IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.283 of 2005 OM PRAKASH SAHA Versus RAJ KUMAR SAHA & ORS ----------- 8 08.09.2008 Heard learned counsel for the parties. This second appeal has been filed by the sole defendant- respondent-appellant challenging the judgments and decree passed by both the learned courts below. The matter arises out of Eviction Suit no.8 of 1988 which was filed by the plaintiff-appellants- respondents for eviction of the defendant on the ground of default in payment of rent from August, 1988 to November,1988. The aforesaid eviction suit was dismissed on contest with cost by the learned Munsiff, Naugachia by judgment and decree dated 05.08.1996 which was challenged by the appellants in Title Appeal no.102 of 1996. The said appeal was allowed by the learned 2nd Addl. District Judge, Naugachia (Bhagalpur) by judgment and decree dated 08.09.2005. Against the aforesaid judgment and decree of the learned court of appeal below the instant second appeal has been filed by the sole defendant. Relationship of landlord and tenant between the parties is admitted and the only question to be decided is as to whether the defendant defaulted in payment of rent for the aforesaid period. The learned trial court dismissed the suit merely on the basis of statement of one of the plaintiff’s deposing as PW4 in paragraphs 1 and 3 of his depsotion in which it was stated that defendant did not pay rent after - 2 - November, 1988. It may be noted in this connection that in the said statement the said witness did not state that the defendant paid rent for the period August,1988 to November,1988. Merely on the basis of the said statement the learned trial court assumed that the plaintiff had admitted payment of rent for the period August,1988 to November,1988. The learned court of appeal below considered the entire matter in detail including the evidence on record and found that there was nothing but a simple slip of tongue which often occurs during depositions. He further found that before the said period the rents were paid by receipt but no receipt for the period of August,1988 to November,1988 was produced and the other evidence on record also clearly proved that the defendant was a defaulter for the period August,1988 to November,1988. The aforesaid finding of the court of appeal below being based on specific material appears to be legal and proper. The other point raised by the learned counsel for the appellant is that the plaintiff himself in his plaint has stated that the defendant was a habitual defaulter but earlier plaintiff had taken lenient view, and hence the earlier month to month tenancy was modified by the conduct of the plaintiff who accepted accumulated rents from the defendant and hence due to the aforesaid modification of the terms of the tenancy accumulated rent for several months were being paid to the plaintiff according to his case. Hence he submits that the plaintiff due to his subsequent conduct can not raise the plea of default. - 3 - So far as the aforesaid question is concerned, it is quite apparent that there was no material at all to show that the term of tenancy was ever modified by the parties and that the rent receipts were also issued as per monthly tenancy. Further more it was specifically found by the learned appellate court that earlier there was only two defaults in payment of rent in the year 1973 as well as in the year 1979. Hence it is quite clear that after 1979 there was no default and rent was being paid month to month by the defendant to the plaintiff till the recent default and the claim of the defendant regarding payment of accumulated rent regularly is not supported by any material whatsoever. However, the plaintiff had only stated that earlier in the year 1973 and 1979, he ignored defendant’s default, but now he wants the defendant evicted. It is for the plaintiff to choose as to when he should file a suit for eviction and when he could take a lenient view and hence this time the plaintiff was quite justified in filing the suit for eviction on the ground of default in payment of rent for the aforesaid period specially when the conduct of the parties did not show any modification in the terms of the tenancy. In the aforesaid facts and circumstances, this Court does not find any illegality in the impugned judgments and decree nor does it find any substantial question of law involved in the instant second appeal, which is accordingly dismissed at this stage of hearing under Order XLI Rule 11 of the Code of Civil Procedure. shahid (S.N.Hussain, J) - 4 -