( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 692 OF 2002 Prabhakar s/o Gajanan Shere, R/o Naikwadpura, Tq. Sangamner, District Ahmednagar. PETITIONER VERSUS Smt. Kalawati Pardeshi, R/o c/o Keru Dhondiba Pawar, Delhi Naka, Sangamner, District Ahmednagar. RESPONDENTS ..... Mr. L.V. Sangeet, advocate, holding for Mr. V.J. Dixit, Senior Counsel, for the petitioner. Mr. Shrikant B. Reddy (Madde), advocate holding for Mr. M.Y. Deshmukh, advocate for the respondent. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 6th July, 2009] ORAL JUDGEMENT : 1. By this petition, the petitioner challenges judgement and order dated 18-08-1993, rendered by the learned IInd Joint Civil Judge (J.D.), Sangamner, thereby dismissing the suit (R.C.S. No. 39/1987) filed ( 2 ) by the petitioner, alongwith judgement and order, rendered by the learned Additional District Judge, Sangamner, on 22-03-2001 in appeal (R.C.A. No. 346/2000) (old R.C.A. No. 381/1993), confirming decree for dismissal of the suit. 2. The petitioner filed suit for eviction under section 12 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (for short, “the Bombay Rent Act”), alleging that the respondent committed defaults in payment of the agreed rent alongwith permitted increases. The petitioner is landlord and the respondent is tenant in respect of two (2) rooms’s block out of house property bearing city survey No. 513, situated at Sangamner. The agreed rent was Rs.10/- per month besides the permitted increases. The case of the petitioner before the trial Court was that the respondent paid rent till 31-08-1984 and thereafter, committed defaults in payment of the rent. He has not paid the permitted increases and other taxes. The property tax was Rs. 301/- per annum at the time of agreement of rent, but subsequently, it was increased to Rs. 501/- per annum. ( 3 ) Thus, the respondent was required to pay increased rent of Rs. 10 + Rs. 7 = Rs. 17/- per month. She refused to pay the increased rent inspite of repeated demands. So, he terminated her tenancy by issuing notice dated 26-09-1986. Though demanded in the said notice, yet, she did not pay the rent. 3. The respondent resisted claim on various grounds. She denied liability to pay the enhanced rent on account of increase in the municipal taxes. She contended that the agreed rent was offered by her to the petitioner on 01-09-1984, but he refused to accept the same. She contended that the demand for rent was improper and, therefore, she could not be regarded as defaulter. 4. The trial Court dismissed the suit and the decree has been confirmed by the first Appellate Court. The trial Court came to the conclusion that after filing of the written statement (Exh-9), the respondent filed an application dated 26-04-1989 and deposited the demanded rent alongwith the interest at the rate of 9% ( 4 ) p.a. On 05-12-1989 as per purshis (Exh-12-A). The trial Court, therefore, held that there was compliance of the amended provisions of section 12 (3) of the Bombay Rent Act. Consequently, the trial Court was pleased to dismiss the suit and the said decree is affirmed by the first Appellate Court. 5. Heard learned counsel for the parties. 6. At the outset, let it be noted that there is no scintilla of evidence to show that the respondent had offered to pay the rent arrears as alleged by her. The only question is whether the protection available under amended provision of Section 12 (3) could be made available to the respondent. There is no dispute about the fact that she deposited the rent arrears in the trial Court after filing of her written statement and much after filing of the suit. The amended provision, if is held applicable, then she may be entitled to seek umbrella of protection from eviction decree. Sub-section (3) of section 12, after the amendment by the Maharashtra Act No. 18 of 1987, reads as follows : ( 5 ) “12. (1) ***** (2) ***** (3) No decree for eviction shall be passed by the Court in any suit for recovery of possession on the ground of arrears of standard rent and permitted increases 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 and together with simple interest on the amount of arrears of such standard rent and permitted increases at the rate of nine percent, per annum; and thereafter continues to pay or tenders in Court regularly such standard rent and permitted increases till the suit is finally decided and also pays cost of the suit as directed by the Court.” 7. The amended provision came into effect on 01-10-1987. This Court in “Piroja M. Mehta v. Dr. Nambai Jamshedji Cama and others” (1988 Mh.L.J. 979), held that section 12 (3) of the Bombay Rent Act, 1947 as amended by Maharashtra Act No. 18 of 1987, is not retrospective but is prospective. Therefore, the protection under the ( 6 ) amended provision could not be availed by the respondent. There is no evidence on record to show that she paid the rent arrears within 30 days of first appearance in the Court. There is also no evidence to show that she paid the rent arrears within the statutory period after service of the demand notice. It is manifestly clear, therefore, that the respondent could not escape the liability and was a defaulter within the meaning of section 12. It appears that she was irregular in payment of the rent in the Appellate Court too. 8. Having regard to settled legal position and the fact that the stigma of defaults could not be removed by the respondent, the impugned judgements of both Courts are improper and liable to be interfered with because the amended provision of the law is erroneously applied, holding that it is prospective amendment. Needless to say, the respondent is liable to be evicted as a result of termination of tenancy on account of the willful defaults committed by her in payment of the rent. ( 7 ) 9. In the result, the writ petition is allowed. The impugned judgements are quashed. The suit is decreed and the respondent shall be evicted from the suit property, if not vacated, within period of four (4) months. No costs. [ V.R. KINGAONKAR ] JUDGE NPJ/WP692-02