sIN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.14 of 2011 Rina Mishra Versus Bibi Barira Khatoon ---------------------------------- 07. 12.12.2011 Heard Mr.Prem Kumar Jha, the learned counsel appearing on behalf of the appellant and Mr.Raghib Ahsan, the learned senior counsel appearing on behalf of the respondent. 1. This appeal has been filed by the appellant against the judgment of affirmance. The parties hereinafter shall be referred to by their original position in the suit. The plaintiff has claimed eviction of the defendant on the ground of default in payment of rent committed by the defendant-tenant after May, 2000 onwards. The defendant has not asserted that the rent had been paid for the aforesaid period but has tried to explain away the default by asserting that there was oral agreement in between the landlord and tenant that the rent would be payable in lumpsum and not on monthly basis. The defendant has also filed rent receipts to establish the contention that the rent was payable in lumpsum. It has also been the contention of the defendant that the landlord was residing outside 2 India and in view of that fact also the payment of rent in lumpsum had been agreed. 2. Both the courts below after consideration of the evidence on record, pleadings and submissions of the parties have recorded the concurrent finding that the defendant has failed to establish the agreement to pay rent in lumpsum. Further the courts below have also found the defendant to be defaulter as alleged by the plaintiff and on this basis the suit for eviction has been decreed. 3. Mr. Prem Kumar Jha, the learned counsel appearing on behalf of the appellant has strongly contended that the pattern of payment of rent as disclosed by the rent receipts of the previous years clearly established the agreement for payment of rent to be in lumpsum. It has been urged by the learned counsel that both the courts below have misconstrued the evidence in this regard and have recorded the erroneous finding that the defendant was defaulter. The learned counsel has also submitted that the lower court records be called for in order to look into the materials on record which shall show the mode of payment of 3 rent to be in lumpsum. 4. After the perusal of the impugned judgments and considering the submissions of the learned counsel, it appears that the suit has been filed alleging the default in payment of rent after May, 2000 onwards till the date of filing of the suit. Ext. 1 which is the kiraynama executed by the defendant and not denied by her, shows that there was a clear stipulation that the rent would be payable month to month in the Ist week of the following month. It is not the case of the defendant that after the said Kiraynama there was any other agreement for payment of rent in lumpsum. It is also not the case of the defendant that the kiraynama (Ext.1) had not been given effect to and not acted upon. In this view of the matter, coupled with the fact that the case of the agreement for payment of rent in lumpsum has been disbelieved by both the courts below, it is clear that the dispute arising between the parties in the eviction suit has been settled by concurrent finding of fact. It is well settled that there is no scope for reappraisal of evidence in second appellate jurisdiction unless the findings are shown to be perverse. The 4 courts below have recorded the findings on their appreciation of evidence. As such there is no force in the submission for reconsideration of the findings of fact. No substantial question of law, thus, arises for consideration in this appeal which is accordingly, dismissed. 5. However, it appears that by order dated 02.02.2011 there was stay of further proceeding of Execution Case No.01/09 pending before the Court of Additional Munsif, Darbhanga and an undertaking on behalf of the appellant was recorded in the said order for payment of the current rent of the suit premises on month to month basis. It has been submitted by the learned counsel Mr.Prem Kumar Jha, that all the arrears of rent and the current rent up to the month of November, 2010 have already been deposited by the appellant and now there is no arrears of rent or any amount due by way of rent except the rent of the month of December, 2011 which may fall due. It has, therefore, been prayed that a reasonable time maybe granted to the appellant to vacate the suit premises as she is a poor lady and does not want to pursue the 5 litigation and it has been undertaken that the appellant shall vacate the suit premises on or before 31st March, 2012. Mr. Raghib Ahsan, the learned senior counsel appearing on behalf of the respondent has agreed to the aforesaid prayer in view of the undertaking. The learned counsel for the appellant, then, has made prayer that the amount of rent which has been paid by the appellant uptill now may be accepted as complete satisfaction of amount payable by the appellant to the respondent and she should not be fastened with liabilities to pay interest on the said amount. The learned senior counsel for the respondent has, in view of the undertaking by the appellant to vacate the suit premises by 31st March, 2011, submitted that in order to end the litigation between the parties, this prayer may also be accepted. In view of the aforesaid submissions, it appears equitable that the amount deposited by the appellant towards arrears of rent and current rent be treated to be in full satisfaction of the claim of the amount of rent by the respondent and the appellant be absolved from the liability to pay any interest thereupon and it is therefore ordered 6 accordingly. Further in view of the undertaking on behalf of the appellant, she is directed to vacate the suit premises by 31st of March, 2012 and shall handover the vacant possession of the suit premises to the respondent or her appointed representative. It is made clear that if the appellant fails to vacate the suit premises by 31st March, 2012 in accordance with the undertaking, the execution proceeding shall revive and the delivery of possession shall be given to respondent through the process of the court immediately thereafter, and further the respondent shall be at liberty to move this court for initiating a proceeding for contempt against the appellant for committing the breach of the undertaking. The appellant shall continue to pay current rent which may fall due as per the earlier order and the respondent shall be liberty to withdraw the rent deposited by the appellant. Nitesh ( V. Nath, J.)