Desai, J.:— The writ petitioners are the owners of a property called Nesbit Hall situated at Nesbit Road, Mazgaon, Bombay. The respondent is a tenant inducted in September 1960 under an express agreement of lease. In 1966 the landlords filed R.A.E & R. Suit No. 105/1002 of 1966 claiming from the tenant (respondent before me) possession of the suit premises on several grounds as stated in the plaint. These grounds are summarised in para 8 of the plaint. I will only indicate the four grounds urged before me in the Writ petition since the landlords who succeeded in the trial Court failed in the appeal.

2. Aggrieved by the decision of the Appellate Bench of the Small Causes Court allowing the tenant's appeal, the landlords (original trustees) have filed the writ petition.

3. The grounds on which eviction of the tenant was sought and the possession of the premises claimed are as under:—

(a) That the tenant had committed breaches of the terms and conditions of tenancy.

(b) That the tenant had erected a permanent structure in the suit premises in breach of the provisions of section 13(1)(b) of the Bombay Rent Act.

(c) That the defendant-tenant had committed nuisance.

(d) That the defendant-tenant was in arrears of rent for more than six months and had failed and neglected to pay the same inspite of a demand in that behalf.

4. Needless to say the averments in the plaint were traversed by the defendant in his written statement. Necessary evidence was led on various aspects of the matter before the trial Court and the trial Court upheld the landlord's contentions on the ground that the tenant had erected permanent construction and the landlords were accordingly entitled to evict the tenant from the portion demised to it.

5. As far as the ground of arrears of rent was concerned, it is the admitted position that the tenant had not paid up the arrears claimed within one month of receipt of the landlord's notice but had immediately deposited all the arrears in the Court after the filing of the suit. As far as this ground is concerned on the factual findings as found by the Court of Small Causes prima facie the case would seem to be governed by the Supreme Court decision in 1(Harbanslal Jagmohandas v. Prabhudas Shivlal), (1977) 1 SCC 575 : A.I.R 1976 S.C 2005. However, Mr. Tunara who appeared on behalf of the appellant-tenant before the Appellate. Bench submitted that the case was not covered by the provisions of section 12(3)(a) but by the provisions of section 12(3)(b) of the Rent Act and if it is so, the entire basis of the approach in Harbanslal's case and the subsequent decisions would not be applicable to the present case. It appears to be the admitted position that if section 12(3)(b) were to apply and not 12(3)(a) then the tenant had complied with the requirements of the said section as presently construed by the Courts.

6. The Appellate Court allowed the appeal of the tenant holding (a) that the so-called permanent construction, namely the wall could not be regarded as one and (b) that on the evidence led on the point and on the probabilities, the wall was likely to have been constructed by the landlords at or before the time of the commencement of the present tenancy. I propose to deal with the question of nuisance and permanent construction at the outset.

7. The claim of nuisance as alleged in the plaint was expressly dropped in the trial Court but an attempt was made by Mr. Dalvi to resurrect the same before me in view of the decision of the learned Single Judge of this Court in 2(Gulam Husain Mirza v. Laxmidas Premji), 1984 M.L.J 215. This is totally a new aspect of the matter which cannot be permitted to be raised after the plea on the point of nuisance was expressly dropped. The nuisance as now urged before me is different from what was pleaded and the contention seems to be that if the tenant trespasses upon or attempts to trespass upon or obstruct the landlord in enjoyment of any premises or part of premises or land other than the demised premises, the same would constitute nuisance and may entitle the landlord to a Decree for eviction. A similar plea seems to have been upheld by the learned Single Judge who decided Gulam Husain Mirza's case. In my opinion, it is not open to the writ petitioner to take up this plea and hence whatever observations I may make upon the approach and ultimate conclusion in Gulam Husain's case would be clearly obiter. However, I am impelled to observe that the concept of nuisance as envisaged in the said case appears to be contrary totally to the well settled ideas of regarding nuisance under the law of torts. Further, in section 13(1)(c) the nuisance or annoyance is to the “adjoining or neighbouring occupiers”. Various interesting questions arise. The landlord may fall within the requirements of the statutory provision if he himself is occupying the adjoining property or premises but not otherwise. Further the nuisance or conduct complained of must be of such a character that it may cause nuisance or annoyance in general or at least to more than one person and this view seems to be supported by the use of the plural in the provisions whilst adverting to “neighbours” or “occupiers”. It is, however, unnecessary to consider Gulam Hussain Mirza's case further in the present matter.

8. We now turn to the question of permanent structure. Under the Bombay Rent Act, it is for the landlord to establish that the tenant has, without the landlord's consent given in writing, erected on the premises any permanent structure. It is not necessary. In this matter to go into the interesting question which normally arises whether the structure complained of can or cannot be regarded as a permanent structure. The trial Court on the evidence mainly of the parties, since the two “independent” witnesses ware regarded as unsatisfactory, held that the wall was likely to have been constructed by the tenant and the Appellate Court came to a different conclusion. Mr. Dalvi has taken me through the relevant paragraphs of the two judgments. It is not possible to hold that the conclusion reached by the Appellate Court on the factum of construction is not a possible view and if that be so then the said conclusion does not, in my opinion, call for inter-ference in the writ Jurisdiction of the High Court, under Article 227 of the Constitution of India. Any fresh appraisal of evidence is not required or called for in the present case. Unless the conclusion is “perverse” as the expression is known to law or some statement or position taken which shocks or revolts the conscience of this Court this Court ought not to interfere. It is only the Appellate Bench, which is the superior Appellate Court (particularly when no further appeal is provided). For this Court to choose one factual conclusion over the other would be an impermissible extension of its superintendence jurisdiction. The power conferred on the High Court by the Constitution are indeed wide but are to be used sparingly and in deserving cases only. On this ground I must reject Mr. Dalvi's contention and hold that there is no warrant for interference with the decision of the Appellate Court on this point.

9. We now turn to the third plea, namely, that there was a breach of the term of tenancy. Mr. Dalvi drew my attention to the express term in the document under which the premises were demised by which term all the repairs were expressly agreed to be carried out by the tenant. It was his submission that in defiance of the express provision the tenant called upon the landlord to carry out certain repairs and when this was not done, carried them out but claimed reimbursement. The tenant finally withheld or sought to withhold two months' rent for these repairs.

10. The Appellate Bench of the Small Causes Court has dealt with this aspect of the matter holding that a mere demand or claim however untenable it may be and even assuming that it is in total defiance of the express obligation undertaken under the tenancy would not be tantamount to a beach of the terms of tenancy. Mr. Dalvi drew my attention to the decision of the Supreme Court in 3(Marwanji v. Union of India), (1979) 4 SCC 734 : A.I.R 1979 S.C 1309 where the tenant had allowed the premises to be wasted in breach of express obligation of repairs undertaken by them. An eviction decree followed. This decision is clearly distinguishable on facts and does not lay down that a mare assertion or requisition in defiance or of express contractual obligation would by itself amount to a breach of tenancy. However conduct violative of the term of tenancy of the nature indicated in Merwanji's case must certainly entitle the landlord to obtain an eviction decree against the tenant. To put it in other words if the tenant fails to repair the property demised to him or any portion and allows the same to be wasted or substantially damaged in violation of the express obligation undertaken by him under the lease agreement, then the landlord may be entitled to evict the tenant on this ground. However, the position would be different if the tenant carries out the repairs and then claims the costs of the same from the landlord which claim for re-imbursement may be untenable or unsupportable bearing in mind the express obligation incurred by the tenant under the lease agreement. Merwanji's case is good authority on the first point and has no application to the facts before us. On this ground also, the Writ Petition must fail.

11. We finally come to the fourth point on which the landlords failed in both the Courts. According to Mr. Dalvi, the trial Court was in error in applying the law as accepted by this Court prior to the decision of the Supreme Court in Harbanslal's case. When this error was sought to be rectified in the appeal Court, the appeal Court according to him held that the case did not fall within the four corners of section 12(3)(a) but was covered by section 12(3)(b). The argument of Mr. Tunara advanced before the appeal Court, admittedly for the first time, is dealt with by the Appeal Court in paragraphs 29 and 30 of the Appellate Court Judgment. It may be mentioned that Mr. Tunara had also urged that since the rent (under the lease) was payable in advance, it was not “payable by the month.” The lower Court, according to his submission before me, fell into an error in not accepting the submission. With respect to this argument. I am not inclined to accept the submission. I am in agreement with the view expressed by the Appellate Bench which was to the effect that the rent must be regarded as payable by the month irrespective of whether it was payable in advance or on the expiry of the month. The point may have some bearing in connection with the computation of the period of arrears but in the instant case, the arrears were admittedly due for more than six months at the time when the demand was made by the landlord.

12. The only relevant point which requires consideration is whether the Appellate Bench was right in holding that the case did not fall within the purview of section 12(3)(a) of the Rent Act and was therefore covered by section 12(3)(b) which latter provision was admittedly complied with by the tenant.

13. Neither in correspondence nor in the pleadings had the tenant urged that the claim for rent in the notice was made of the sum of Rs. 350/- being the monthly rent agreed at the time of the lease agreement and Rs. 9.50 being on account of the State education cuss. However, when this plea was urged by Mr. Tunara for the first time in the Appeal Court, the learned Advocate appearing for the landlords was called upon by the Bench to indicate the basis of this additional claim of Rs. 9-50. He stated before the Court that he was not in a position to make any statement. The landlords were in Bombay. The premises were in Bombay. The account books which have been produced in the trial Court for a particular period were all in Bombay. Hence there was ample opportunity for the landlords to have given instructions to their Advocate to indicate the basis of the additional claim. Even before me, Mr. Dalvi has not been able to tell me that the sum of Rs. 9.50 was on account of some permitted increase other than the State educational cess. On the other hand the Appellate Bench has referred to Chapter XIII from Namavati's book which is well recognised in this city as being fairly accurate. Mr. Dalvi contended that the landlords had been prejudiced by the argument being allowed to be urged for the first time in appeal. He submitted that it was incumbent on the tenant to have pleaded that the additional amount was for the State education case. Prejudice cannot be urgued in the air prejudice must be demonstrated and in the instant case it is clear that there was no prejudice to the landlords by the plea not being specifically taken in the pleadings. Opportunity was given to them to meet the point which was not availed of. We are, therefore, required to proceed on the footing that the claim of the landlords indicated in their notice consisted of Rs. 350/- being the agreed rent under the deed of lease granted in September 1960 and Rs. 9-50 being the claim for the State education cess.

14. The nature of the claim for such cess has been considered by this Court in two decisions. The first of these two decisions was that of the learned Single Judge in 4(Muktabai Gangadhar v. Muktabai laxman), 71 Bom. L.R 752. The education cess which the learned Single Judge was considering was tax levied and collected under the Maharashtra Education. (Cess) Act (Maharashtra Act No. XXVII of 1962). The learned Single Judge has on pp. 756-757 of the Report considered the provisions of sections 13, 14 and 15 of the said Act. He ultimately held, after considering these provisions, that the education cess payable under this Act is part of the rent within the meaning of that term as used in the Bombay Rent Act. It has to be noted that the learned Single Judge did not hold that this was something recoverable “as rent” or “deemed rent” but part of rent. The decision in Muktabai's case came to be considered by Jahagirdar, J., in the case of 5(Bablu v. Ladharam), 80 Bom. L.R 310. The facts of the case are interesting and may be referred to in some detail since a contention was made by Mr. Dalvi based on those facts. It would appear that in Bablu's case after the landlord's notice the tenant paid up the arrears of the agreed rent but failed to pay the arrears of the State education case that were due by him for a period of about 1 1/2 to 2 years. It was held by the learned Single Judge that the education cess which was recoverable by the landlord pursuant to the provision contained in the Maharashtra Education Cess Act, 1962 was obviously not a payment which was to be made monthly. The learned Single Judge was considering a case where the arrears due were only in respect of the State education cess and I was invited by Mr. Dalvi to hold that the observations at pp. 313 and 314 of the Report were restricted to such a case only i.e where the arrears claimed by the landlord were in respect of education cess only. In other words, his submission was that in the present case, on receipt of the notice by the landlord, the tenant ought to have paid off the arrears of rent at the rate of Rs. 350/- p.m and if he had done so then he would have been protected in respect of the balance claim of Rs. 9-50 (per month) by reason of the aforesaid decision in Bablu's case given by Jahagirdar, J.

15. The difficulty in accepting the position seems to be caused by the fact that Bal, J., in Muktabai's case did not hold that the cess was notional rent or deemed rent or recoverable as rent but held that it became part of the rent. If that be so, where the rent consists of a part or portion which is not payable monthly can it be said that the rent is payable by the month? If a part of the rent is not payable by the month then certainly the rent (the whole of it) is not payable by the month, and it would seem to make no difference that the part which is not payable monthly is very small or insignificant when contrasted with the other tent or the other permitted increases which may be payable-monthly. If any part of the rent is not payable monthly, then it has to be held that rent which must mean the entire rent is not payable by the month.

16. In my opinion, if section 12(3)(a) is to apply then the whole of the rent payable by the tenant must be payable by the month. The words are clear and admit of no other interpretation. In the view that I have taken I am strengthened by the observations in two Gujarat High Court decisions to which my attention was drawn by Mr. Tunara. The first of the decisions is in the case of 6(Dayalal Gangarem v. Bhimani Bhupat Rai), (1977) 18 Gujarat L.R 349. In the aforesaid case, the Division Bench of the Gujarat High Court was considering a question referred to it by the Single Judge. The question referred was as under:

“In the absence of a contract between the landlord and the tenant as regards payment of the education cess by the tenant, would the amount of education cess form part of the rent payable by the tenant to the landlord so as to enable the Court to decide a case governed by section 12 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the ‘Rent Act’) whether the said rent is payable by the month or otherwise?”

17. The Division Bench expressly held that the education cess would form part of the rent and that the Court would be constrained to hold that the rent was therefore not payable by the month and that therefore section 12(3)(a) would not be attracted. Muktabai's case has been referred to in the aoresaid decision. The Division Bench therefore, sent back the case to the learned Single Judge after expressing its opinion that the matter was covered by section 12(3)(b) of the Bombay Rent Act.

18. In another case decided by the Gujarat High Court, the rent payable was fixed originally at Rs. 16/- and it was subsequently enhanced to Rs. 17-50 on a Panchayat Tax being imposed. It was held by the Division Bench of the Gujarat High Court in 7(Jethalal Harjivandas v. Hasanand Tulsidas), (1977) 2 All India Rent Control Journal p. 42 that since the payment of the Panchayat tax was part of the rent and since the said tax was payable yearly provisions contained in section 12(3)(a) of the Rent Act would not be attracted. Thus the quantum of rent which is not payable by the month is unimportant and it would appear to be establised that if any part of the rent is not payable monthly then in the absence of any specific agreement between the landlord and the tenant in that behalf, the legal position for payment of rent would take the case outside the purview of section 12(3)(a). It is not urged in the petition or orally that there was any suet) specific agreement. Mr. Dalvi only referred to the plaint and the notice given by the landlord in which a consolidated claim was made for Rs. 359-50. That cannot spell out any express agreement to the effect that the amount of Rs. 9-50 was agreed by the tenant to be paid monthly.

19. Mr. Dalvi drew my attention to the decision of the Supreme Court in Harbanslal's case and subsequently to the decision of the Division Bench of this Court in 8(Chahganlal v. Narayan), 1983 Mah. L.J p. 254. The said decisions have no application to the present case once it is held that the landlord's claim for rent cannot be considered to be covered by section 12(3)(a). There is no dispute that the tenant has complied with the requirements of section 12(3)(b). If that view is correct then even if the tenant were in arrears for over six months and had not complied with the requisitions contained in the landlord's notice within a month thereof by full payment or making necessary application for fixation of standard rent, he would nevertheless be protected if he complies with the requirements indicated and provided for in section 12(3)(b).

20. It is important to bear in mind in this connection that it was not alleged in the Advocate's notice or in the plaint that there was an express agreement for monthly payment of the permitted increase which would otherwise be payable annually. Indeed when the Advocate for the landlords was asked by the Appellate Bench about the nature of the claim of Rs. 9.50 which was a claim in addition to the agreed rent under the instrument of tenancy, he refrained from making any statement. It was not difficult for him to obtain instructions. He could have stated which he did not that the amount did not represent the state education cess or that there was an express agreement that it would be claimed monthly by the landlords and paid-monthly by the tenant. There is no grievance made in the petition that he sought time from the Division Bench to ascertain the facts or that such time though sought for was denied to him so that he was not in a position to make any statement. No particulars of any such agreement were even offered to me. Thus, this is also a plea urged for the sake of making a plea like the earlier plea on prejudice and lacking substance. No Such monthly agreement can be spelt out from the correspondence or from the pleadings of the parties. Such an agreement to pay monthly amount has to be specifically set out. Certainly if the landlords in the plaint had urged such specific agreement, written or oral, under which the tenant had agreed to pay all such permitted increase by equal monthly instalments along with the rent fixed under the writing and if the plea had not been specifically traversed the Court could have held that the rent was payable by the month and that the matter was thus covered by or fell within provisions contained in section 12(3)(a).

21. Mr. Dalvi then urged that what the tenant ought to have done was to clear of the arrears at the rate of Rs. 350/- per month deferring the payment of the additional amount of Rs. 9.50 per month. I have already indicated my view that this is not a case where there is extra or excess rent claimed by the landlords. If that had been the position then the matter would be governed by the decision of the Division Bench in Chhaganlel v. Narayan, 1983 Mah. L.J 254. In the view that I have takent hat the rent was not payable by the month since it included a portion which was not payable by the month. I will have to hold that the Appellate Bench of the Small Causes Court was in no error in accepting Mr. Tunara's argument. I accordingly so hold.

22. In the result, none of the pleas of Mr. Dalvi have any substance end the decision of the Appellate Court does not call for any interference by this Court. The result will be that the rule will stand discharged with costs.

Order accordingly.