Judgment : ORAL JUDGMENT: 1. Heard the learned counsel appearing on behalf of the Petitioner and the Respondents. 2. The Petitioner is the original tenant and the Respondents are the original landlords (for the sake of convenience, the parties shall be referred to as “the landlords and the tenant). 3. A notice of demand was sent by the landlords to the tenant dated 24.1.1981 claiming arrears of rent for the period from 1st January, 1980 to 30th April, 1981 at the rate of Rs.19.34 per month. No payment was made within one month from the date of service of notice of demand, nor any dispute was raised in respect of the standard rent by filing an application for fixation of standard rent claimed by the landlords by their notice of demand dated 24.1.1981, the landlords filed a eviction suit on the following grounds: (i) arrears of rent for more than six months; (ii) unlawful sub-letting, and; (iii) nuisance and annoyance. The Trial Court held that the landlords had proved that the tenant had not paid the amount demanded by the demand notice within one month and, therefore, was liable to be evicted from the suit premises. The Trial Court further held that the landlords had established that the tenant had sub-let the premises and, therefore, on these two grounds, decree of eviction was passed. It was held that the landlords had not established nuisance. Against the said judgment and order, the tenant preferred an appeal before the Division Bench before the Appellate Bench of Small Causes Court. However, the appeal was dismissed and the judgment ad order passed by the Trial Court was confirmed. 4. The learned counsel appearing on behalf of the Petitioner-tenant submitted that though it was an admitted position that the tenant had not paid rent within one month from the date of service of notice nor had filed any application for fixing the standard rent, yet the tenant had deposited the entire amount, after an order of scrutiny was passed by the Trial Court. It was submitted that, therefore, there was substantial compliance made by the tenant and, therefore, he was entitled to get protection under section 31(b) of the Rent Act. It was submitted that, therefore, there was substantial compliance made by the tenant and, therefore, he was entitled to get protection under section 31(b) of the Rent Act. He submitted that though the tenant had committed some defaults, and had not continued to deposit the rent in the Court from 1990, he had filed an application in this Court seeking leave of the Court to deposit the said amount and that this Court had permitted the tenant to deposit the said amount in this Court including arrears which were not deposited in the Trial Court. It was then submitted that so far as the second ground of sub-letting is concerned, the landlords had not added the said sub-tenant as party defendant in the suit. It was then submitted that so called subtenant was, in fact, the niece of the tenant and she had continued to stay in the premises even after the death of the tenant and, therefore, she cannot be treated as the sub-tenant. It was further submitted that mere occupation by third party in the suit premises, was not sufficient for proving sub-letting and that it was necessary to prove that possession was handed over and secondly, that any amount was received as a result of the said sub-letting by the original tenant. Reliance was placed on a judgment of the Apex Court in the case of Shama Prashant Raje vs. Ganpath and Others [(2000) 7 Supreme Court Cases 522] and judgment of the Learned Single Judge of this Court in the case of C.C.YI (Dr.), Medical Practitioner, Bhiwandi vs. Smt. Jankidevi Anantlal Gupta and Ors. [2001(4) Mh. L.J.]. It was also submitted that these facts were not taken into consideration by both the Lower Courts and, therefore, they had committed an error of law which is apparent on the face of record. It is submitted that, therefore, on both the counts, finding arrived at by the Lower Courts was liable to be set aside. 5. [2001(4) Mh. L.J.]. It was also submitted that these facts were not taken into consideration by both the Lower Courts and, therefore, they had committed an error of law which is apparent on the face of record. It is submitted that, therefore, on both the counts, finding arrived at by the Lower Courts was liable to be set aside. 5. On the other hand, the learned counsel appearing on behalf of the Respondents-landlords submitted that so far as the question of arrears of rent are concerned, since the case was filed in the year 1981, the tenant was not entitled to get benefit of the amendments made to the said section in the year 1987 and, therefore, his case was squarely covered under the provisions of section 12(3) (a) of the Rent Act. Secondly, it was submitted that it was an admitted position that the tenant had failed to deposit the amount of monthly rent from 1990 onwards, therefore, there was no substantial compliance as submitted by the learned counsel for the tenant. It was submitted that the wording of section 12(3)(b) was mandatory and this Court could not overlook noncompliance of the said provisions. In support of the said submissions, he has relied on the judgment of the Apex Court in the case of Mranalini B. Shah and another vs. Bapalal Mohanlal Shah [AIR 1980 Supreme Court 954]. The judgment of the Learned Single Judge of this Court in the case of Mohammed Ishaque Haji vs. Aklima w/o Shabbir[1997 Bom. R.C. 445] and the judgment of the Learned Single Judge of this Court in the case of Shamrao Baburao Bhagwat vs. Dattatraya Sopanrao Kalekar and others[1992 Bom. R.C. 334] and the judgment in the case of Smt.Ammini Amma and others vs. P.V. Gad[1989 Mah. R.C.J. - 534]. So far as the ground of sub-letting is concerned, it was submitted that concurrent finding of facts recorded by both the Courts below. It was established that the tenant was not residing in the said premises and had gone to Ratnagiri and, therefore, exclusive possession was handed over to Sushila, who is the legal heir of the Original Petitioner herein. It was submitted that, therefore, the judgments on which reliance was placed by the learned counsel appearing on behalf of the tenant would not apply to the facts of the present case. 6. It was submitted that, therefore, the judgments on which reliance was placed by the learned counsel appearing on behalf of the tenant would not apply to the facts of the present case. 6. After having heard both the counsel at length, in my view, no case is made out for interfering with the judgment and order passed by the Lower Courts. 7. So far as the ground of arrears of rent is concerned, it is an admitted position that after the service of demand notice, the tenant has not paid the amount, which was demanded, to the landlords within one month from the date of service. No application for fixation of standard rent has been filed. Though initially amount was deposited by the tenant after the Small Causes Court had passed an order on the scrutiny application, thereafter, from 1990 onwards the tenant had not deposited the said amount. The legal position is quite settled. It has been consistently held by the Apex Court and various Single Judges of this Court that if the tenant fails to pay the amount in the Trial Court, then he is not entitled to get the benefit of the provisions of section 12(3) (b). The Apex Court in the case of Mranalini B. Shah and another (supra) has observed that the term 'regularly' which is found in provisions of section 12(3)(b) is mandatory and not directory. The Apex Court has held that in the case of monthly tenancy, the Court had no discretion to treat payments made at irregular intervals as sufficient compliance with Clause (b). The Apex Court has observed that in paragraph 12 as under: “12. The above enunciation, clarifies beyond doubt that the provisions of clause (b) of Section 12 (3) are mandatory, and must be strictly complied with by the tenant during the pendency of the suit or appeal if the landlord's claim for eviction on the ground of default in payment of rent is to be defeated. The word “regularly” in clause (b) of Section 12(3) has a significance of its own. It enjoins a payment or tender characterised by reasonable punctuality, that it to say, one made at regular times or intervals. The regularity contemplated may not be a punctuality, of clocklike precision and exactitude, but it must reasonably conform with substantial proximity to the sequence of time or intervals at which the rent falls due. It enjoins a payment or tender characterised by reasonable punctuality, that it to say, one made at regular times or intervals. The regularity contemplated may not be a punctuality, of clocklike precision and exactitude, but it must reasonably conform with substantial proximity to the sequence of time or intervals at which the rent falls due. Thus, where the rent is payable by the month, the tenant must, if he wants to avail of the benefit of the latter part of cl.(b), tender or pay it every months as it falls due, or at his discretion in advance. If he persistently defaults during the pendency of the suit or appeal in payment the rent, such as where he pays it at irregular intervals of 2 or 3 or 4 months- as is the case before us – the Court has no discretion to treat what were manifestly irregular payments, as substantial compliance with the mandate of this clause irrespective of the fact that by the time the judgment was pronounced all the arrears had been cleared by the tenant”. The ratio of the judgment of the Apex Court has been followed by this Court in number of cases. Some of which are relied upon by the learned counsel appearing on behalf of the landlords. It is not possible, therefore, to accept the submissions made by the learned counsel appearing on behalf of the Petitioner-tenant. 8. So far as the second ground of sub-letting is concerned, there is some substance in the submissions made by the learned counsel appearing on behalf of the Petitioner. It has been consistently held by this Court and by the Apex Court that for the purpose of establishing the ground of sub-letting, it is not sufficient to prove mere occupation of the premises by a third party. It has been held that the landlord has to establish that possession was delivered to the sub-tenant and secondly, that the tenant was receiving some amount of compensation from the sub-tenant. Both the Courts below have ignored this aspect completely. Perusal of the evidence led by both the parties clearly discloses that it is not brought on record by the landlord what was amount of compensation received by the tenant. Apart from that, the Petitioner has stated that she was niece of the original tenant and has been residing in the premises from her childhood. Perusal of the evidence led by both the parties clearly discloses that it is not brought on record by the landlord what was amount of compensation received by the tenant. Apart from that, the Petitioner has stated that she was niece of the original tenant and has been residing in the premises from her childhood. Both the Courts below have not taken into consideration this fact. The finding recorded by both the Courts below, therefore, will have to be set aside. 9. However, since the landlord had established that the Petitioner tenant was in arrears of rent, the decree of eviction which is passed on that ground is confirmed. 10. The learned counsel appearing on behalf of the Petitioner seeks stay of the judgment and order of this Court for a period of eight weeks. Since the stay is in operation from the date of admission, this order is stayed for a period of eight weeks from today. The Petitioner, however, give an usual undertaking within two weeks from today. The Petitioner and his family members and any other person residing in the suit premises shall give an individual undertaking, failing which the stay granted by this Court shall stand vacated. 11. Writ petition is, accordingly, disposed of.