- (1.)BY this petition filed under Article 227 of the Constitution of India, the petitioner challenges the order dated 21st June 1986 passed by the IInd Additional District Judge, Nasik in civil appeal No.345 of 1982. That appeal was filed by the petitioner challenging the judgment and decree passed by the IIIrd Joint Civil Judge, Junior Division, Nasik dated 2nd August 1982 in regular civil suit No.89 of 1976. That civil suit was filed by the respondents claiming that they are owners of the property viz. municipal house No.1260, C.T. Nos.1973, situated at Nasik., near Trimbak Darwaja and that the petitioner is the tenant of one room on the floor of the said building. The landlord sought decree of eviction against the tenant on the ground that the landlord needs the suit premises for bonafide occupation and also that the tenant is not ready and willing to pay the rent. The Trial Court found against the landlord the ground of bonafide need, however the Trial Court found in favour of landlord the ground of default committed by the tenant in payment of rent. In the appeal filed by the tenant, the Appellate Court has confirmed the finding recorded by the Trial Court on the ground of default and dismissed the appeal. Therefore in this petition filed by the tenant, the findings recorded by both the Courts below on the ground of default have been challenged by the tenant. It is to be seen here that the decree has been passed against the petitioner under Section 12(3)(b) of the act. The facts necessary for deciding the controversy are the notice dated 1st December 1975 was issued under sub-section (2) of Section 12 of the Bombay Rent Act by the landlord to the tenant demanding the arrears of rent from 14th June 1975. By the date on which the notice was issued, the Courts have found that rent for a period of five months was only due and therefore the case fell under Section 12(3)(b) of Act. In the present case, the courts have found that on 2nd July 1979, issues were settled, therefore, that will be the first date of hearing. The learned counsel appearing for the petitioner submits that on 19th January 1977, an amount of Rs.200/- was deposited which represented rent from June 1975 to March 1978. Then on 2nd February 1979 , an amount of Rs.65/- was deposited that will cover period upto February 1979 and on 2nd February 1979, an amount of Rs.50/- was deposited which would cover the period upto October 1979. As the first date of hearing was 2nd July 1979, it is obvious that on the first date of hearing, the tenant had cleared the arrears of rent. So far as the subsequent period is concerned, perusal of the chart shows that the tenant was always depositing amounts in advance. Therefore, the learned counsel appearing for the petitioner urged that the tenant had complied with requirement of section 12(3)(b) of the Act. The learned counsel submitted that it appears that the courts have not considered the deposit made on 2nd February 1979 i.e. Rs. 50/- and therefore, the courts have reached a wrong conclusion. The learned Counsel appearing for the landlord also submitted that if the payment of Rs.50/- made on 2nd February 1979 is taken into consideration, then it has to be said that the tenant has complied with the requirement of Section 12(3)(b) of the Act. Another question that is required to be considered is whether the deposit of Rs.200/- is to be taken into consideration or whether an amount of Rs.158.50 only is to be taken into consideration. It appears that the tenant on 19th January 1977 deposited an amount of Rs.200/- and filed the pursis that he has deposited Rs.158.50 towards arrears of rent and Rs.41.50 towards the cost of the suit. It is nobody's case that any amount of cost was directed to be deposited on 19th January 1977 nor is it anybody's case that the tenant was liable to deposit Rs.41.50 towards the cost. Therefore, in my opinion, the entire amount of Rs.200/- has to be adjusted towards the payment of arrears of rent. In any case, it has to be seen here that under sub-section (1) of section 12 of the Act, a decree of eviction cannot be passed against the tenant till he is ready and willing to pay the rent. The tenant by depositing an amount of Rs.200/- on 19th January 1997 has showed his willingness to deposit the amount of rent. By mistake, in the pursis he mentioned that Rs.41.50 are to be appropriated towards the cost of the suit. That was obviously a mistake and therefore in my opinion , no decree of eviction could have been passed against the tenant.
(2.)IN the result therefore, the petition succeeds and is allowed, the orders passed by both the Courts below impugned in the petition are quashed and set side. No order as to costs.