in the prescribed form and in the manner prescribed therein. He submitted that the Rules, 1948 under the Rent Act provides that a receipt given under the Rent Act for the amount of rent received in respect of any premises shall be in form No. 1. Form No. 1 provides for rent receipt and counterfoil including the signature of the person receiving the amount and also the tenant. The learned advocate submitted that thus it is obligatory or rather mandatory for the landlord to issue receipts under the Rent Act. There cannot be any dispute on this point as it is provided by the Rent Act and the Rules. But then the thrust of submissions of mr. Shah is that in a case where landlord does not issue rent receipts, a decree of eviction cannot be passed in his favour because he has committed a breach of mandatory duties caste on him by the Rent Act. In the opinion of this Court, the submission is stretched to such an extent that it may break at any time. If the legislature wanted the position to be as submitted by mr. Shah, it could have provided as one of the conditions that in the event of a landlord not issuing the rent receipts, he will not be entitled to a decree of eviction. Merely because in this country where illiteracy is not an exception, but is a rule, the people do manage their affairs by reposing faith in each other. If the tenant was so much offended by non-issuance of the rent receipts, he could have and he should have taken appropriate action against the landlord. Section 26 of the Rent Act provides:"26. Giving receipt for [any amount, received] compulsory 1. Every landlord shall give a written receipt for any amount [at the time when such amount is] received by him in respect of any premises in such form and in such manner as may be prescribed. " the legislature has taken care of non-compliance of the aforesaid provision by providing Sub-section (2) as under: 2. Every landlord shall give a written receipt for any amount [at the time when such amount is] received by him in respect of any premises in such form and in such manner as may be prescribed. " the legislature has taken care of non-compliance of the aforesaid provision by providing Sub-section (2) as under: 2. Any landlord or person who fails to give a written receipt for any amount received by him in respect of any premises shall, on conviction, be punishable with fine which may extend to one hundred rupees. "the legislature has nowhere provided that in the event of breach of Sub-section (1) of Section 26 of the Act, the court will deny the decree of eviction. ( 9 ) IN the present case, the Court had the oral evidence of the landlord and the oral evidence of the tenant. The court had no documentary evidence. It is the case of the landlord right from the beginning that he was making a note of the receipt of the rent in a notebook bearing yellow coloured cover page which was in the custody of the tenant. The veracity of the deposition of the landlord can be appreciated from the fact that he did depose in his chief examination that he used to make a note of the receipt of rent on a separate paper for his purpose. He does not keep back this information from the court. But then this say of the landlord is attacked. It is vehemently argued that the landlord should have produced that paper atleast. The learned trial Judge, lost sight of an important fact that the landlord had suffered a misfortune of stroke of blindness. For the treatment, he had to leave Junagadh and went to Rajkot. In such situation to expect a person to preserve a paper on which receipt of rent was recorded, is too much. In that view of the matter, the trial Court ought to have appreciated the evidence in light of the conduct of the parties. The tenant has not rendered any explanation of his conduct of not replying to the notice. This must be on legal advise being available to the tenant. In that view of the matter, the trial Court ought to have appreciated the evidence in light of the conduct of the parties. The tenant has not rendered any explanation of his conduct of not replying to the notice. This must be on legal advise being available to the tenant. Be that as it may, the Court could have drawn an adverse inference from the conduct of the tenant, which was not done and as a shortcut, the learned trial Judge recorded a finding that, the tenant was not in arrears. ( 10 ) MR. SHAH submitted that the learned first appellate judge has not reversed the finding recorded by the learned trial Judge that, the tenant is not in arrears. the learned first appellate Judge while discussing the rival contentions of the parties, has recorded thus:". . . . . . . . In his written statement, it is contended by the tenant that the entire amount has been paid by the defendant. On one side, defendant is saying that the amount of rent is paid by him while, in para-14 of the Written Statement, he has stated that the landlord is not accepting the rent. Referring to exh. 26 the evidence of the plaintiff, in the cross- examination, defendant has not made it clear about payment of rent. Burden is upon the tenant to prove that he has paid the rent. Referring to paras-7 and 8 of the Judgment, it is argued by Shri Vasavada that the evidence and pleadings are different from each other. As per tenant, on one side they are saying that when they were making payment, the landlord was making a note about payment of rent in a Note book and on the other hand, they are saying that the plaintiff was not issuing receipt. As per Section 12 of the Act, tenants are tenants in arrears for more than six months. When notice was issued to the tenant, tenant has not given reply to that notice and no dispute regarding standard rent was raised by the tenant. Therefore, it can be presumed that they are tenants in arrears from 1. 6. 79 to 31. 12. 80. Tenant should go on making payment regularly, in order to get protection under Section 12 (3 ( (b ). . . . . . . . " ( 11 ) MR. Therefore, it can be presumed that they are tenants in arrears from 1. 6. 79 to 31. 12. 80. Tenant should go on making payment regularly, in order to get protection under Section 12 (3 ( (b ). . . . . . . . " ( 11 ) MR. SHAH next contended that the learned first appellate Judge has erred in discussing about the protection available under Section 12 (3) (b) and then holding that the protection is not available. Mr. Shah submitted that under Section 12 (3) (b) what is provided is that, ". . . . . . . . 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 the Court the standard rent and permitted increases then due. . . . . " mr. Shah focused his entire attention only on this part of the Section and missed the rest of the Section. When his attention was invited to the remaining part, be placed wrong interpretation on Sub-clause (i) of Clause (b) of sub-section (3) of Section 12 of the Rent Act. As discussed hereinabove, Sub-clause (i) is that the tenant has to continue to pay. In the present case, tenant paid the arrears of rent after 9 years and 3 months. Such tenant cannot be said to have continued to pay. the learned first appellate Judge has recorded in so many words and that is not disputes also. The rent was first deposited on 21. 04. 1992 " Rs. 800/- Thereafter, it was paid only on 17. 07. 2001 " Rs. 4,200/ -. By no stretch of imagination, it can be said that the tenant continued to pay and if that is so, th learned first appellate Judge is right in holding that the tenant has lost the protection of the provisions of the Rent Act and has rightly passed the decree of eviction. ( 12 ) MR. SHAH submitted that Section 12 (1) is in negative form. The heading of Section 12 is so worded that it provides protection to the tenant. The heading is, "no ejectment ordinarily to be made if tenant pays or is ready and willing to pay standard rent and permitted increases. " mr. ( 12 ) MR. SHAH submitted that Section 12 (1) is in negative form. The heading of Section 12 is so worded that it provides protection to the tenant. The heading is, "no ejectment ordinarily to be made if tenant pays or is ready and willing to pay standard rent and permitted increases. " mr. Shah submitted that Sub-section (1) of Section 12 of the Act 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 standard rent and permitted increases, if any, and observes and performs the other conditions or the tenancy, in so far as they are consistent with the provisions of this Act. "mr. Shah submitted that Sub-section (2) of Section 12 also provides that:"no suit for recovery of possession shall be instituted by a landlord against a tenant on the ground of non payment of the 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 (VI of 1882 ). "mr. Shah submitted that in the present case, when there is a finding recorded by the trial Court that, the tenant was not in arrears, then there was no cause of action and the decree of eviction could not have been passed by the learned first appellate Judge. Mr. Shah in over enthusiasm in favour of the tenant missed sight of the fact that the entire matter was large open and he was considering the entire matter. The learned first appellate Judge was not to proceed from the point where the learned trial Judge had stopped. The learned first appellate Judge had come to the conclusion that the learned trial Judge has erred in recording a finding that, the tenant was not in arrears. The first appellate Court being a fact finding Court, rightly appreciated the evidence on record of the case and reversed the finding in the portion which is quoted hereinabove. The learned first appellate Judge had come to the conclusion that the learned trial Judge has erred in recording a finding that, the tenant was not in arrears. The first appellate Court being a fact finding Court, rightly appreciated the evidence on record of the case and reversed the finding in the portion which is quoted hereinabove. The learned first appellate Judge, may not be in so many words reverse a finding, but then the fact remains that the learned first appellate Judge after appreciating the evidence on record, decided as to whether the tenant is having the protection of Section 12 (3) (a) or Section 12 (3) (b ). The learned first appellate judge has recorded a finding that Section 12 (3) (a) is not applicable. Then remains Section 12 (3) (b) and after appreciating, the learned first appellate Judge has recorded a finding that the tenant has lost protection of section 12 (3) (b) on account of non-compliance of Sub- clause (i) of Clause (b) of Sub-section (3) of Section 12 of the Act. ( 13 ) MR. SHAH strenuously tried to convince the Court that this is a fit case where the matter be remanded to the learned first appellate Judge to re-appreciate the whole case and record his findings again. ( 14 ) IN the considered opinion of this Court, this Court finds that the learned first appellate Judge has not committed any error which warrants an interference at the hands of this Court. Hence, this revision fails and the same is dismissed. .