N.H. Bhatt, J.
1. This is a revision application filed by the original defendants ofthe H. R. P. Civil Suit No. 1264 of 1975dismissed in their favour by the trialJudge, namely the Judge of the SmallCause Court, whose judgment came tobe set at naught by the appellate Benchof that Court in the respondent-landlord'sRegular Civil Appeal No. 113 of 1979.Being aggrieved by the said decree ofeviction, the original defendants havefiled this revision application under Section 29 (2) of the Bombay Rent Act.
2. A few facts as found by the appellate Bench are required to be notedwith precision. The tenants were in arrears of rent from 1-11-1969, and despitethe notice Ex. 32 dated 14-9-1972, received by the tenants on 18-9-1972, they hadfailed to pay or tender the arrears ofrent within one month from the date ofthe receipt of the notice, as held by theAppellate Bench contrary to what wasfound by the learned trial Judge. It isfurther found by the Appellate Benchthat no dispute about standard rent wasraised within one month of the receiptof the notice, but as the taxes weredemanded by the notice of demandEx. 30, the Appellate Bench heldthat the case would not fall under Section 12 (3) (a) of the Bombay Rent Act.The appellate. Bench further found thatas there was no regular payment ofrent as per the rate demanded, the protection given by Section 12 (3) (b) ofthe Rent Act was not available to thetenants and the result was that evictiondecree followed.
3. Now it is to be noted with pertinence that the dispute about standard rent was raised by the tenants in the written statement. It is again a finding that the standard rent came to be fixed for the first time at the rate of Rs. 8/- plus Rs. 3/- by way of permitted increase per month, by the learned trial Judge at the time of the final conclusion. It is again an admitted position that in the memo of appeal, the landlords had raised a dispute against the fixation of Rs. 8/- as standard rent, presumably because according to them the standard rent should have been fixed at Rs. 10/- plus Rs. 3/- by way of permitted increase, but it appears that at the time the matter was heard before the appellate Bench, this point was not pressed.
4. Mr. A. L. Shah, the learned Advocate for the petitioners-tenants urged only one point before me, namely, the tenants were not in a position to know exactly at what rate they were required to pay up the arrears and hence, as they were not specifically informed by a judicial decision of the rate of deposit, any short-fall at some stage cannot go to their detriment and they cannot be said to have forfeited the benign benefit of Section 12 (3) (b) of the Bombay Rent Act. There are two judgments of this Court, one delivered by My Brother Majmudar, J., in the case of Champaben v. Gopinath Gangadhar, 21 Guj LR 709 : (AIR 1980 NOC 18) and one unreported judgment of mine in the case of Naranbhai Natha-bhai Koli v. Modhia Panalal Maganlal in the Civil Revn. Appln. No. 1635 of 1980 decided by me on 9th April 1982. In the case decided by me the case was falling under Section 12 (3) (b) of the Bombay Rent Act and for the technical purpose of Section 12 (3) (a) it could be said that there was no dispute about standard rent in so far as it having been not raised within one month from the date of the notice, as is the case in this revision application also. I, however, held and so, has been held by My Brother Majmudar, J. in the case of Champaben, that in order to avail himself of the benefit of Section 12 (3) (b) of the Rent Act, the tenant must know at what rate he has to go on paying the rent and if there was on hand of the Trial Court as well as the Appellate Court, the question, of deciding what the standard rent is, the tenant can be said to be technically not able to deposit the rent fully, even though he may be willing to do so. I and my brother Majmudar, J. have placed our reliance on the earlier judgment of the Division Bench of this Court in the case of Nanji Pancha v. Daulal Naraindas, (1970) 11 Guj LR 285. In view of these judgments, the tenants' revision application is required to be allowed.
5. Mr. Shah, however, invited my attention to three judgments, namely 5 Guj LR 55 : (AIR 1964 SC 1341) in the case of Vora Abbasbhai Alimahomed v. Haji Gulamnabi Haji Safibhai, AIR 1980 SC 954, in the case of Mranalini B. Shah v. Bapalal Mohanlal Shah and the Full Bench decision of this Court to which I was a party, in the case of Ramniklal Dwarkadas Modi v. Mohanlal Laxmichand, 18 Guj LR 32 : (AIR 1977 Guj 15). In my estimation the ratio decidendi of all these three cases is quite different from the point which I am required to decide in this revision application. In Ramniklal's case what was decided was that as to when a case would fall within the purview of Section 12 (3) (a) of the Act, that is, three circumstances are envisaged in that judgment. In the Supreme Court's judgment what has been explained, is the meaning of the term ''regularly' appearing in Section 12 (3) (b) of the Act. The earlier judgment in the case of Vora Abbasbhai Alimahomed. (5 Guj LR 55) : (AIR 1964 SC 1341) also does not deal with the question which has been viewed by me and my Brother Majmudar, J. in the aforesaid cases. There is no question of regular deposit during the appeal, because during the appeal also, the dispute about the standard rent was agitated before the learned Judges but was not pressed at hearing as no specific point for determination has been raised by the learned Judges.
6. The result is that the revision application is allowed by setting aside theappellate judgment and restoring thatof the trial Judge. In the facts and circumstances of the ease I direct the parties to bear their own costs throughout.