JUDGMENT : Vaibhavi D. Nanavati, J. 1. The applicant/tenant has preferred the present Civil Revision Application under Section 115 of the Code of Civil Procedure, 1908 challenging the judgment and order dated 30.04.1998 passed by the Joint District Judge, Rajkot in Regular Civil Appeal No.31 of 1991. 2. The brief facts leading to the filing of the present Civil Revision Application read thus: 2.1 The applicant is a tenant of the respondent for suit premises located at Rajkot and, in a previous suit, Civil Suit No. 38 of 1982, standard rent of the suit premises is fixed at Rs.125/- per month, certified copy of the decree is produced at Ex.26 and therein, it is ordered that the applicant has, in addition to Rs.125/- per month, to pay electric bill and water charges. During the pendency of the suit, as per receipts, the applicant deposited, by Exh. 35 to 45, Rs. 5,950/- in all the rent claimed in this suit, from date 14.02.1981 and in view of the deposits, no decree for any amount of rent was passed while passing decree below Ex.26, on date 24.01.1984 in that suit and according to the respondent/plaintiff-landlord, he had not withdrawn amount thus deposited in the earlier suit. 2.2 It is further the case of the applicant/tenant that despite the aforesaid fact, the respondent issued demand notice upon the applicant on 14.12.1984, demanding rent from date 14.01.1984 to date 13.12.1984 and electric charges and water charges and then filed suit for possession, alleging non- payment of rent for more than six months, claiming decree under section 12(3)(a) of the Bombay Rent Act, stating therein that standard rent is fixed at Rs.125/- per month, plus electric charges and water charges payable by the applicant, and also prayed for decree for possession under Sections 13(1)(g) and 13(1)(1) of The Bombay Rent Act and claimed decree for rent and mesne profits. 3. Mr. Henil M. Shah, learned advocate for the applicant has raised following contentions: (a) The suit was filed on 24.04.1985 and before the filing of the suit the applicant/tenant had already deposited Rs. 5,950/- in the Court. As per receipts, the applicant had deposited, by Exh. 35 to 45, Rs. 5,950/- in all, rent claimed in this suit, from date 14.02.1981 to 26.01.1985 and in view of the deposits, no decree for any amount of rent was passed while passing decree below Ex.26. 5,950/- in the Court. As per receipts, the applicant had deposited, by Exh. 35 to 45, Rs. 5,950/- in all, rent claimed in this suit, from date 14.02.1981 to 26.01.1985 and in view of the deposits, no decree for any amount of rent was passed while passing decree below Ex.26. (b) The applicant/tenant had disputed the arrears of rent and the arrears were wrongly claimed by the respondent/plaintiff vide demand notice dated 14.12.1984 despite the fact the amount deposited by the applicant/tenant were adjusted by the respondent/plaintiff. (c) Reliance was placed on the findings of both; the Trial Court and appellate Court that the applicant/tenant was not in arrears of rent and the Trial court has further gone to the extent holding that the demand notice was invalid as the applicant/tenant was not in arrears of rent. (d) Mr Henil Shah, learned advocate relied on the finding of the appellate Court in para 7 and contended that the appellate court has come to the finding that the applicant/tenant were not in arrears of rent and that the applicant/tenant had paid the rent in excess which was adjusted by the respondent/plaintiff. (e) Mr Henil Shah, learned advocate further contended that the appellate Court erroneously applied Section 20 of the Bombay Rent Act and thereby relying on the judgment of the Hon’ble Supreme Court in the case of Maganlal Chhotalal Desai Vs Chandrakant Motilal reported in (1969) 10 GLR 175, the appellate Court erred in coming to the conclusion that the rent paid by the applicant/tenant in Civil Suit No. 38 of 82 had become over-payment on passing of decree Exh.26 on 24.01.1984 and from 24.01.1984 till date of issuance of suit notice dated 14.12.1984, the period of six months had already expired and the applicant/tenant has not deducted the rent, nor filed any suit for recovery of the excess payment of rent and therefore the applicant’s right to recover of excess payment can be said to have come to an end and when the applicant/tenant is claiming deduction of the over payment towards the claim of the respondent/landlord after the period of limitation, it amounts to arrears of rent and non- readiness and willingness to pay the rent on behalf of the tenant. (f) It was contended that the appellate Court had come to the finding that the applicant/tenant had deposited the rent in Civil Suit No. 38 of 82 at Rs. 5,950/- between the period from 15.07.1982 to 27.09.1983 and also sent Rs. 116/- by money order which is accepted by the respondent/ plaintiff so till date of filing of the suit, the applicant/tenant had deposited rent of Rs. 6066/- and therefore, on date of suit notice Exh. 27 as well as on date of suit 29.04.1985 the rent was not in arrears. (g) Mr. Henil Shah, learned advocate further contended that Exh.49 dated 03.01.1985 which is the reply given by the advocate of the respondent/plaintiff that the plaintiff have adjusted the amount deposited by the applicant/tenant and therefore, having accepted the adjustment of the rent deposited by the applicant/tenant, the applicant/tenant was not in arrears of rent either on the date of the demand notice or on the date of filing of the suit and when the applicant/ tenant was not in arrears of rent, the cause of action or the basis of the suit does not survive. It was further contended that the Trial Court rightly held that the demand notice was invalid. Mr Henil Shah, learned advocate relied on the judgment of this Hon’ble Court in the case of Kansara Kantilal Fogatlal Vs. Bai Maniben D/o Kansara Chunilal Dajibhai reported in 1967(0) AIJEL-HC206115. (h) Mr. Henil Shah, learned advocate further submitted that when there is no cause of action to file the present suit as the tenant was not in arrears and since the respondent/plaintiff had appropriated the rent there was no willful default by the applicant/tenant and therefore, no order of eviction could be passed against the the applicant/tenant. Mr. Henil Shah, learned advocate, relied on the judgment of the Hon’ble Supreme Court in the case of Dakaya Alias Dakaiah versus Anjani reported in 1995(0) AIJEL-SC 7166. (i) Lastly, Mr. Henil Shah, learned advocate contended that the appellate court wrongly passed an order of eviction against the applicant/tenant under section 12(3)(a) as the conditions under section 12(3)(a) are not fulfilled in the facts of the present case. (j) Mr. Henil Shah, learned advocate contended that the meaning of neglect in the section is not merely non-payment of rent but, it is a willful default in non-payment of the rent. Mr. (j) Mr. Henil Shah, learned advocate contended that the meaning of neglect in the section is not merely non-payment of rent but, it is a willful default in non-payment of the rent. Mr. Henil Shah, learned advocate, relied on the judgment of this Hon’ble Court in the case of Sarabhai Jeshingbhai Choksy Versus Babulal@ Chandulal Lallubhai Darji reported in 1972(0) AIJEL-HC 210912. (k) Mr. Henil Shah, learned advocate contended that the applicant/tenant had not neglected to pay the rent and he was always willing to pay the rent and the same has been clearly recorded by the Trial court in paragraph 24 of its judgment and therefore, the impugned judgment passed by the appellate court is erroneous and requires to be set aside. 4. Per contra, Mr. Nagesh Sood, learned advocate appearing on behalf of the respondent/plaintiff contended as follows; (a) It is submitted by Mr. Sood, learned advocate that the applicant/tenant is in arrears of rent at the rate of Rs.125/- from 14.12.1983 to 13.04.1985 for 15 months at Rs.1,785/- and previous rent of Rs.175/- totaling to Rs.2,050/- were in arrears of rent up to 13.04.1985. (b) It is submitted by Mr. Sood, learned advocate that the respondent/plaintiff has claimed that for the period from 14.12.1983 to 13.01.1984 for one month, the rent is monthly Rs.175/- and from 14.01.1984 to 13.04.1985, the rent is due at the rate of Rs.125/-. (c) It is submitted by Mr. Sood, learned advocate that the applicant/tenant was in arrears of rent and therefore respondent/plaintiff had filed Civil Suit No.38 of 82 and in that suit, the compromise was arrived at between the parties and decree by compromise was passed and standard rent was fixed in suit at Rs.125/- (certified copy of decree at Exh.26 of civil suit No.38/82). In said suit, the rent was demanded at Rs.175/- per month from 14.12.1981 to 13.01.1982 at Rs.1,925/-. (d) It is submitted by Mr. Sood, learned advocate that the suit notice demanding the arrears of rent is produced at Exh.27. In this notice, the rent is demanded for 11 month from 14.01.1984 to 13.12.1984 and electricity charge is at Rs.330/- for 11 months and Rs.40/- for water tax and total claim was made in notice at s.1,745/- and notice charge of Rs.125/- were also demanded and total demand was made at Rs.1,870/-. (e) It is submitted by Mr. In this notice, the rent is demanded for 11 month from 14.01.1984 to 13.12.1984 and electricity charge is at Rs.330/- for 11 months and Rs.40/- for water tax and total claim was made in notice at s.1,745/- and notice charge of Rs.125/- were also demanded and total demand was made at Rs.1,870/-. (e) It is submitted by Mr. Sood, learned advocate that the period of limitation for adjustment of excess payment of rent would start from 25.01.1984 up to 24.07.1984 as provided under section 20 of Bombay Rent Act and on the principles laid down in the decision of Maganlal vs. Chandrakant, 1969(10) G.L.R. 175. (f) It is submitted by Mr. Sood, learned advocate that the applicant/tenant should have deducted or adjusted the excess payment within six months from 24.01.1984 but, he did not make any such deductions or adjustment of excess payment towards the rent falling in arrears within this period of six months. (g) It is submitted by Mr. Sood, learned advocate that the allegation of the applicant/tenant alleging that the respondent/ plaintiff-landlord has withdrawn the said amount of Rs.5,950/- deposited by him in previous suit No.38 of 82 is not correct. Except the bare words of the applicant/tenant, there is no positive and conclusive evidence regarding withdrawal of entire amount of Rs.5,950/- by the plaintiff-landlord. The applicant/tenant would have produced the evidence to show that the plaintiff-landlord has withdrawn the entire amount of Rs.5,950/- deposited by him in previous suit No.38 of 82 by producing the record of payment made by the Court, but he has not done so. (h) It is submitted by Mr. Sood, learned advocate that the plaintiff in his deposition Exh.35 denied that rent at rate of Rs.125/- from 14.01.1981 to 26.01.1985 calculating to Rs.5,950/- deposited in Court was withdrawn by plaintiff. So the plaintiff denies to have withdrawn entire amount. When the evidence of plaintiff is accepted that he has not withdrawn the entire amount of Rs.5,950/- from the Court deposited by the applicant/tenant and when respondent/plaintiff demands rent in suit notice Exh.27, rent being due from 14.01.1984 to 13.12.1984, it can not be said that the plaintiff has withdrawn the rent from the Court and appropriated it towards the arrears of rent upto 13.01.1984. (i) It is submitted by Mr. (i) It is submitted by Mr. Sood, learned advocate that in view of this evidence on record, the applicant/tenant having failed to inform the respondent/plaintiff to appropriate the rent for subsequent months of rent having fallen due from the amount and also that whether the plaintiff had withdrawn from the Court within six months from date from which the rent has become excess payment to plaintiff. (j) It is submitted by Mr. Sood, learned advocate that the in case the respondent/plaintiff had not withdrawn that amount from the Court, the applicant/tenant ought to have withdrawn the amount from the Court and tendered the same amount to the landlord as and when the rent had fallen due or he would have obtained the receipt from the landlord acknowledging the receipt of rent in advance for the subsequent months, but it is not done so. (k) It is submitted by Mr. Sood, learned advocate that the applicant/tenant in his deposition Exh.32 admitted in cross- examination that rent is in arrears from 14.01.1984 and he, in present suit did not deposit the amount as per order of the Court. (l) It is submitted by Mr. Sood, learned advocate that the trial Court has passed the order ordering the applicant/tenant to deposit the rent as per ordered to deposit rent from 14.12.1984 to 13.09.1990 at rate of Rs.125/- falling in arrears at Rs.10,425/- on or before 28.10.1990 and also directed the applicant/tenant to deposit rent at Rs.125/- per month from 14.09.1990 as and when rent falls due till disposal of the suit. It is on record that applicant/tenant has not deposited the rent as per the direction of the Court. It appears from the record that the applicant/tenant has deposited only Rs.1400/- on 24.04.1986 as per receipt Exh.46 and sent Rs.116/- by money order on 08.07.1985 vide money order coupon Exh.47; which is after the filing of the suit and therefore the applicant/tenant was in arrears of rent at the time of filing of the suit. (m) It is submitted by Mr. Sood, learned advocate that the applicant/tenant has not shown payment or deposit of rent over and above the said amount stated above in the Court in present suit in trial Court or in the appellate Court after filing of the appeal by plaintiff-landlord. (n) It is submitted by Mr. (m) It is submitted by Mr. Sood, learned advocate that the applicant/tenant has not shown payment or deposit of rent over and above the said amount stated above in the Court in present suit in trial Court or in the appellate Court after filing of the appeal by plaintiff-landlord. (n) It is submitted by Mr. Sood, learned advocate that it appears that in appeal proceedings also, by passing order below Exh.12, the Hon’ble District Judge ordered the applicant/ tenant to deposit the amount of rent for the period from 01.04.1991 to 30.06.1993 at rate of Rs.125/- per month within six weeks from the date of order. The applicant/tenant has not shown compliance of this order also due upto 14.01.1984 i.e. on passing of decree in previous suit No.38 of 82 on 24.01.1984 Exh.30 and tendered the said amount of rent to the plaintiff-landlord to fulfill his demand for arrears of rent as made in suit notice Exh.27. (o) It is submitted by Mr. Sood, learned advocate that after passing decree in previous suit No.38 of 82 which is produced at Exh.30, the dispute regarding the standard rent between the parties stood settled. In view thereof, on date of issuance of notice Exh.27, there was no dispute of standard rent, as the dispute of standard rent is already settled in previous suit. Therefore, when dispute to comply with the suit notice demanding arrears of rent, the defendant-tenant incurs the liability to eviction under section 12(3)(a) of the Bombay Rent Act. (p) It is submitted by Mr. Sood, learned advocate that the applicant/tenant having not made payment of arrears of rent within one month of suit notice Exh.27, he has incurred the liability to eviction. In view of decision in case of Maganlal V/s. Chandrakant, 1969(10) G.L.R. 175, the failure of the applicant/tenant to deduct the rent or to take appropriate steps to recover back excess payment of rent to the landlord within six months as per the provisions of section 20 of Bombay Rent Act and his refusal to pay arrears of rent as demanded by landlord in suit notice Exh.27; amounts to neglect to pay rent by the applicant/tenant. Therefore, in this case the decree for eviction against the applicant/tenant ought to have been passed by the learned Trial Judge against the applicant/tenant and in favour of respondent/landlord. (q) Mr. Therefore, in this case the decree for eviction against the applicant/tenant ought to have been passed by the learned Trial Judge against the applicant/tenant and in favour of respondent/landlord. (q) Mr. Sood, learned advocate relied upon the decision of the Hon’ble Supreme Court in Bhoja versus Rameshwar Agarwala, reported in 1993 Lawsuit(SC) 217. Mr. Sood, learned advocate further relied upon the decision in the case of Budhwanti versus Gulab Chand Prasad, reported in 1978 Lawsuit(SC) 293. 5. At this stage, it is apposite to refer to Section 12(3)(a), 12(3)(b), 13(1)(a) and 20 of the Bombay Rent Act, 1947, which read as under: “12(3)(a) - Where the rent is payble by the month and there is no dispute regarding the amount of standard rent or permitted increases, if such rent or increases, are in arrears for a period of six months or more and the tenant neglects to make payment thereof until the expiration of the period of one month after notice referred to in sub-section (2), the Court may pass a decree for eviction in any such suit for recovery of possession. (b) In any other case, no decree for eviction shall be passed in any such suit if, on the first day of hearing of the suit or on or before such other date as the Court may fix, the tenant pays or tenders in Court the standard rent and permitted increases then due 75[and thereafter, - (i) continues to pay or tender in Court such rent and permitted increases till the suit is finally decided; and (ii) pays costs of the suit,] as directed by the Court. 13. When landlord may recover possession.– (1) Notwithstanding anything contained in this Act [but subject to the provisions of section 15], a landlord shall be entitled to recover possession of any premises if the Court is satisfied- (a) that, the tenant has committed any act contrary to the provisons of clause (o) of section 108 of the Transfer of Property Act, 1882; 20. Any amount paid on account of rent after the date of the coming into operation of this Act shall, except in so far as payment thereof is in accordance with the provisions of this Act, be recoverable by the tenant from the landlord to whom it was paid or on whose behalf it was received or from his legal representative at anytime within a period of six months from the date of payment and may, without prejudice to any other remedy for recovery, be deducted by such tenant from any rent payable by him to such landlord. 5.1 It is also apposite to refer to Section 115 of the Code of Civil Procedure, 1908, which reads as under: “115. Revision.- (1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears- (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit: [Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings.] [2] The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto. [3] [A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the High Court.] Explanation .-In this section, the expression, "any case which has been decided" includes any order made, or any order deciding an issue, in the course of a suit or other proceeding.]” 5.1.1 It is apposite to refer to the ratio as laid down in case of Patel Valmik Himatlal & Ors. vs. Patel Mohanlal Muljibhai, reported in (1998) 7 SCC 383 more particularly, paragraph 6 wherein, it is held that the revisional powers can be exercised only to correct the errors which make the decision contrary to the law or which errors go to the root of the decision but it does not vest the High Court with the power to rehear the matter and re-appreciate the evidence. Mere fact that a different view is possible on re-appreciation of the evidence, cannot be a ground for exercising the revisional jurisdiction. 5.2 It is further apposite to refer to the ratio as laid down in the decision of Maganlal vs. Chandrakant reported in 1969(10) G.L.R. 175. Paragraphs 2, 6, 7, 8, 9, 10, 11 and 12 of the said decision read as under: “2. On September 5, 1955 the plaintiff served a notice upon the defendant demanding payment of arrears of rent and asking him to vacate the premises on the expiry of the month of October next. On December 26, 1955 the plaintiff instituted Suit No. 5092 of 1955 claiming possession on the ground of non-payment of rent and sub-letting and also claiming arrears of rent and mesne profits. The defendant filed his written statement on May 1, 1956 asking for fixation of the standard rent at Rs. 125/- per month, denying the sub-letting and alleging that the plaintiff had recovered more than the rent legitimately due to him. On March 14, 1957 he filed Suit No. 34 of 1957 against the plaintiff claiming refund of Rs. 15,224/- realised in execution of the void decree. The first date of the hearing of Suit No. 5092 of 1955 was December 26, 1957. On June 19, 1958 the Trial Court decreed the suit and directed the defendant to give possession of the premises and to pay Rs. 10,750/- on account of arrears of rent and mesne profits at the rate of Rs. 500/- per month from the date of the suit. The Trial Court held that the defendant sub-let the premises, that having withdrawn his application for fixation of the standard rent it was not open to him to ask for fixation of the standard rent, that if the matter were still open the standard rent would be Rs. 125/- per month, that a sum of Rs. The Trial Court held that the defendant sub-let the premises, that having withdrawn his application for fixation of the standard rent it was not open to him to ask for fixation of the standard rent, that if the matter were still open the standard rent would be Rs. 125/- per month, that a sum of Rs. 14,169/2/- was realised from the defendant in execution of the award decree, that the defendant was liable to pay rent at Rs. 300/- per month, that the rent was in arrear and that the notice to quit dated September 5, 1955 was valid. The defendant filed an appeal against this decree. During the pendency of the appeal the plaintiff recovered the sum of Rs. 10,750/- decreed by the trial Court. The Assistant Judge, Ahmedabad allowed the appeal, set aside the decree of the Trial Court and directed the plaintiff to render an account of the overpayments made to him. He held that the defendant did not sub-let the premises, that the standard rent was Rs. 125/- per month, that it was open to the defendant to ask for fixation of standard rent, that in execution of the award decree since 1950 the plaintiff recovered Rs. 14,169/2/- before the institution of the suit and Rs. 10,750/- during the pendency of the appeal and that taking into account all the recoveries the rent was not in arrear. The plaintiff filed a revision application against this decree. On November 20, 1962 the High Court allowed the revision application, set aside the decree of the Assistant Judge, restored the decree for eviction passed by the Trial Court and directed the defendant to pay mesne profits at Rs. 125/- per month from the date of the suit until recovery of possession. The High Court accepted the findings of the court below that there was no sub-letting of the premises, that the standard rent was Rs. 125/per month, that it was open to the defendant to ask for fixation of the standard rent and that Rs. 14,160/2/- was recovered from him in execution of the award decree before the institution of the suit. 125/per month, that it was open to the defendant to ask for fixation of the standard rent and that Rs. 14,160/2/- was recovered from him in execution of the award decree before the institution of the suit. The High Court held that the rent was in arrear, that the defendant was not ready and willing to adjust the overpayment against the rent falling due, that the amount recovered from the defendant was less than the standard rent due from him and the cost of the suit and that he was not entitled to the protection of sees. 12(1) and 12(3) (b) of the Bombay Rents, Hotel and Lodging House Rents Control Act, 1947 (Bombay Act No. LVII of 1947). The High Court refused to allow the defendant to raise a new contention, viz., that there was no valid notice under sec. 12(2) of the Act. The defendant filed this appeal after obtaining special leave from this Court. 6. Thus upto August 4, 1954 the defendant paid Rs. 14,169/2/on account of rent due upto that date at Rs. 300/- per month. The payments were in excess of the standard rent. He did not pay rent falling due after August 4, 1954. The question is whether the rent was in arrear or whether it should be treated as paid by adjustment or deduction of the over payments.. The right of a tenant to recover the over-paid rent is regulated by sec.2C That section reads :- "Any amount paid on account of rent after the date of the coming into operation of this Act shall, except in so far as payment thereof is in accordance with the provisions of this Act, be recoverable by the tenant from the landlord to whom it was paid or on whose behalf it was received or from his legal representative at any time within a period of six months from the date of payment and may, without prejudice to any other remedy for recovery, be deducted by such tenant from any rent payable by him to such landlord." 7. The section gives 'the tenant a general right of recovery of the overpaid rent within six months from the date of payment. Without prejudice to any other mode of recovery, he may deduct the overpayment from any rent payable by him to the landlord. Deduction is one mode of recovery. The section gives 'the tenant a general right of recovery of the overpaid rent within six months from the date of payment. Without prejudice to any other mode of recovery, he may deduct the overpayment from any rent payable by him to the landlord. Deduction is one mode of recovery. If the amount is incapable of recovery because of the bar of limitation, it cannot be recovered by deduction. In other words, the right of recovery by deduction is barred at the same time as the right of recovery by suit. If the tenant seeks recovery of the overpaid amount he must bring the suit or make the deduction within six months. 8. In Karamesy Kanji v. Velji Virji the learned Chief Justice of the Bombay High Court repelled the tenant's contention that for deduction of rent no period of limitation was provided by sec. 20. He observed- "It seems to me clear on a plain and natural construction of the section itself 'that if a tenant could not recover any excess amount paid by him beyond six months from the date of payment and if such amounts became irrecoverable, it is difficult to understand how a tenant could deduct what he could not recover and what was irrecoverable in law. The same view of the law has been taken in a parallel piece of legislation in England in Bayley v. Walker(1). I see no reason to take a view different from that taken by the appellate court that 'the interpretation put by the English Court on a similar provision of law is the correct interpretation." In Bayley v. Walker, 1925 (1) K.B. 447, (supra) the tenant on discovering that he had overpaid considerable sums in excess of the standard rent stopped payment of rent retaining the amounts as they fell due by way of deduction under the provisions of s. 14, sub-sec. 1, of the Increase of Rent and Mortgage Interest (Restriction) Act, 1920. He continued to deduct his rent after expiry of the period of limitation prescribed by see. 8, sub-sec. 2 of the Rent and Mortgage Interest Restrictions Act, 1923. The landlord contended that the tenant had no right to so continue to deduct and that consequently his rent was in arrear and on that ground brought an action for possession. The question was whether the rent was in arrear or not. 8, sub-sec. 2 of the Rent and Mortgage Interest Restrictions Act, 1923. The landlord contended that the tenant had no right to so continue to deduct and that consequently his rent was in arrear and on that ground brought an action for possession. The question was whether the rent was in arrear or not. The matter turned on the construction of s. 14 of the Act of 1920, and see. 8 of the Act of 1923. Section 14, sub- section 1 gave the tenant a general right of recovery of overpaid rent and the amount recoverable might without prejudice to any other mode of recovery be deducted by the tenant from any rent payable by him. Section 8 sub-sec. 2 provided that any sum which under sub-sec. 1 of sec. 14 of the principal Act (of 1920) is recoverable by the tenant...... shall be recoverable at any time within six months from the date of payment, but not afterwards or in the case of a payment made before the passing of this Act, at any time within six months from the passing of this Act but not afterwards." Salter, J. held that the period of limitation prescribed by sec. 8 of the Act of 1923 applied to recovery by deduction as well as recovery by action. As the,, amount was incapable of recovery by action, it could not be recovered by deduction. The rent was therefore in arrear and the landlord was entitled to recover possession on that ground. In Sohrab Tavaria v. Jafferali a Division Bench of the Bombay High Court approved of these decisions. 9. Now the right of recovery of the excess rent paid before August 4, 1954 became barred on and after February 4, 1955. Within that period the defendant took no steps for recovery of the amount by filing a suit or making a deduction. As the claim for recovery of the amount became barred after February 4, 1955, he could not thereafter deduct it from the rent falling due. As a matter of fact, he did not deduct it from rent at any time. Instead of making any deduction he filed a suit for its recovery. The over payments cannot now be deducted from or adjusted against the rent falling due since August 4, 1954. It follows that the rent was in arrear. 10. As a matter of fact, he did not deduct it from rent at any time. Instead of making any deduction he filed a suit for its recovery. The over payments cannot now be deducted from or adjusted against the rent falling due since August 4, 1954. It follows that the rent was in arrear. 10. In these circumstances, the defendant could not claim protection of s. 12(1) of the Rent Act. During the pendency of the suit he did not pay the standard rent due from him from August 4, 1954 nor was he ready or willing to pay it. Instead of showing his readiness and willingness to pay the rent due he claimed that he was not liable to pay any amount at all.” 5.3 In case of Bhoja versus Rameshwar Agarwala, reported in 1993 Lawsuit(SC) 217, more particularly, paragraph 20 which reads as under: “….20. The Madras High Court in Nune Panduranga Pao V. Divva;a Gopala Pao, AIR 1952 Madras 827, while construing a somewhat similar provision contained in Section 7(2) of the Madrad Buildings (Lease and rent) Control Act held: “Under the express provisions of this section if the tenant has not paid o tendered the rent due by him within the time prescribed therein he is liable to be evicted. The section does not compel a landlord to adjust the excess amounts in his hands towards any arrears of rent if the said amounts were not paid by the tenant towards the rent of any particular month. It is true on the date when a tenant authorities the landlord to adjust the amount with him towards the rent of any particular month or months the amounts will be deemed to have been paid in that date towards rent. But, till that adjustment is made and the amount is do appropriated, any amount is excess of the rent due with landlord will only be payments made in suspense. That fact that such excess came into the hands of the landlord by reason of the Rent Controller’s order fixing the fair rent does not really affect the question. But, till that adjustment is made and the amount is do appropriated, any amount is excess of the rent due with landlord will only be payments made in suspense. That fact that such excess came into the hands of the landlord by reason of the Rent Controller’s order fixing the fair rent does not really affect the question. I am, therefore, of opinion that the amount not agreed to be adjusted to towards any rent of a particular month is not payment of rent within the meaning of S. 7(2) of the Act.” (Emphasis supplied) We are in broad agreement with the view of the Full Bench of the Patna High Court and the Madras High Court on the question of ‘automatic adjustment’ and hold that a tenant cannot save himself from the consequences of eviction under the Act on the ground of default in the payment of rent by claiming automatic adjustment of rent, even if illegal unless there is an agreement between the parties for such an adjustment. The tenant may also in a given case seek adjustment of the excess rent in the hands of the landlord for such an adjustment before filing of the suit or in response to the notice to quit and even in the written statement by way of set off within the period of limitation and by following the procedures for claiming such a set off, while resisting the claim for eviction on the ground of default in payment of arrears of rent but he cannot claim ‘automatic adjustment’. 21. Thus, in the fact and circumstances of this case, we find that the 1 st Appellate Court was fully justified in holding that the tenant could not get any automatic adjustment of the excess rent paid against the subsequent default and since the tenant had been found on admitted facts to be in default in the payment of rent his eviction was well merited. The judgment of the High Court dismissing the second appeal, directed against concurrent findings, in limine, does not call for any interference. This Appeal consequently fails and dismissed but without any order as to costs….” 5.4 In case of Budhwanti versus Gulab Chand Prasad, reported in 1978 Lawsuit(SC) 293, more particularly, paragraph 8 which read as under: “…8. Against the judgment of the Appellate Court the respondant herein prefferes a second appeal to the High Court. This Appeal consequently fails and dismissed but without any order as to costs….” 5.4 In case of Budhwanti versus Gulab Chand Prasad, reported in 1978 Lawsuit(SC) 293, more particularly, paragraph 8 which read as under: “…8. Against the judgment of the Appellate Court the respondant herein prefferes a second appeal to the High Court. As there was a conflict of decisions of different Benches of the High Court on the question whether tenants paying rent in excess if the areed rent would be affected by the rule if “in pari delicto” and cannot, therefore, seel adjustment of the excess payment towards arrears of rent to resist a suit for eviction for default in paymrnt of rent, the second appeal was referred to a Full Bench. The Full Bench, after elaborately considering the matter held that the rule of “in pari delicto” would squarely apply to tenants who pay enhanced rents in contravention of the terms of the Rent Restriction Acts and hence the appellants are guilty of pari delicto and cannot, therefore, seek adjustment of the excess payment made by them and seek avoidance of their eviction for default in paying the rent. The Full Bench further held that the finding if the Appellate Court in the question of the landlord’s bona fide requirement of the leased premises was vitiated on account of misreading of facts and misapplication of law and hence the Trial Court’s finding warranted restoration. The Full Bench, therefore, allowed the appeal and restored the decree of eviction passed by the Trial Court in both the grounds set out in the plaint. 5.5 Mr. Henil Shah, learned advocate appearing for the applicant/tenant relied on the judgment of the Hon’ble Supreme Court in the case of Dakaya Alias Dakaiah versus Anjani reported in 1995(0) AIJEL-SC 7166. Mr. Henil Shah, learned advocate relied on paragraphs 3 and 5 of the Judgment, which read as follows: “…..3. The respondent landlady made an application under Section 10 of the A.P. Buildings (Lease, Rent and Eviction) control Act, 1960 (herein referred to as the A.P. Rent Act) for eviction of the tenants appellant on the ground of willful default of payment of rent for the period September, 198 08.11.1988 amounting to Rs. 1125.00. There is no dispute in this case that the tenant failed to make payment within the stipulated period for the said months. 1125.00. There is no dispute in this case that the tenant failed to make payment within the stipulated period for the said months. It, however, appears to us that the landlady gave a notice to tenant on 08.12.1988 claiming payment for the said months of September, 198 08.11.1988. The landlady, however, demanded surrender of tenancy of the tenant within one week from the date of receipt of the notice dated 06.12.1988. The tenant initially sent a money order for a sum of Rs. 375.00 being the monthly rent on 07.12.1988 and such amount has been received by the landlady and accepted by her. Within five days thereafter, on 12.12.1988, the tenant sent a Bank draft for Rs. 1125.00 and it is an admitted position that such draft was received by the landlady before finding (filing) the suit for eviction. The said draft, however, has not been encashed by the landlady and the same has been deposited before the rent Controller in the eviction proceedings. The eviction petition was filed before the rent Controller on 19.12.1988….. 5. Mr. Dhruv Mehta, learned counsel appearing for the appellant, has drawn our attention to the decision of this Court in the case of S.Sundaram Pillai etc. V/s. V.R.Pattabiraman, (1952) 2 SCR 643 : AIR 1958 SC 582. In the said decision, the provisions of Section 10 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 was taken into consideration. It may be indicated here that Section 10 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 is pari materia similar to Section 10 of the A.P. Rent Act excepting that in Tamil Nadu Act an explanation has been added to the proviso to sub-sec. (2) of Section 10 of the Tamil Nadu Act. The said explanation provides that for the purpose if sub-sec. (2) of Section 10 of the Tamil Nadu Act, default to pay or tender rent shall be constructed as willful, if the default by the tenant in the payment or tender of rent continues after the issue of two months’ notice by the landlord claiming the rent. This Court in the aforesaid case of S.Sundaram Pillai has indicated that default per se cannot be constructed as willful and keeping in mind the beneficial purpose of the Rent Act to protect the eviction of the tenant. This Court in the aforesaid case of S.Sundaram Pillai has indicated that default per se cannot be constructed as willful and keeping in mind the beneficial purpose of the Rent Act to protect the eviction of the tenant. If the payment has been made before the institution of the suit, the cause of action for instituting of the suit will vanish. In the instant case, immediately on receipt of demand of payment of rent, the tenant initially sent a sum of Rs. 375.00 by money order and thereafter a bank draft for Rs.1125.00 covering the entire period of default from September, 198 08.11.1988 was sent to the landlady. It, therefore, appears to us that there was no occasion to proceed in the footing that there was a willful default for which an order for eviction of the tenant was to the passed. As the tenant had already sent the bank Draft covering the entire default, there was also no occasion for the Rent Controller to direct deposit of arrears within the stipulated period. In our view, the Rent Controller =, the first appellate Court, and the High Court have fails to appreciate the incidents of tendering the entire amount under default before the institution of the suit. As a result, the Court below have erroneously proceeded on the footing that there has been a willful default for which the landlady was entitled to a decree for eviction. 5.6 Mr. Henil Shah, learned advocate appearing for the applicant/tenant further relied on the judgment of this Hon’ble Court in the case of Sarabhai Jeshingbhai Choksy Versus Babulal@ Chandulal Lallubhai Darji reported in 1972(0) AIJEL- HC 210912, more particularly, paragraph 10 which reads as follows: “….10. If we look to the aforesaid meaning of the word neglect it appears that the word neglects has been advisably used by the Legislature in sec. 12(3)(a) of the Act. This was done because b amending original sec. 12(3) of the Act the Legislature wanted to take away the right of the tenant to pay up arrears of rent at the appellate stage and prevent passing of a decree for eviction which existed before and instead give an absolute right to the landlord to recover possession provided the contingency contemplated by sec. 12(3)(a) was in existence. 12(3) of the Act the Legislature wanted to take away the right of the tenant to pay up arrears of rent at the appellate stage and prevent passing of a decree for eviction which existed before and instead give an absolute right to the landlord to recover possession provided the contingency contemplated by sec. 12(3)(a) was in existence. In order therefore to see that the tenants who by some misfortune became disabled from tendering the amount of rent in arrears to the landlord do not suffer these words have been used in contradiction with non-payment. There was nothing easier for the Legislature if a mere non-payment of rent was considered sufficient to vest an absolute right in the landlord to recover possession under sec. 12(3)(a) to make a provision by using a phases like does not pay instead of neglects to make payment. The cases where tenants by some misfortune become disable from tendering the amount of rent in arrears within a period of one month after the receipt of the notice under sec. 12(2) can well be conceived and the illustration given by Mr. Majmudar which has been referred to in the earlier part of this judgement id one of those cases; and we will now turn to the present case. In the present case the defendant was in jail not only on the date the notice was tendered for service but also on the date of filing his brother who had come to see him in the jail to pay the rent in arrears to the landlord. The brother however sent a money order of five months’ rent only instead of seven months’ rent. This act of the brother was not within the control of the defendant. In this state of fact can it be said that there was want of reasonable case or omission to take such step as a reasonable man would take as contemplated by lord Russell of Killowan C.J. in the queen V/s senior (supra) - Or to put it differently can it be said that there was designed refusal or unwillingness. On the part of the defendant to perform this duty to pay up the arrears as mentioned in Black’s Law Dictionary-…” 6. On the part of the defendant to perform this duty to pay up the arrears as mentioned in Black’s Law Dictionary-…” 6. Having heard the learned counsels at length and after considering the judgments cited by the learned counsels, it is borne out from the record that the applicant/tenant has not deducted or adjusted the excess payment within six months from 24.01.1984. Further, the respondent/plaintiff did not make any such deductions or adjustment of excess payment towards the rent falling in arrears within this period of six months. The contention raised by the advocate for the applicant/tenant that the respondent/plaintiff-landlord has withdrawn the said amount of Rs.5,950/- deposited by him in previous suit No.38/82 is without any basis and except the bare words of the applicant/tenant, there is no positive and conclusive evidence regarding withdrawal of entire amount of Rs.5,950/- by the respondent/plaintiff-landlord. The applicant/tenant would have produced the evidence to show that the plaintiff-landlord has withdrawn the entire amount of Rs.5,950/- deposited by him in previous suit No.38/82 by producing the record of payment made by the Court, but he has not done so. 6.1 Also, the respondent/plaintiff-landlord in his deposition Exh.35 denied that rent at rate of Rs.125/- from 14.01.1981 to 26.01.1985 calculating to Rs.5,950/- deposited in Court was withdrawn by plaintiff. So the respondent/plaintiff-landlord denies to have withdrawn the entire amount. When the evidence of respondent/plaintiff-landlord is accepted that he has not withdrawn the entire amount of Rs.5,950/- from the Court deposited by the applicant/tenant and when respondent/ plaintiff-landlord demands rent in suit notice Exh.27, rent being due from 14.01.1984 to 13.12.1984, it cannot be said that the respondent plaintiff-landlord has withdrawn the rent from the Court and appropriated it towards the arrears of rent upto 13- 01-1984. The applicant/tenant having failed to inform the plaintiff to appropriate the rent for subsequent months of rent having fallen due form the amount. If the plaintiff had not withdrawn that amount from the Court, the applicant/tenant ought to have withdrawn the amount from the Court and tendered the same amount to the landlord as and when the rent was due and payable or he would have obtained the receipt from the landlord acknowledging the receipt of rent in advance for the subsequent months, but it is not done so in the facts of the present case. 6.2 From the record it is also revealed that the applicant/tenant in his deposition below Exh.32 admitted in cross-examination that rent is in arrears from 14.01.1984 and he, in present suit did not deposit the amount as per order of the Court. In the facts of the present case, the applicant/tenant having not made payment of arrears of rent within one months of the suit notice below Exh.27 has incurred liability to eviction. Also, the applicant/tenant has chosen not to recover the excess rent from the landlord within 6 months as provided under Section 20 of the Act. In view thereof, in line of the position of law, as referred above in case of Maganlal vs. Chandrakant reported in 1969(10) G.L.R. 175, the failure of the applicant/tenant to deduct the rent or to take appropriate steps to recover back excess payment of rent to the landlord within six months as per the provisions of section 20 of Bombay Rent Act. 6.3 Further, the Trial Court had passed the order ordering the applicant/tenant to deposit the rent as per ordered to deposit rent from 14.12.1984 to 13.09.1990 at rate of Rs.125/- falling in arrears at Rs.10,425/- on or before 28.10.1990 and also directed the applicant/tenant to deposit rent at Rs.125/- per month from 14.09.1990 as and when rent falls due till disposal of the suit. On perusal of the record, in absence of evidence of compliance, it emerges that the applicant/tenant has failed to comply with the directions of the competent Court. 7. It appears from the record that the applicant/tenant has deposited only Rs.1400/- on 24.04.1986 as per receipt Exh.46 and sent Rs.116/- by money order on 08.07.1985 vide money order coupon Exh.47 which is after the filing of the suit; the same is admittedly beyond 6 months and therefore, the applicant/tenant was in arrears of rent at the time of filing of the suit. The applicant/tenant has not shown payment or deposit of rent over and above the said amount stated above in the Court in present suit in trial Court or in the appellate Court after fling of the appeal by plaintiff-landlord. 8. The judgments relied upon by Mr. The applicant/tenant has not shown payment or deposit of rent over and above the said amount stated above in the Court in present suit in trial Court or in the appellate Court after fling of the appeal by plaintiff-landlord. 8. The judgments relied upon by Mr. Henil Shah, learned advocate for the applicant/tenant would be of no avail to the applicant as in the said cases the amount of arrears of rent were deposited by the tenant before the filing of the suit and in the other suit, the applicant/tenant was in jail when the notice was served. However, the brother of the applicant/tenant deposited rent for 5 months instead of 7 month, over which the tenant had no control. In the facts of the present case, the money order dated 08.07.1985 at Exh.47 is a money order sent by the applicant/tenant after a period of 6 months of filing of the suit. 9. It further appears that in appeal proceedings also, by passing order below Exh.12, the learned District Judge ordered the applicant/tenant to deposit the amount of rent for the period from 01.04.1991 to 30.06.1993 at rate of Rs.125/- per month within six weeks from the date of order. The applicant/tenant has not shown compliance of this order also due upto 14.01.1984 i.e. on passing of decree in previous suit No.38/82 on 24.01.1984 Exh.30 and tendered the said amount of rent to the respondent/plaintiff-landlord to fulfill his demand for arrears of rent as made in suit notice Exh.27. In view thereof, on date of issuance of notice Exh.27, there was no dispute of standard rent, as the dispute of standard rent is already settled in previous suit. Therefore, when dispute of comply with the suit notice demanding arrears of rent, the defendant/tenant- applicant herein incurs the liability to eviction under section 12(3)(a) of the Bombay Rent Act. The applicant/tenant having not made payment of arrears of rent within one month of suit notice Exh.27, he has incurred the liability to eviction. 10. Further the contention raised by the Mr. Sood, learned advocate relying on the judgment of the Hon’ble Apex court in the case of Bhoja versus Rameshwar Agarwala reported in 1993 (2) SCC 443 , requires consideration wherein, it is held that the tenant could not get any automatic adjustment of excess rent paid against the subsequent default. 10. Further the contention raised by the Mr. Sood, learned advocate relying on the judgment of the Hon’ble Apex court in the case of Bhoja versus Rameshwar Agarwala reported in 1993 (2) SCC 443 , requires consideration wherein, it is held that the tenant could not get any automatic adjustment of excess rent paid against the subsequent default. Para 20 of the said judgment clearly holds that there cannot be an automatic adjustment of arrears of rent and the tenant has to make specific request for the adjustment of the arrears of the rent to the landlord which has to be accepted by the landlord before the filing of the suit. 11. The present Civil Revision Application is filed under the provisions of Section 115 of the Civil procedure code wherein, this court has a limited jurisdiction and the appellate Court in the present case has not exercised its jurisdiction not vested in it by law or failed to exercise a jurisdiction so vested or acted in exercise of its jurisdiction illegally or with material irregularity. 12. For the foregoing reasons, no interference is called for in the impugned judgment and order dated 30.04.1998 passed by the Joint District Judge, Rajkot in Regular Civil Appeal No.31 of 1991. Accordingly, the present Civil Revision Application stands dismissed.