JUDGMENT : SANGEETA K. VISHEN, J. 1. The captioned civil revision application, has been filed praying for quashing and setting aside the judgment and decree dated 16.08.2010 by the learned Additional District Judge and Presiding Officer, Fast Track Court, Dahod in civil appeal no. 34 of 2006. Applicants also pray for quashing and setting aside the judgment and decree dated 29.04.2006 passed by the learned civil Judge, Dahod in Regular Civil Suit no. 124 of 1998 whereby, the suit filed by the respondent-original plaintiff (hereinafter referred to as “the original plaintiff”) came to be allowed and the tenant-Rameshchandra Mohanlal Goswami i.e. husband of the applicant no. 1 and father of the applicant no. 2 (hereinafter referred to as “the tenant”) was directed to hand over the possession of the shop admeasuring 5 x 8, situated on plot no. 33 (hereinafter referred to as “the shop in question”). 2. The facts, culled out from the captioned proceeding, are thus: 2.1 The shop in question, was let to the tenant on the monthly rent of Rs.250/- The respondent landlord i.e. original plaintiff filed Regular Civil Suit no. 124 of 1998 praying for eviction on the ground that the tenant is in arrears as per the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as “the Act of 1947”). As aforestated, the suit came to be decreed vide judgment dated 29.04.2006 and the tenant was directed to hand over the possession. Being aggrieved, the tenant filed a civil appeal no. 34 of 2006 which came to be dismissed and hence, the captioned revision application. 3. Mr. K.V. Shelat, learned advocate appearing for the applicants, submitted that the court of first instance, has passed the decree on the premise that the provisions of clause (a) of sub-section (3) of Section 12 would apply and therefore, in the captioned proceeding, the issue is whether provisions of clause (a) of sub-section (3) of Section 12 or clause (b) of sub-section (3) of Section 12 of the Act of 1947 would apply? 3.1 While inviting attention to the notice dated 18.02.1998, it is submitted that the original plaintiff has clearly stated that in addition to the rent, responsibility of the tenant was to pay the taxes. 3.1 While inviting attention to the notice dated 18.02.1998, it is submitted that the original plaintiff has clearly stated that in addition to the rent, responsibility of the tenant was to pay the taxes. Therefore, it was the case of the original plaintiff that the municipal taxes and the education cess were the liabilities of the tenant and since are paid annually, it cannot be said that the rent is payable by month and if it is not payable by month, the provisions of clause (a) of sub-section (3) of Section 12 would not apply. The case would fall in the category of “any other cases” and therefore, what would be attracted, would be the provisions of clause (b) of sub-section (3) of Section 12. It is submitted that the proceeding, is based on the notice and the stand in the notice, is to be considered. 3.2 It is next submitted that in the second notice, it has been categorically stated that the rent which was paid by the tenant has been noted in the diary. It is submitted that there was a specific reference of the diary maintained and everything was noted in it which could not be produced before the trial court. Accordingly, the tenant filed an application seeking production of additional evidence which, came to be rejected on 19.04.2010 which order, was the subject matter of challenge before this Court in Special Civil Application no. 8090 of 2010. The writ petition came to be disposed of vide order dated 16.07.2010; however, liberty was reserved to the tenant to raise the contention before the revisional court. 3.3 It is submitted that it is admitted that no separate note was issued and diary was maintained by the tenant and when it was a crucial piece of evidence, the application seeking production of additional evidence, ought to have been permitted; instead, the same came to be rejected. Even in the evidence of the tenant, a question was asked and he has, in no uncertain terms, stated about maintaining diary and also its importance. It is submitted that initially, as the diary was not available, it was not produced and subsequently at the appellate stage an application was filed seeking production of the additional evidence, in support of the stand of the tenant that he has made the payment of the rent. It is submitted that initially, as the diary was not available, it was not produced and subsequently at the appellate stage an application was filed seeking production of the additional evidence, in support of the stand of the tenant that he has made the payment of the rent. It is submitted that when existence and possession of the diary was not disputed, the application ought to have been allowed. On the contrary, because of the non-production of the diary, the trial court raised an adverse inference which, was not in the right earnest. It is next submitted that the evidence was such which, would have thrown sufficient light substantiating that the tenant was not in arrears of rent. Had the application seeking additional evidence allowed, it would have done substantial justice between the parties. Also, application seeking production of additional evidence, ought to have been heard with the appeal; however, the application was decided prior to the hearing of the appeal which course adopted by the appellant court was erroneous. 3.4 Further, the order of the trial court is only with respect to the arrears holding that the provisions of clause (a) of sub-section (3) of Section 12 of the Act of 1947 stand satisfied. It is submitted that various documents namely Exhibit 58, 59 and 60 would clearly indicate that the amount towards rent was paid. It is therefore submitted that when the amount towards rent was paid, it cannot be said that the tenant was in arrears. Reliance is placed on the judgment in the case of Sirajudheen v. Zeenath, 2023 (0) AIJEL-HC 70437. It is submitted that the provisions of Order XLI and more particularly Rule 27, 33 were discussed and considered. It has been held and observed that application can be decided only at the stage of final hearing which would facilitate the appellate court to appreciate the relevance of the evidence. 3.5 Further reliance is placed on the judgment in the case of Sanjay Kumar Singh v. State of Jharkhand rendered in Civil Appeal No. 1760 of 2022 wherein, it has been held and observed that Order 41 Rule 27 of the Code enables the appellate court to take additional evidence in exceptional circumstances. 3.5 Further reliance is placed on the judgment in the case of Sanjay Kumar Singh v. State of Jharkhand rendered in Civil Appeal No. 1760 of 2022 wherein, it has been held and observed that Order 41 Rule 27 of the Code enables the appellate court to take additional evidence in exceptional circumstances. It has also been held and observed that the appellate court may permit additional evidence if the conditions laid down in the Rules are found to exist and the parties are not entitled as of right to the admission of such evidence; however, at the same time, where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and interest of justice clearly renders it imperative that it may be allowed to be permitted on record. 3.6 It is submitted that therefore additional evidence, ought to have been allowed as authenticity and the existence of the document, is not an issue. It is submitted that the appellate court should have decided the application seeking production of additional evidence at the time of final hearing only then the appellate court could have appreciated the facts which, would have facilitated the removal of the cloud. Timeline for considering the application has not been adhered to, having not done so, it is a material irregularity committed by the appellate court. 3.7 In support of the merits of the case, reliance is placed on the judgment in the case of Abdul Gani Abdul Latif v. Sarifa Begum D/o Nizammuddin Saiyed Imam, 2005 (2) GLH 331 wherein, it has been held and observed that whether the landlord has demanded municipal taxes and education cess under the suit notice is not relevant. What is relevant is whether the tenant is liable to pay such municipal taxes and education cess, etc. If the tenant is liable to pay municipal taxes and education cess, the provisions contained in clause (a) of sub-section (3) of Section 12 of the Act of 1947 would not be attracted. 3.8 Further reliance is placed on the judgment in the case of Vanlila Vadilal Shah v. Mahendrakumar J. Shah, 1975 GLR 71 wherein, it has been held and observed that education cess when claimed in addition to the contractual rent it amounts to ‘permitted increases’. 3.8 Further reliance is placed on the judgment in the case of Vanlila Vadilal Shah v. Mahendrakumar J. Shah, 1975 GLR 71 wherein, it has been held and observed that education cess when claimed in addition to the contractual rent it amounts to ‘permitted increases’. Education cess not levied monthly, it cannot be said that the part of rent was payable by month. 3.9 It is submitted that the appellate court, was in error in not properly considering that the trial court did not consider the contention as regards the notice wherein, there was a demand of the tax by the original plaintiff. It is submitted that if there was a demand of the tax by the landlord, then the case would definitely fall under the provisions of clause (b) of sub-section (3) of Section 12 of the Act of 1947 inasmuch as, the taxes have to be paid annually and not monthly. It is submitted that the education cess is a statutory liability and hence, case would be governed by clause (b) of sub-section (3) of Section 12 and not clause (a) of sub-section (3) of Section 12 of the Act of 1947. It is submitted that the pleadings includes the statutory notice as well and the appellate court therefore committed an error in not considering the averments in the notice so also in the suit. 3.10 It is further submitted that even if there is no demand of tax and cess, the case would fall under the provisions of clause (b) of sub-section (3) of Section 12 of the Act of 1947 save and except there is a specific agreement between the parties. In the present case, the landlord has demanded the tax which aspect, is strengthened by the contents of the notice issued by him. It is submitted that denial by the tenant is not the criterion for switching over from the provisions of clause (a) of sub-section (3) of Section 12 to clause (b) of sub-section (3) of Section 12 of the Act of 1947. The denial has been considered by the appellate court; however, that was not relevant. What is to be seen, is the agreement between the parties. The denial has been considered by the appellate court; however, that was not relevant. What is to be seen, is the agreement between the parties. 3.11 Reliance is placed on the judgment in the case of Dayalal Gangaram v. Bhimani Bhupatrai Chunilal, 1977 GLR 349 wherein, it has been held and observed that if the landlords wanted to exercise the right under clause (a) of sub-section (3) of Section 12 without any such restriction of fulfilling the first condition of the rent being payable by the month, they should enter into agreement of tenancy under which the liability to pay education cess would be borne by the landlords and in which event no such question would arise of recovery of permitted increase. 3.12 While summing up, it is submitted that it is the case of governed by the provisions of clause (b) of sub-section (3) of Section 12 of the Act of 1947. Both the courts below have come to the conclusion regarding clause (a) of sub-section (3) of Section 12. Though issues were thoroughly argued so also the aspect of considering additional evidence at the stage of final hearing; both the courts did not consider it and have committed the error. It is therefore urged that the captioned civil revision application deserves to be allowed and the matter be remitted to the court below for fresh consideration. 4. Mr. Dipan Desai, learned advocate appearing for the original plaintiff, while dealing with the aspect of production of the additional evidence, submitted that the applicants are estopped from raising such contention in view of the order dated 16.07.2010 passed by this court in Special Civil Application no. 8090 of 2010. It is submitted that vide order dated 19.04.2010, the application seeking production of additional evidence came to be rejected and thereafter, the matter was adjourned from time to time. After the disposal of the writ petition before this Court on 16.07.2010, that the appeal came to be finally disposed of in the month of August 2010 and therefore, what has been observed in the order dated 16.07.2010, was the liberty to raise the contention before the appellate court. Even after passing of the order dated 16.07.2010 by this Court, the tenant did not raise any argument before the appellate court and therefore, the contention as regards additional evidence, was not answered. Even after passing of the order dated 16.07.2010 by this Court, the tenant did not raise any argument before the appellate court and therefore, the contention as regards additional evidence, was not answered. It is submitted that the contention is also raised that since the hearing of the appeal, concluded that the appeal was withdrawn, that is also incorrect. The appeal was pending before the appellate court and judgment was awaited and therefore, it was not clear that the judgment, would be in whose favour and who would be challenging the order. 4.1 It is further submitted that having not raised such a contention, it would be impermissible for the applicants to raise the contention. Even if permitted, the document not produced cannot now be permitted to produce. It is further submitted that the document which the applicants are proposing to place it on record, is the diary. It is submitted that in the proceeding before the trial court, though the diary was very much available with the tenant, he chose not to produce the same may be on the advice of the learned advocate. Therefore, the trial court drew an adverse inference and it cannot be said that any error has been committed by the trial court. It is submitted that document dated 05.03.1998 i.e. reply to the reply to the notice, was not forming part of the record before the trial court and therefore, no reliance can be placed. 4.2 While referring to the appeal memo Exhibit 1, it is submitted that the appeal was filed on 12.06.2006. Clearly there was not a single ground raised with regard to the maintenance of the diary. Even the amendment in the appeal memo, which was carried out is with regard to the provisions of applicability of clause (b) of sub-section (3) of Section 12 of the Act of 1947 and not as regards maintenance of the diary. 4.3 While referring to the petition memo of the captioned revision application, it is submitted that except ground ‘E’ there is not a whisper about the diary. Further, in ground ‘E’ all what has been stated is about the adverse inference drawn by the trial court. It is submitted that in none of the proceedings or the averments, the applicants have raised the ground of the diary and hence the applicants cannot be now permitted to raise the contention for the first time. Further, in ground ‘E’ all what has been stated is about the adverse inference drawn by the trial court. It is submitted that in none of the proceedings or the averments, the applicants have raised the ground of the diary and hence the applicants cannot be now permitted to raise the contention for the first time. It is submitted that by placing reliance on the said document, the applicants are trying to contend that they have deposited the rent, which the applicants would be estopped from doing it. 4.4 It is submitted that sub-section (1) of Section 12 provides that a landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays, or is ready and willing to pay, the amount of the standard rent and permitted increases. The provision will not apply inasmuch as, the tenant did not show any readiness and willingness to pay the amount. So far as the provisions of sub-section (3) of Section 12 are concerned, clause (a) provides: (i) where the rent is payable by month; (ii) there is no dispute regarding the amount of standard rent or permitted increases; (iii) and if such rent or increases are in arrears for a period of six months or more and (iv) the tenant neglects to make payment thereof until the expiration of the period of one month after the notice. When all the conditions stand satisfied, that the decree is to follow. It is submitted that the applicants have admitted that dispute was not raised of standard rent. In the present case, all the conditions enumerated in clause (a) of sub-section (3) of Section 12 of the Act of 1947 stood satisfied and therefore, the trial court did not commit any error so also the appellate court. 4.5 While referring to paragraph (2) of the plaint, it is submitted that there was a specific reference of the rent of Rs.250/-. Paragraph (3) contained the aspect of arrears of rent and issuance of the notice and non-payment within a period of one month which, would be the fourth condition. Paragraph (4) provides for the cause of action. In the entire plaint, there is not a whisper about demand for cess or tax and suit was limited to the rent which was fixed at Rs.250/-. Paragraph (7) contained the prayer clause. Paragraph (4) provides for the cause of action. In the entire plaint, there is not a whisper about demand for cess or tax and suit was limited to the rent which was fixed at Rs.250/-. Paragraph (7) contained the prayer clause. As against this, if the reply of the tenant is considered, in paragraph (6), the tenant has not denied the amount of the rent. No dispute as regards the standard rent is raised and on the contrary, it is the case of the tenant that the rent is payable by month. In paragraph (7), the liability of the payment of cess/tax is denied and submission is made before this Court for the first time that the rent was not payable by month, which is only with a view to getting out of the provisions of clause (a) of sub-section (3) of Section 12 of the Act of 1947. It is submitted that since contention was not raised, that the trial court did not frame any issue about the liability of the payment of tax/cess. All throughout the case was of clause (a) of sub-section (3) of Section 12 and not clause (b) of sub-section (3) of Section 12 of the Act of 1947. 4.6 It is further submitted that in the cross-examination, the original plaintiff, only accepts the question which was put and the reply; however, the reply would not make the case under the provisions of clause (b) of sub-section (3) of Section 12 of the Act of 1947. More particularly, when it was the specific case of the original plaintiff that the rent was payable by month. If one is to consider the evidence of the tenant, there is an admission on his part that he is not liable to pay tax and cess. So is the position in the cross-examination confirming categorical admission. So far as payment of rent is concerned, there also there was a specific admission that he has not deposited the amount mentioned in the notice. 4.7 It is next submitted that even if one is to consider the provisions of clause (b) of sub-section (3) of Section 12 of the Act of 1947, there is a limited protection available to the tenant. 4.7 It is next submitted that even if one is to consider the provisions of clause (b) of sub-section (3) of Section 12 of the Act of 1947, there is a limited protection available to the tenant. 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 only the benefit would be available. In the present case, it was never the case of the tenant that he has fulfilled those conditions. On the contrary, it is admitted that he has not paid the rent which is clear from the cross-examination. 4.8 While adverting to the judgment of the trial court, It is submitted that the learned Judge, has discussed each and every aspect while deciding issues and after detailed discussion, it has been pointed out that what was agreed between the original plaintiff and the tenant, was the rent to be paid monthly. It is further observed that there is no dispute as regards the permitted increase and the tenant is in arrears of rent as he has failed to pay the amount for more than 6 months. Despite service of notice, the rent was not deposited within the stipulated period and therefore, the protection as contained in the provisions of clause (b) of sub-section (3) of Section 12 of Act of 1947 would not be available. While observing thus, it has been noted that the original plaintiff has been able to prove issue nos.1, 2 and 8. It is submitted that the trial court, has considered the case, applied the law and had come to the conclusion that provisions of clause (a) of sub-section (3) of Section 12 and not clause (b) of sub-section (3) of Section 12 of the Act of 1947 would apply. Therefore, it cannot be said that the learned Judge, committed any material irregularity or any illegality. 4.9 Similarly, the appellate court, has discussed in detail all the aspects. Contentions of the respective parties have been recorded. The appellate court, considered the issue whether the tenant is liable to pay municipal tax. Therefore, it cannot be said that the learned Judge, committed any material irregularity or any illegality. 4.9 Similarly, the appellate court, has discussed in detail all the aspects. Contentions of the respective parties have been recorded. The appellate court, considered the issue whether the tenant is liable to pay municipal tax. Considering the notice Exhibit 62 dated 18.02.1998 so also the document Exhibit 63 i.e. reply to the notice, it has been pointed out that it was the case of the tenant himself that the municipal tax/cess was not to be paid by the tenant. The appellate court considered the oral evidence wherein, clearly, the tenant has denied the fact that he had to pay the tax or cess to the original plaintiff. The judgments cited have been thoroughly considered and after considering the facts so also the judgments, it has been concluded that the submission that the case falls under the provisions of clause (b) of sub-section (3) of Section 12 of the Act of 1947 is not tenable and unacceptable. 4.10 It is submitted that the appellate court while dealing with the contention of the maintenance of the diary, noted that in the cross-examination of the tenant, he has deposed that he has kept the account and has a notebook but has not produced the same in the evidence. The appellate court was of the opinion that there is no explanation offered for withholding the notebook of the account of payment of rent which goes against the tenant. It is submitted that by observing thus, that the appellate court concluded in favour of original plaintiff. 4.11 It is next submitted that the scope of revision under the provisions of sub-section (2) of Section 29 is very limited. If the arguments advanced on behalf of the applicants are accepted, it would amount to appreciating and re-appreciating of the evidence. Even if another view is possible, the revision cannot be entertained. It is submitted that it is by now well settled that second first appeal cannot be permitted. If the arguments advanced on behalf of the applicants are accepted, it would amount to appreciating and re-appreciating of the evidence. Even if another view is possible, the revision cannot be entertained. It is submitted that it is by now well settled that second first appeal cannot be permitted. 4.12 Reliance is placed on the judgment in the case of Helper Girdharbhai v. Saiyed Mohmad Mirasaheb and Others, 1987 (2) GLH 261 it has been held and observed that while exercising the revisional powers, the High Court must ensure that the principles of law have been correctly borne in mind; the facts have been properly appreciated and a decision is arrived at taking all material and relevant facts in mind. It is well settled that permitting in the guise of revision, substitution of one view where two views are possible and the Court of Small Causes has taken a particular view and if a possible view has been taken, the High Court would be exceeding the jurisdiction to substitute its own view with that of the courts below because it considers it to be a better view. 4.13 Further reliance is placed on the judgment in the case of Patel Valmik Himatlal & Others v. Patel Mohanlal Muljibhai (Dead) through LRs. 1998 (2) GLH 736 . It has been held and observed that revisional powers are exercised only for a limited purpose of correcting a substantial error of law which goes to the root of the decision and that the High Court cannot substitute its own finding on a reappraisal of evidence, even though different view is possible. 4.14 Reliance is also placed on the judgment of the Apex Court in the case of Hindustan Petroleum Corporation Limited v. Dilbahar Singh, (2014) 9 SCC 78 . It has been held and observed that finding of fact recorded by Court below, if is perverse or has been arrived at without consideration of the material evidence or such finding is based on no evidence or misreading of the evidence or is grossly erroneous that, if allowed to stand, it would result in gross miscarriage of justice, is open to correction because it is not treated as a finding according to law. It has been held that to satisfy itself to the regularity, correctness, legality or propriety of impugned decision or the order, the High Court shall not exercise its power as an appellate court to re-appreciate or re-assess the evidence for coming to a different finding on facts. Revisional power is not and cannot be equated with the power of reconsideration of all questions of fact as a court of first appeal. 4.15 Reliance is also placed on the judgment in the case of Dhirubhai Laxmanbhai Dobariya v. Ashwin Jayantilal Doshi, 2022 (2) GLH 476 . It has been held and observed that rent restrictions statutes do not confer revisional authority the power as wide as that of the appellate court or appellate authority despite such power being wider than that provided in Section 115 of the Code of Civil Procedure. But it is not wide enough to make the High Court a second court of first appeal. 4.16 It is therefore submitted that the scope and ambit of the provisions of the revisional powers, are though wide but limited to an extent that where two views are possible and the court below has taken a possible view, the High Court would be exceeding its jurisdiction to substitute its own view because it considers it to be a better view. 4.17 While dealing with the aspect of provisions of clause (a) of sub-section (3) of Section 12, Reliance is also placed on the judgment in the case of Allansur Rasulla v. Balchand Ramji, 1962 (0) GLR 182 . While considering the above provisions, it has been held and observed that the word ‘may’ has to be interpreted as ‘must’ and that the court has no option but to decree the suit if conditions contained in the clause (a) of sub-section (3) of Section 12 stand fulfilled. Further reliance is placed on the judgment in the case of Mohammedbhai S. Sheikh v. Vrajlal Mathurdas, 2002 (4) GLR 3405 wherein, it has been held and observed that merely because rent includes the element of municipal tax does not mean that rent is not payable by month. Further reliance is placed on the judgment in the case of Mohammedbhai S. Sheikh v. Vrajlal Mathurdas, 2002 (4) GLR 3405 wherein, it has been held and observed that merely because rent includes the element of municipal tax does not mean that rent is not payable by month. If rent is fixed rent per month, element of tax within such fixed rent makes no difference and such fixed rent remains “rent payable by month.” 4.18 It is submitted that the plaint is premised on the ground that there is no readiness or willingness by the tenant as he did not deposit the amount and therefore, provisions of clause (a) of sub-section (3) of Section 12 of the Act of 1947 would be attracted and if the conditions are satisfied, the court is bound to pass the decree. 4.19 Reliance is also placed on the judgment in the case of Raju Kakara Shetty v. Ramesh Prataprao Shirole and Another, (1991) 1 SCC 570 . It is submitted that in the case before the Apex Court, payment of tax was one of the components still, the Apex Court has held that education cess is a part of rent within the meaning of the Act. While answering the issue whether the parties can by agreement quantify the amount and make it payable on a month to month basis, it has been held and observed that if the parties by mutual consent work out an arrangement for the enforcement of the owner’s statutory right to recover the tax amount and for discharging the tenant’s statutory obligation to reimburse and if the parties have agreed to the tenant occupant discharging his liability by a fixed monthly payment not exceeding the tax liability, the said monthly payment would constitute ‘rent’ payable by the month within the meaning of clause (a) of sub-section (3) of Section 12 of the Act of 1947. Further reliance is placed on the judgment in the case of Samiben Suleman v. Bharvad Bai Khimiben Nanubhai, 2004 (1) GLH (UJ) 5. 4.20 Reliance is also placed on the judgment in the case of Abdul Gani Abdul Latif v. Sarifa Begum D/o Nizammuddin Saiyed Imam (supra) wherein, it has been observed that what is relevant is whether the tenant is liable to pay such municipal taxes and education cess. 4.20 Reliance is also placed on the judgment in the case of Abdul Gani Abdul Latif v. Sarifa Begum D/o Nizammuddin Saiyed Imam (supra) wherein, it has been observed that what is relevant is whether the tenant is liable to pay such municipal taxes and education cess. It is submitted that what is claimed in the notice is not relevant and what would be relevant is whether the tenant has to pay such tax/cess. In the case on hand, it has been the consistent stand of the tenant that payment of tax/cess is not his responsibility. 4.21 Reliance is also placed on the judgment in the case of Brahmanand Layakram v. Shah Natwarlal Harakhlal, 2001 (2) GLR 1144 wherein, it has been held and observed that if the tenant fails to deposit the entire arrears of rent on the first date of hearing and further fails to deposit the rent with the trial court regularly, then the tenant would be disentitled to the benefit under clause (b) of sub-section (3) of Section 12 of the Act of 1947. 4.22 It is therefore submitted that if at all, the tenant is claiming the benefit of clause (b) of sub-section (3) of Section 12 of the Act of 1947, conditions enumerated, are required to be fulfilled, failing which, it would be impermissible for the tenant to invoke the said provision. It is submitted that the applicants, even otherwise, are having another shop and therefore, no relief deserves to be granted in their favour. 5. In brief rejoinder, Mr. K.V. Shelat, learned advocate submitted that irregularity is looming large inasmuch as, the provisions of clause (a) of sub-section (3) of Section 12 clearly provides that the rent is to be payable by month. As per the notice Exhibit 62, the landlord himself has demanded, not only the contract rent but also the cess amount and taxes. It is submitted that the issuance of notice being a prerequisite, the case would be governed under clause (b) of sub-section (3) of Section 12 of the Act of 1947. The landlord, now cannot turn around, and choose to opt for clause (a) of sub-section (3) of Section 12 of the Act of 1947. It is submitted that the issuance of notice being a prerequisite, the case would be governed under clause (b) of sub-section (3) of Section 12 of the Act of 1947. The landlord, now cannot turn around, and choose to opt for clause (a) of sub-section (3) of Section 12 of the Act of 1947. Reliance is placed on the judgment in the case of N. M. Engineer and Others v. Narendra Singh Virdi and Another, AIR 1995 SC 448 so also on the judgment in the case of Narbheram Ambalal & Others v. Jayantilal Dahyabhai Kharva, 1998 (2) GLH 550 wherein, it has been held and observed that if the landlord wanted decree for eviction under the provisions of clause (a) of sub-section (3) of Section 12 of the Act of 1947, it would not be permissible for him to switch over to other provisions inasmuch as, the requirement of the respective provisions are to be fulfilled. 5.1 While summarizing, it is submitted that the rent was not payable by month inasmuch as, it was incumbent upon the tenant to make the payment of tax and education cess and hence, the provisions of clause (b) of sub-section (3) of Section 12 of the Act of 1947 would be attracted and the courts have failed to appreciate the same. Had the Court, considered the provisions of clause (b) of sub-section (3) of Section 12 of the Act of 1947, different conclusion would have been there. It is submitted that as per the provisions of sub-section (2) of Section 29, if there is an irregularity, this Court, can very well interfere with inasmuch as, the said irregularity has caused immense prejudice to the applicants. Moreover, the trial court, drew the adverse inference only because the diary was not produced. In fact, for removal of the cloud, the document i.e. the diary, ought to have been permitted, as it would have done a substantial justice in the matter. Furthermore, the application as regards additional evidence, ought to have been decided at the time of final hearing. Not allowing the production of the additional evidence, is a procedural irregularity and therefore, the matter requires to be remanded back. 6. Mr. Furthermore, the application as regards additional evidence, ought to have been decided at the time of final hearing. Not allowing the production of the additional evidence, is a procedural irregularity and therefore, the matter requires to be remanded back. 6. Mr. Dipan Desai, learned advocate, while responding in brief, relied upon the judgment of the Apex Court, in the case of Anil Kumar Dadurao Dhekle v. Rukhiben, 2017 (14) SCC 215 and submitted that in the said case, the first appellate court noted that under notice, as rent and other local taxes were demanded, the tenancy was not a monthly tenancy but annual. Considering the evidence, the Apex Court, noted that despite there was a demand in the notice of the tax and cess, both the courts i.e. appellate court and High Court erred in ignoring the material evidence that the tenancy was monthly tenancy and the case would fall under clause (a) of sub-section (3) of Section 12 of the Act of 1947. While distinguishing the judgment of this Court in the case of Narbheram Ambalal & Others v. Jayantilal Dahyabhai Kharva (supra), it is submitted that the facts were completely different and therefore, the same would not apply to the facts of the present case. 7. Heard the learned advocates appearing for the respective parties and perused the documents made available on the record and has accorded thoughtful consideration. 8. The captioned revision application has been preferred challenging the judgment and order dated 16.08.2010 passed by the learned Additional District Judge and Presiding Officer in Regular Civil Appeal no. 34 of 2006 whereby, the judgment and decree of the trial court dated 29.04.2006 passed in Regular Civil Suit no. 124 of 1998, has been confirmed. By the judgment dated 29.04.2006, the learned Additional Civil Judge, decreed the suit in favour of the original plaintiff, inter alia, directing the tenant to hand over the possession of the shop in question within a period of one month. 9. The shop in question, was given on a rent to the tenant. The original plaintiff issued a notice dated 18.02.1998 to the tenant requiring him to pay the rent for the period from 01.12.1992 to 28.02.1998 i.e. for 62 months at the rate of Rs.250/- per month. In the notice, reference was also made about the liability of the tenant to pay the tax over and above the monthly rent. The original plaintiff issued a notice dated 18.02.1998 to the tenant requiring him to pay the rent for the period from 01.12.1992 to 28.02.1998 i.e. for 62 months at the rate of Rs.250/- per month. In the notice, reference was also made about the liability of the tenant to pay the tax over and above the monthly rent. With this, the original plaintiff, required the tenant to pay the amount on or before 31.03.1998. The said notice was replied to by the tenant and in paragraph 4, he has agreed about the rent of Rs.250/- of the shop in question; however, there was a specific denial that he has ever agreed for vacating the shop in question in 11 months or payment of tax/cess. The tenant also denied that he is a defaulter and in arrears. In the interregnum, notices were exchanged; however, the said notices were not forming part of the suit and therefore, they are not referred to. 10. Suit came to be filed by the original plaintiff on the ground that the tenant was in arrears as he has not paid the rent for last more than 6 months. Averments made in the plaint were to the effect that the shop in question has been rented on monthly rent of Rs.250/- for the purpose of keeping the material for cycle repairing. Further averments are made that the tenant has been negligent in making the payment of the rent and it is outstanding for the period from 01.12.1992 to 28.02.1998 i.e. for 62 months. The total amount claimed towards the rent was Rs.15,500/- for more than 6 months. Original plaintiff, prayed to pass a decree as the tenant had failed to make the payment of the rent for the period from 01.12.1992 to 28.02.1998. The tenant had filed his reply as well as written statement contending that the original plaintiff has given the shop in question on monthly rent of Rs.250/- of which, there is no dispute; however, the agreement for 11 months or the tax/cess to be paid by him was denied. 11. Trial court vide judgment and decree dated 29.04.2006 allowed the suit and directed the tenant to hand over the peaceful and vacant possession of the shop in question within the stipulated period. 11. Trial court vide judgment and decree dated 29.04.2006 allowed the suit and directed the tenant to hand over the peaceful and vacant possession of the shop in question within the stipulated period. Trial court, considering the averments made in the plaint and the written statement, formulated eleven issues and the issues relevant for the present purpose, are: (1) whether the plaintiff proves that the defendant is in arrears of rent for more than six months; (2) whether the plaintiff proves that the defendant has neglected to pay the due amount of rent within one month from the date of service of notice; (3) whether the defendant proves that he has already paid the rent to the plaintiff but has never issued the receipt thereof to the defendant; (4) whether the defendant proves that he has also sent the amount of rent by money order and the plaintiff has accepted that amount; (5) whether the defendant proves that he was and is ready and willing to pay the due amount of rent and (8) whether the plaintiff is entitled to get the vacant possession of the suit premises. Rest of the issues namely issue nos. 6, 7, 9 and 10 were answered in negative against which, no appeal has been filed and are not in issue. The trial court, considering the evidence, observed that the rent, has been fixed at Rs.250/- which, was paid regularly, earlier. The trial court, discussed the aspect of the notebook maintained by the tenant and the fact that after the refusal to accept the money order by the landlord, the tenant has not paid the rent. The admission of the tenant that he has not deposited the amount of rent mentioned in the notice was also considered so also the admission that the tenant has not regularly deposited the amount of rent with the court. Considering the said evidence and the admission, the trial court concluded that at the time of filing of the suit, the tenant has not paid the amount of rent regularly. 12. While dealing with the aspect of maintenance of the diary, the trial court noted that in the cross-examination, the tenant has himself admitted that he has been maintaining the account of the rent paid in the notebook; but, no notebook has been produced by the tenant. 12. While dealing with the aspect of maintenance of the diary, the trial court noted that in the cross-examination, the tenant has himself admitted that he has been maintaining the account of the rent paid in the notebook; but, no notebook has been produced by the tenant. It was incumbent upon the tenant to have produced the same, since it has not been produced, there is a reason to believe that the tenant is in arrears of rent. The trial court considered the undisputed aspect of relationship of the landlord and the tenant; the rent of Rs.250/- per month; no dispute raised as regards the standard rent so also issuance and service of the notice and the reply. The trial court, therefore, was of the opinion that the requirement of the provisions of clause (a) of sub-section (3) of Section 12 of the Act of 1947 stands satisfied and the tenant is not entitled for the protection under clause (b) of sub-section (3) of Section 12 of the Act of 1947. With this, the issue nos.1, 2 and 8 were answered in affirmative, whereas, issue nos.3, 4 and 5, were answered in negative. 13. Being aggrieved, the tenant preferred an appeal and the appeal came to be dismissed and the judgment dated 29.04.2006 passed by the trial court was confirmed. The issues were formulated and one of which, was whether the trial court has erred in deciding the suit under the provisions of clause (a) of sub-section (3) of Section 12 of the Act? The appellate court, considered the notice dated 18.02.1998 - Exhibit 62 by the landlord asking for the rent and proportionate tax as well as the reply to the notice-Exhibit 63 wherein, the tenant has contended that the tax/cess was not to be paid by him or that any assurance was extended by him. Considering the denial by the tenant, his liability to make the payment of the tax/cess, the appellate court, concluded that the municipal tax was not to be paid by the tenant. The appellate court also considered that there is no contract in writing or any oral evidence on the basis of which it can be urged that there was any contractual obligation on the tenant to pay the municipal tax. 14. The appellate court also considered that there is no contract in writing or any oral evidence on the basis of which it can be urged that there was any contractual obligation on the tenant to pay the municipal tax. 14. The appellate court has taken note of the admission and denial of the tenant that he has not given any binding for the payment of the municipal tax. Considering the evidence Exhibit 41 etc., and distinguishing the judgments, the appellate court has observed that the tenant has to prove that he is liable to make the payment of the municipal tax and has to raise the dispute that he has paid the municipal tax and cess in addition to the rent, it is only thereafter, that the tenant can take recourse of the provisions of clause (b) of sub-section (3) of Section 12 of the Act of 1947. The appellate court therefore came to the conclusion that the contention that his case falls under the provisions of clause (b) of sub-section (3) of Section 12 cannot be accepted. Paragraphs 23 to 26 of the judgment read thus: “23. Keeping in view, the principle laid down in the above cited case law and the oral as well as documentary evidence in our case on hand, as stated earlier in reply of the notice as well as in his oral evidence the defendant tenant has refused liability for the payment of rent, first of all, the defendant has to prove that he was liable for the payment of municipal tax and he had to raise the dispute that as he has to pay the municipal tax and education cess in addition to the rent then the case falls under the provision of Sec. 12(3)(b) of the Bombay Rent Act. But in our case on hand, as stated earlier mere evasively stated that the defendant is liable to pay the proportionate tax not sufficient to consider the case falling under Sec. 12(3)(b) of the Bombay Rent Act. As the principle laid down in the above cited case law in some cases the tenant had to pay the tax even though the Hon’ble High Court has considered the case under Sec. 12(3)(a). As the principle laid down in the above cited case law in some cases the tenant had to pay the tax even though the Hon’ble High Court has considered the case under Sec. 12(3)(a). Keeping in view the principle laid down in the above cited case law and case on our hand and considering the oral as well as documentary evidence the both parties, the principle of the cited case law contention of the appellant tenant for the consideration that this case falls under the provision of Sec. 12(3)(b) is not tenable and acceptable. 24. If we see whether the trial court has erred in considering the case of the plaintiff falling under Sec. 12(3)(a) of the Bombay Rent Act. As stated in Santokbai Narbheram Barot v. Ramdas Dwarkadas, 1996 (2) GLR 80 the Hon’ble High Court has laid down following requirements for the case falling under the purview of Sec. 12(3)(a). (1) That the rent is payable by month. (2) Amount of the standard rent and quote and permitted increases is not disputed. (3) Standard rent or permitted increases are unpaid for six months or more. (4) That the tenant has received notice under Sec. 12(2). (5) Tenant has neglected to pay the standard rent and permitted increases for such period within a period of one month-after receipt of the notice under Sec. 12(2) of he Bombay Rent Act. If the aforesaid requirements are not disputed. With the result, the tenant is liable for ejectment on the ground of non-payment of rent under Sec. 12(3)(a) of the Bombay Rent Act.” 25. In our case on hand, if we peruse the pleadings as well as oral evidence there is a monthly tenancy. The defendant tenant has not raised dispute of the standard rent. The tenant has not paid arrears of rent in reply of the notice. The notice served on 14/12/98 while the money order Exh.60 disclose that it was on 05/05/98 money order received back by the defendant. The defendant after money order dated 16/12/92 no any evidence produced by the defendant that he has paid rent to the plaintiff. The defendant has relied upon the contentions of the cross-examination of the plaintiff, wherein, the plaintiff has stated that he is not paying receipt of the rent but the defendant has not served any notice to the plaintiff for non-receipt of the rent. The defendant has relied upon the contentions of the cross-examination of the plaintiff, wherein, the plaintiff has stated that he is not paying receipt of the rent but the defendant has not served any notice to the plaintiff for non-receipt of the rent. The defendant has not sent any rent by money order. If the receipt not given by the plaintiff he know that the rent can be tendered by the money order and in past he tendered the rent by the money order. The defendant has in cross-examination of the plaintiff deposed that he has kept the account and he has note book but has not produced any note book in the evidence. There is no sufficient explanation for withhold the note book of account of payment of rent. These facts goes against the defendant that he has tendered the rent regularly. The defendant has not paid the rent due within one month after the service of notice. Therefore, he is not entitled for the protection. In view of Jagmohan Ratilal Sheth v. Jayantilal Laxmishanker, 1973 GLR 161 . If part of arrears sent landlord justified in refusing the same Tender of part of arrears not equivalent to payment of part of arrears so as to reduce the default. 26. The respondent has relied upon Manorama S. Masurekar v. Dhanlaxmi G. Shah and Another, 1966 GLR 1061 wherein, after discussion the provision of Secs. 12(1), 12(2), 12(3)(a), it is held that “tenant making default in paying rent for a period of more than six months - Arrears of rent not paid within one month of notice- Amount of arrears sent after one month - Tenant cannot claim protection under Sec. 12(1) - Conditions of Sec. 12(3)(a). It is immaterial whether the tender was made before or after the institution of the suit. He has relied upon Kantilal Nanchand Sheth v. Jeramdas Vajubhai Parmar, 2002 (2) GLH 641 wherein, Hon’ble Court has laid down that service of notice of demand made by landlord no any rent paid within one month of service of notice of demand once case is found to have been covered under Sec. 12(3)(a) court has no option but to decree suit. In our suit on hand the defendant tenant has not raised dispute of standard rent. He has not tendered arrears of rent demanded by the plaintiff by notice within one month of service of notice. In our suit on hand the defendant tenant has not raised dispute of standard rent. He has not tendered arrears of rent demanded by the plaintiff by notice within one month of service of notice. The service of notice has been admitted by the tenant but rent not paid within one month. if we peruse notice served on 14/2/98 and as per Exh.60, the rent tendered by money order in the month of May. Looking to this fact, the tenant has not complied the provision of Sec. 12(3)(a). As laid down in Samiben Suleman v. Bharvad Bai Khimiben Nanubhai & Ors. 2004 (1) GLH (U.J.) 5 even after service of notice and no dispute existed on standard rent, the Court has no alternative but to pass a decree of eviction.” 15. The appellate court, considering oral as well as documentary evidence, concluded that the case falls under the provisions of clause (a) of sub-section (3) of Section 12 of the Act of 1947. Besides, the appellate court considered all the judgments and while considering the same, it has also given finding as to how the judgments would not be applicable to the facts of the present case. The appellate court also took note of the fact that the tenant has another shop in the nearby area of the shop in question. The appellate court, therefore, did not interfere with the judgment of the trial court on the ground that no error can be said to have been committed by the trial court allowing the suit. 16. At this stage, brief reference to the evidence would be apt. In the notice dated 18.02.1998 by the original plaintiff, the demand made was that there was a default in payment of rent of Rs.250/- for the period from 01.12.1992 to 28.02.1998. It had also averred that over and above the rent, the tenant has also to pay the tax/cess. The notice was replied to by the tenant wherein, in paragraph 4 in vernacular and english translation would be: “that the facts mentioned in paragraph 2 of the notice, are not fully correct and are not admitted. The shop in question has been taken on rent for an amount of Rs.250/- to which, there is no dispute; however, the rented premises is to be vacated within a period of 11 months and the tenant to pay the tax, is incorrect and is not accepted. The shop in question has been taken on rent for an amount of Rs.250/- to which, there is no dispute; however, the rented premises is to be vacated within a period of 11 months and the tenant to pay the tax, is incorrect and is not accepted. The tenant further states that he has kept the shop in question on rent at the rate of Rs.250/- and further denies that the shop in question was given on rent for 11 months or the liability of the tenant to pay the tax.” The tenant therefore has adopted a categorical stand that he had not given any assurance or binding to pay the tax. Therefore, it was the specific case of the tenant that he was not liable to pay the tax. 17. Apart from the aforesaid, in the suit filed by the original plaintiff, there is not a whisper that the tenant was liable to pay the tax/cess. In paragraph 2, reference is of giving the shop in question on rent of Rs.250/-. Paragraph 3 says about default in the payment of rent. Further averment in the plaint, is with respect to the issuance of the notice. Similarly, the nature of the tenancy rights are also mentioned and in paragraph 6 which, is the cause of action, it has been stated that the shop in question has been given on rent and from 01.12.1992 to 28.02.1998, the rent has not been paid and despite issuance of the notice on 18.02.1998, the rent has not been paid by giving a vague reply. Thus, the suit was filed seeking recovery of the possession of shop in question coupled with the prayer that the tenant be directed to make the payment of rent. 18. As against this, if one is to see the written statement of the tenant. In paragraph 6, he has accepted the fact of shop in question being given on rent for Rs.250/- however, denied that the same was given only for the purpose of storing the repairing material. Though, there was no demand towards the cess and the tax, in the written statement, the tenant, in no uncertain terms, has denied his obligation to pay the tax. Therefore, the contention raised by the learned advocate appearing for the applicants that rent was not payable by month but annually is misplaced and misconceived. Though, there was no demand towards the cess and the tax, in the written statement, the tenant, in no uncertain terms, has denied his obligation to pay the tax. Therefore, the contention raised by the learned advocate appearing for the applicants that rent was not payable by month but annually is misplaced and misconceived. When all throughout it was the case of tenant that tax was not his liability, whether it would be permissible to him to now turn around and take a contrary stand switching over to clause (b) of sub-section (3) of Section 12 of the Act of 1947. In the opinion of this Court, the answer has to be in ‘No’. 19. At this stage, the judgment of this Court in the case of Mohammedbhai S. Sheikh v. Vrajlal Mathurdas (supra) is worth referring to. This Court, while dealing with the contention raised by the tenant that as the rent included the element of tax which is a annual feature, it cannot be said to be rent payable by month and therefore, clause (a) of sub-section (3) of Section 12 of the Act of 1947 would not apply. This Court, while not accepting the view, relied upon the judgment of the Apex Court in the case of Raju Kakara Shetty v. Ramesh Prataprao Shirole and Another (supra). The facts before the Apex Court were that learned Additional Small Causes Judge, decreed the suit against the plaintiff holding that tenant would be entitled to the protection as he has paid the entire rent. In the appeal, the appellate court reversed the decree holding that the rent was payable by month and there being no dispute regarding standard rent and permitted increases and the tenant having failed to pay the arrears within one month from the date of receipt of notice, was liable to be evicted under the provisions of clause (a) of sub-section (3) of Section 12 of the Act of 1947. The tenant being aggrieved, filed the proceeding before the Apex Court. The tenant being aggrieved, filed the proceeding before the Apex Court. Submissions were made on behalf of the tenant that since the tenant was obliged to pay education cess and other taxes by way of permitted increases, which were payable at the end of the year, the case would not be attracted under the provisions of clause (a) of sub-section (3) of Section 12 of the Act of 1947 as the part of the rent payable annually and not monthly. On the other hand, the contention raised on behalf of the landlord was that once the elements contained in clause (a) of sub-section (3) of Section 12 of the Act of 1947, stand satisfied, the Court had no alternative but to decree the suit. The Apex Court, while not accepting the stand of the tenant, held and observed that if the parties have agreed to the tenant-occupant discharging his liability by a fixed monthly payment not exceeding the tax liability, the said monthly payment would constitute ‘rent’ payable by the month within the meaning of clause (a) of sub-section (3) of Section 12 of the Act of 1947. Relevant extracts of paragraph 13 reads thus: “13..............If by agreement the amount is so quantified and is made payable by the month not withstanding the owner’s liability to pay the same annually to the local authority, the question is whether is such circumstances the ‘rent’ can be said to be payable by the month within the meaning of section 12(3)(a) of the Act? We see no reason why we should take the view that even where the parties mutually agree and quantify the tax amount payable by the tenant to the landlord on monthly basis, the rent should not be taken to be payable by the month within the meaning of section 12(3)(a)of the Act. A statutory right to recover the tax amount by way of reimbursement can be waived or limited by the holder of such right or the recovery can be regulated in the manner mutually arranged or agreed upon by the concerned parties so also as it is not in violation of statute. A statutory right to recover the tax amount by way of reimbursement can be waived or limited by the holder of such right or the recovery can be regulated in the manner mutually arranged or agreed upon by the concerned parties so also as it is not in violation of statute. If for convenience and to facilitate payment, the parties by mutual consent work out an arrangement for the enforcement of the owner’s statutory right to recover the tax amount and for discharging the tenant-occupant’s statutory obligation to reimburse the owner, we see no reason for refusing to uphold such a contract and if thereunder the parties have agreed to the tenant- occupant discharging his liability by a fixed monthly payment not exceeding the tax liability. The said monthly payment would constitute ‘rent’ payable by the month within the meaning of section 12(3)(a) of the Act. The view expressed by the Gujarat High Court in Vishwambar Hemandas, does not, with respect, state the law correctly if it holds that even in cases where the entire tax liability is on the landlord and the tenant had to pay a gross rent of Rs. 19.50 p.m. the mere recital in the lease that the rent is inclusive of taxes the case outside the purview of section 12(3)(a) of the Act. We are, therefore, in respectful agreement with the view taken by the appellate court and the High Court in that behalf. We, therefore, hold that as the tenant had failed to comply with the requirement of section 12(3)(a) to seek protection from eviction, the Courts below were justified in ordering his eviction.” 20. Apt would also be the judgment of this Court in the case of Allansur Rasulla v. Balchand Ramji (supra) wherein, this Court, has pointed out that clause (a) of sub-section (3) of Section 12 refers to the circumstances when the Court may pass the decree for eviction in a suit for recovery of possession. The word ‘may’ in sub-section has been interpreted as meaning ‘must’ and the Court, has no option but to decree the suit. The word ‘may’ in sub-section has been interpreted as meaning ‘must’ and the Court, has no option but to decree the suit. It has been held and observed that the Court is therefore bound to pass a decree for eviction in any suit for the recovery of the possession if the requirements of clause (a) of sub-section (3) of Section 12 are satisfied namely; (i) the rent must be payable by month; (ii) there must be no dispute regarding the amount of standard rent or permitted increases; (iii) such rent or permitted increases must be in arrears for a period of six months or more and (iv) the tenant must have neglected to make payment thereof until the expiration of the period of one month after the notice referred to in sub-section (2). 21. Similar such view has been taken by the Apex Court in the case of Manorama S. Masurekar v. Dhanlaxmi G. Shah, AIR 1967 (0) SC 1078 wherein, it has been held that if the conditions of clause (a) of sub-section (3) of Section 12 are satisfied, the tenant cannot claim any protection for eviction under the Act. It has also been held and observed that by tendering the arrears of rent after the expiry of one month from the service of notice in the sub-section (2), he cannot claim the protection under the general provisions of sub-section (1). It is immaterial whether the tender was made before after the institution of the suit. In a case falling within clause (a) of sub-section (3), the tenant must be dealt with under the special provisions of the said section and cannot claim any protection from eviction under the general provisions of sub-section (1). 22. Relevant would also be the judgment of the coordinate Bench in the case of Abdul Gani Abdul Latif v. Sarifa Begum D/o Nizammuddin Saiyed Imam (supra) wherein, this Court has held and observed that whether the landlord has demanded municipal taxes and education cess under the suit notice is not relevant and what is relevant is whether the tenant is liable to pay such municipal taxes and education cess. It was undisputed that the defendant therein was liable to pay municipal tax and education cess and under the circumstances, this Court, held that clause (a) of sub-section (3) of Section 12 would not be attracted. It was undisputed that the defendant therein was liable to pay municipal tax and education cess and under the circumstances, this Court, held that clause (a) of sub-section (3) of Section 12 would not be attracted. In the case on hand, from the very beginning, that is, from the stage of response to the notice and thereafter in the written statement, it was the clear and consistent stand of the tenant that he is not liable to pay tax/cess. Moreover, nothing has been placed on record to suggest that there was any agreement between the parties making the tenant responsible to make the payment of the cess/tax. 23. In the judgment of this Court in the case of Brahmanand Layakram v. Shah Natwarlal Harakhlal (supra), the issue was whether the decree for eviction could be passed under clause (b) of sub-section (3) of Section 12 of the Act of 1947. The trial court found that the tenant had failed to deposit the entire arrears of the rent on the first date of hearing and further failed to deposit the rent in the trial court regularly. This Court, considered that the stage of framing of the issues would be considered to be the first date and on that date, when the tenant failed to deposit the amount, the tenant was not entitled to the benefit under the provisions of clause (b) of sub-section (3) of Section 12 of the Act of 1947 and decree for eviction was rightly passed. The tenant in the present case has undisputedly not paid the rent after the receipt of notice and admits the same. 24. Yet in another judgment of the Apex Court in the case of Anil Kumar Dadurao Dhekle v. Rukhiben (supra), the tenant was in arrears. Notice was issued requiring him to vacate the premises in case he fails to make good the arrears of rent. Despite issuance of the notice, neither any dispute was raised as regards the standard rent nor the rent was paid. In the written statement filed by him, dispute was raised for the first time as to the standard rent; however, the tenant has never applied for fixation of the standard rent earlier or within one month from the service of the notice. In the written statement filed by him, dispute was raised for the first time as to the standard rent; however, the tenant has never applied for fixation of the standard rent earlier or within one month from the service of the notice. The trial court ordered the decree and in the appeal, the appellate court held that since rent and other local taxes were demanded the tenancy was not a monthly tenancy but annual and the rent was payable at the end of every year and therefore, the case was covered under clause (b) of sub-section (3) of Section 12 of the Act of 1947. In the appeal by the landlord, the Apex Court, taking note of the facts held and observed that the rent was due and notice issued by the landlord, was neither replied to nor the standard rent was disputed and the landlord had proved that the tenancy was not annual tenancy but was monthly tenancy. The Apex Court concluded that non-payment of rent and in absence of any dispute as regards the standard rent, it cannot be said that the case would be covered within the provisions of clause (b) of sub-section (3) of Section 12 of the Act of 1947 but would covered under the provisions of clause (a) of sub-section (3) of Section 12 of the Act of 1947. 25. Furthermore, Mr. K.V. Shelat, learned advocate has fairly stated that no dispute was raised as regards standard rent and the aspect of tenant in arrears of rent was admitted. The only contention raised, is that the rent is not payable by month and therefore, clause (b) of sub-section (3) of Section 12 of the Act of 1947, would be attracted. As discussed hereinabove, in the notice though there was a demand raised by the original plaintiff, it was denied by the tenant on the ground that he is not liable to pay any tax/cess. Besides, it was his own case that there was no liability of the tenant to pay the tax/cess. Also, in the plaint, there is not a single averment as regards cess/tax to be paid by the tenant therefore, to raise such a contention, would be without any basis and hence, misconceived. 26. Besides, it was his own case that there was no liability of the tenant to pay the tax/cess. Also, in the plaint, there is not a single averment as regards cess/tax to be paid by the tenant therefore, to raise such a contention, would be without any basis and hence, misconceived. 26. Applying the principle laid down by the Apex Court and this Court to the facts of the present case, no error has been committed either by the trial court or by the appellate court in deciding the issues and considering the case as per the provisions of clause (a) of sub-section (3) of Section 12 of the Act of 1947. 27. Adverting to the contention raised of additional evidence, it is required to be noted that application was filed seeking production of additional evidence which came to be rejected vide order dated 19.04.2010 and was subject matter of challenge before this Court by way of Special Civil Application no. 8090 of 2010. The said writ petition came to be withdrawn on 16.07.2010 with a liberty to raise the contention before the revisional court. Pertinently, on 16.07.2010, the appeal before the appellate court was pending adjudication and therefore, what this Court intended while granting liberty to the tenant was to raise the contention before the appellate court; however, despite such liberty granted, the tenant chose not to raise any contention. 28. Moreover, after the disposal of the writ petition by this Court, the appeal before the appellate court was adjourned on 22.07.2010 and thereafter on 05.08.2010 for the purpose of hearing. The appeal was heard finally and was disposed of by the appellate court on 16.08.2010. It was not known as to whether the appeal would be allowed or rejected. Thus, it is incorrect on the part of the learned advocate for the applicants to contend that as hearing of the appeal was concluded, that the matter was withdrawn. Pertinently, after the disposal of the writ petition and accepting the order dated 19.04.2010 passed by the appellate court rejecting the application for production of additional evidence, it would be impermissible for the applicants to raise such contention for, the said order has attained finality. 29. Pertinently, after the disposal of the writ petition and accepting the order dated 19.04.2010 passed by the appellate court rejecting the application for production of additional evidence, it would be impermissible for the applicants to raise such contention for, the said order has attained finality. 29. Besides, even on merits, if one is to go by the statement of the tenant before the trial court, the said diary was very much within his possession; but on account of the advice of his advocate, he chose not to place it on record. The said diary was sought to be placed at the time of appellate proceeding and as aforesaid, the appellate court while passing the order did not allow the said production of the additional evidence. 30. As aforesaid, the said order dated 19.04.2010 though challenged before this Court in the writ petition, it came to be withdrawn with a liberty; however, despite the liberty reserved to raise the contention before the appellate court, contentions were not raised and has now sought to be raised in the captioned civil revision application which would be impermissible and cannot be permitted and hence, the said contention stands rejected. 31. One more aspect also requires to be noted that the applicant no. 2 has shop in his possession wherein he is doing his business; however, an affidavit has been filed in the captioned proceeding by the applicant no. 1-mother indicating that she is running the cycle shop which aspect can also not to be taken into consideration inasmuch as, the same is nothing but an afterthought only with a view to seeing that the decree is not honoured and therefore, the same is also rejected. 32. At this stage, the scope and ambit of the provisions of sub-section (2) of Section 29 is also worth taking note of. It is by now well settled that distinction between an appeal and revision is a real one. A right to appeal carries with it right of re-hearing on law as well as fact, unless the statute conferring the right to appeal limits the re-hearing in some way. The power to hear a revision is generally given to a superior courts so that it may satisfy itself that a particular case is decided according to law. A right to appeal carries with it right of re-hearing on law as well as fact, unless the statute conferring the right to appeal limits the re-hearing in some way. The power to hear a revision is generally given to a superior courts so that it may satisfy itself that a particular case is decided according to law. The expression ‘according to law’ as contained in the provision and is not to be equated to the errors of law or fact simpliciter. As per the provisions of sub-section (2) of Section 29, it has to be ensured that the principles of law have been correctly borne in mind. Moreover, the facts have been properly appreciated and the decision arrived at taking all material and relevant facts in mind. Besides, the decision, does not lead to miscarriage of justice. The applicants have failed to satisfy any elements for invoking revisional powers under the provisions of sub-section (2) of Section 29 and therefore, this Court, is of the opinion that no error has been committed either by the trial court or the appellate court. Moreover, in view of concurrent findings of fact arrived at by both the courts below, the captioned revision application, does not warrant interference and is hereby rejected. No order as to costs. 33. In view of the disposal of the captioned civil revision application, civil application/s, if any, stands disposed of. No order as to costs. Record and proceeding be sent back to the court concerned. 34. At this stage, Mr. K.V. Shelat, learned advocate submitted that the applicant-original defendant has been protected all throughout that is, since the year 2010 and hence, it is urged that the stay be continued and the judgment and order be stayed for a period of six weeks. 35. Mr. Dipan Desai, learned advocate has vehemently opposed the said request on the ground that the original plaintiff has succeeded before the trial court and thereafter before the appellate court and therefore, when this Court has not entertained the captioned civil revision application, stay may not be extended. The applicant no. 1, even otherwise, is possessing alternative shop, where he is doing his business and is not in need of the shop in question. Whereas, the original plaintiff, though has succeeded twice is unable to enjoy the fruits of the decree. 36. The applicant no. 1, even otherwise, is possessing alternative shop, where he is doing his business and is not in need of the shop in question. Whereas, the original plaintiff, though has succeeded twice is unable to enjoy the fruits of the decree. 36. Considering the fact that the applicants have been protected by this Court since the year 2010 and are desirous of approaching the Apex Court, the stay of eviction decree is extended for a further period of six weeks from today.

RAMESHCHANDRA MOHANLAL GOSWAMI v. GIRDHARLAL HARIRAM JANI