The petitioner in this case is the owner of a house situated at N. S. Road, Dhubri. He filed a suit for recovery of arrear rent and ejectment of the defendants M/s. P. Sen & Company who were the tenants in respect of the said house. 2. The case of the plaintiff was that the defendant had taken the suit house on rent at the rate of Rs. 150/- per month with a condition to pay the rent in the first week of the next month. It was alleged that the defendant failed to pay the stipulated rent for February, 1979 and onward and thereby became a defaulter. It was further alleged that the suit house had been sublet to a third party without the consent of the landlord. It was also claimed that the house was bonafide required by the landlord for his own use and occupation. A notice was served on the defendant to vacate the house and on its failure to do so, a suit was filed in the Court of Munsiff at Dhubri for eviction and recovery of arrears of rent. 3. The defendant contested the suit. The written statement was filed by one Shri N. L. Tewari describing himself as a constituted attorney of the defendant. The allegation that the defendant was a defaulter was denied so also the allegation regarding subletting. The claim of bonafide requirment of the landlord was also denied. The defence case was that the plaintiff bad allowed the defendant to repair the suit house at his own cost and to adjust the expenses so incurred against the rent. However, the plaintiff, later refused to adjust the same and held the tenant to be a defaulter. On the basis of the pleading the following 5 issues were framed :- 1. Whether the defendant was a tenant in respect of the suit house under the plaintiff and he sublet the same ? 2. Whether the defendant is a defaulter ? 3. Whether the present occupier of suit house is a tenant under the plaintiff ? 4. Whether the plaintiff is entitled to a decree of ejectment, arrear rent and compensation ? 5. To what relief or reliefs, the plaintiff is entitled. 4. Two witnesses were examined on behalf of the plain­tiff. 2. Whether the defendant is a defaulter ? 3. Whether the present occupier of suit house is a tenant under the plaintiff ? 4. Whether the plaintiff is entitled to a decree of ejectment, arrear rent and compensation ? 5. To what relief or reliefs, the plaintiff is entitled. 4. Two witnesses were examined on behalf of the plain­tiff. On behalf of the defendant, Sri N. L. Tewari, who was the occupant of the suit house and two other witnesses were examined. The trial Court found that Sri N. L. Tewari was the Manager of the defendant and the house was in his occu­pation. The defendant (Company) had been abolished 4/5 years ago and Sri Tewari continued to occupy the same. On the basis of these observations, the issue regarding subletting was decided by the trial Court against the plaintiff. The trial Court also observed that Sri N. L. Tewari being in possession of the suit house since the time of the defendant company, the pla­intiff had full knowledge of it. It was therefore held that according to the principle of acquiescence the plaintiff had accepted him as a tenant under him. In regard to the alleged default in payment of rent, the learned trial Court observed that the occupant Sri N. L. Tewari had repaired the suit house by spending his own money with the consent of the plaintiff which had not been adjusted towards rent. It was therefore, held that the defendant was not a defaulter. In view of the aforesaid findings, the learned trial Court dismissed the suit. On appeal, the learned Assistant District Judge, Dhubri held that as the defendant M/S P. Sen & Company left the suit premises about 4/5 years before 3rd May, 1982, the occupant there of Sri N. L. Tewari became a "statutory tenant". The learned appellate Court further held that the said N. L. Tewari himself bad become a tenant of the plaintiff in place of the original tenant M/S P. Sen & Company. Dealing with the issue regard­ing default in payment of rent it was held that Sri N. L. Te­wari had repaired the suit house with the consent of the plaintiff and spent a sum of Rs. 1,000/- which was to be adjusted against the monthly rent due to the landlord and, as such, the defendant was not a defaulter. Dealing with the issue regard­ing default in payment of rent it was held that Sri N. L. Te­wari had repaired the suit house with the consent of the plaintiff and spent a sum of Rs. 1,000/- which was to be adjusted against the monthly rent due to the landlord and, as such, the defendant was not a defaulter. The learned appellate Court also held that as the plaint did not contain a schedule" containing description of the suit house the suit was not maintainable. In view of the aforesaid findings, the appeal was dismissed. 5. Aggrieved by the aforesaid judgment the present revision petition has been filed by the plaintiff. I have beard Shri J. M. Choudhury, learned counsel for the petitioner as also Shri 'D. C. Chakravarty, learned counsel for the opposite party. The main contention of the learned counsel for the petitioner-landlord is that the findings arrived at by the Courts below are perverse and erroneous. In regard to the finding on the issue of subletting it is contended that a person other than a tenant cannot be a statutory tenant and the Courts below, therefore committed manifest error of law in holding that R. L. Tewari became a "statutory tenant". The next submission of the learned counsel is that the finding that the defendant was not a defaulter is also erroneous and perverse. In regard to the finding that the suit was not maintainable, it is submitted that absence of the schedule in the instant case, cannot in any way affect the maintainability of the suit as the parties were fully aware of the suit premises and at no stage there was any dispute regar­ding the identity or description of the same. It has also been pointed out that the notice for vacating the house which cont­ained detailed description of the suit house having been made a part of the plaint even if there was any technical flaw, the same cannot effect the maintainability of the suit. 6. I have considered the submissions of the learned counsel for the parties. Perused the record and judgments of both the Courts below. First of all, I propose to deal with the finding of the learned appellate Court that Sri N. L. Tewari was "a statutory tenant" and that he had thus become a tenant himself in place of the original tenant. This finding appears to be erroneous. Perused the record and judgments of both the Courts below. First of all, I propose to deal with the finding of the learned appellate Court that Sri N. L. Tewari was "a statutory tenant" and that he had thus become a tenant himself in place of the original tenant. This finding appears to be erroneous. It is admitted position that the tenants of the suit premises were M/S P. Sen & Company. The rent receipts were also granted to it. The occupant of the suit house Sri N. L. Tewari, at no point of time was a tenant under the plaintiff in respect of the suit house. He was also not an employee of the tenant. There is nothing on record to show that the original tenant relinquished the premises or ceased to be a tenant. No such case had been made out in the pleadings. Sri N. L. Tewari according to his own evidence, was not an ''employee" of the defendant. He only rendered some professional services to the defendant in income tax and sales tarn matters for which he received his remuneration. Similar services were rendered by him to the plaintiff also. It is not his case-that he was admitted to the suit premises by the landlord. He claimed occupation on behalf of the defendant tenant. If the tenants had relinquished the house as contended, the house should have been handed over to the landlord. Occupation of any other person might be that of a sub-tenant or a trespasser-But any occupier, by virtue or his occupation, cannot claim himself to be a statutory tenant or tenant. 7. The expression "statutory tenant" is primarily used to describe a tenant continuing in occupation of the leased premises after expiration or the term of the lease by virtue of a statute prohibiting his eviction. In order to establish as a statutory tenant, it is necessary to prove that such person had been admitted to the premises by the landlord. In the instant case, the admitted position is that Sri N. L. Tewari was not admi­tted to the suit premises by the landlord. In that view of the matter, he cannot be held to be a "statutory tenant" of the plaintiff. No protection has been afforded to such an occupant under the provisions of the Assam Urban Areas Rent Control Act. 8. In that view of the matter, he cannot be held to be a "statutory tenant" of the plaintiff. No protection has been afforded to such an occupant under the provisions of the Assam Urban Areas Rent Control Act. 8. So far as the finding regarding the tenant being a defaulter is concerned, the admitted position is that no rent had been paid for the month of February, 1979 and onwards. But for the Courts below observed that the tenant had spent, with the permission of the landlord, certain amounts on repair of the suit house, which had not been adjusted against the rent. The amount of such expenditure was determined by the trial Court at Rs. 2500/-and by the appellate Court at Rs. 1000/-. Accordingly, it was held that the tenant was not a defaulter. The case of the landlord is that the aforesaid findings are not based on any material or evidence on record and, as such, cannot be sustained. On perusal of the evidence as well as the judgments of the Courts below, I am satisfied that the aforesaid finding is not based on any mate­rial on record. The learned Courts below, therefore, were not justi­fied in holding on that account that the tenant was not a defaulter However, in the instant case, the question whether the tenant is a defaulter or not shall have to be examined from another angle. 9. The law is well settled that where eviction is claimed on the ground of the tenant being a defaulter with inline meaning clause (e) of the proviso to sub-section (1) of Section 5 of the Act, the landlord has to prove that the tenant failed to pay the rent lawfully due from him in respect of the house within a fortnight of its falling due. The most important fact that has to be proved, therefore, is the date when the sent actually fell due. Without determination of the aforesaid fact, it is difficult or rather impossible to hold a tenant defau­lter because in that case the very starting point from which the period of a fortnight runs is not available. The landlord has, therefore, to prove when the rent fell due. A bare state­ment that rent was payable month to month by itself is not enough. 10. In this connection, the two recent decisions of this Court may be referred to. The landlord has, therefore, to prove when the rent fell due. A bare state­ment that rent was payable month to month by itself is not enough. 10. In this connection, the two recent decisions of this Court may be referred to. In Upendra Deb Roy vs. Subhasini Deb (1989) 2 GLR 7, it was held: "....The determination of the date when the rent actually falls due in a particular case depends upon the arrangement or agreement between the parties. The rent may be fixed on monthly basis but that by itself will not indicate the date when the rent will fall due. The parties might mutually agree that the rent would be paid monthly say within a week or a fortnight or a month or at any other interval form the expiry of the month for which it is due- In considering the evidence of the landlord in such cases, the Court may also take into account the conduct of the parties. There may be evidence before the Court to show that the rent was being paid at varying intervals which the landlord has been accep­ting without any protest or grievance. That may indicate that there was no arrangement between the parties to pay the rent by any specific date. In such cases, the Court can infer and imply the agreement between the parties to pay rent at varying intervals on demand from the landlord at his convenience. Even if it is shown that there was some arrangement to pay the rent within a specified time from the expiry of the month, conduct of parties spreading over fairly long period of time to the contrary without any protest or objection from either party may indicate that the agreement or arrangement in regard to the payment of rent between parties was modified. A landlord who, continues to receive the rent at varying intervals from the tenant without any objection whatsoever for several years cannot be permitted to suddenly turn back and say that the arrangement between him and his tenant was otherwise and seek eviction of a tenant on the ground that he was a defaulter. A landlord who, continues to receive the rent at varying intervals from the tenant without any objection whatsoever for several years cannot be permitted to suddenly turn back and say that the arrangement between him and his tenant was otherwise and seek eviction of a tenant on the ground that he was a defaulter. In such cases, the Court may infer that there was no arrangement between the parties to pay the rent from month to month within a specified time or if there was such an arrangement, the same stood impliedly modified by the conduct of the parties." 11. In Hari Shankar Sahu vs. Giridharilal Sarmah, (1989) 2 GLR (NOC) 33, a Division Bench of this Court held: "The landlord should in our opinion, establish when under the arrangement the rent was payable and it could be said to be due so that if not paid within a fortnight the tenant could be said to have committed default, for otherwise it would not be possible or atleast extremely difficult, to determine as to when could it be said that the rent was due but had been paid within a fortnight thereafter. The receipts above noted in the instant case clearly establish that the landlord used to accept rent in one lump-sum for whole year whenever he needed in all probabilities under some arrangement. It is clear that he-had never insisted on/payment of rent after the end of the month but received payment of the rent for one year it appears whenever he wanted it. It cannot therefore be said that the plaintiff has establi­shed the first requirement of the provisions of Section 5(1)(e) read with sub-section (4) of Section 5." 12. Let us now apply the law stated above to the facts of the case before us. The facts are clear and undisputed. There is no evidence that there was any stipulation to pay rent by a particular date. In fact, the rent was paid by the tenant from time to time according to his convenience which was accepted by the landlord without any objection at any point of time. Exhibit Ka shows that rent from July, 1976 to April, 1978 amounting to Rs. 2450/- was paid in the following manner : Rs. 1400/- on 13.11.77 Rs. 400/-on 11.4.78. Rs. 650/-on 6.9.78. Exhibit Ka shows that rent from July, 1976 to April, 1978 amounting to Rs. 2450/- was paid in the following manner : Rs. 1400/- on 13.11.77 Rs. 400/-on 11.4.78. Rs. 650/-on 6.9.78. From the aforesaid facts, it can be very well inferred that rent was payable according to the mutual convenience of the parties. In that view of the matter, question of the tanant being a defaulter on account of non-payment of rent within a fortnight from the end of the month cannot arise. The finding of the Courts below holding the tenant as not being a defaulter is, therefore, affirmed, though on a different reasoning. 13. So far as the finding of the appellate Court regarding maintainability of the suit is concerned, I am of the opinion that the same cannot be sustained. Firstly, at no point of time, the defendant had made any such averment. It was never specifically pleaded. The suit house was fully known to the defendant. No such case was made out before the trial Court. The trial Court, therefore, did not go into it. The appellate Court for the first time, in its judgment referred to it and held the suit to be not maintainable on the ground of absence of the schedule of property in the plaint. 14. Mr. D. C. Chakravarty, learned counsel for the opposite party pointed out that a defence was taken in the written statement that "the suit was not maintainable". I have perused the written statement. It appears that no averment was made by the defendant as to why the suit was, not maintainable. The law in this regard is well settled. In the absence of any specific averments taken in the written statement to disclose as to how the suit was not maintainable in law, there is no need for framing such an issue or to decide it. That is what was held by this Court in Dwijendra Mohan Lahiri vs. Rajendra Nath, AIR 1971 Assam & Nagaland 143 : "......a Court should decline to frame an issue as to the maintainability of a suit in absence of specific aver­ment in the written statement as to how and in what circumstances the same is not maintainable in law. A mere vague recital in the written statement without anything more, cannot be the basis for raising such an issue." 15. A mere vague recital in the written statement without anything more, cannot be the basis for raising such an issue." 15. In the instant case, the admitted position is that no such specific averment was made in the written statement. In fact, there was no dispute between the parties regarding descri­ption of the suit property. The absence of schedule of property under the circumstances, did not affect the defendant. In this connection, another decision of this Court in Durga Prasad Goenka vs. Debidutt Saraff, AIR 1952 Assam 97 may also be referred where it was observed that where in ejectment suit the defendant did not dispute the fact that ha was a tenant of the House in question, the question of the boundaries of the property does not arise. 16. Applying the law laid down by this Court in the aforesaid decisions to the facts of the facts of the present case, I am of the opinion that the finding of the learned appe­llate Court in regard to maintainablity of the suit is not sustainable. The same,, is reversed. 17. In view of what is stated above, I am of the opinion that the matter should be remanded to the learned trial Court to decide it afresh, if necessary, by framing new issues and giving further opportunity to the parties to adduce fresh evidence. Accordingly, the judgments and orders passed by both the Courts below are set aside and the case is remanded to the learned Munsiff, Dhubri for deciding it afresh in the light of the observations and directions made above. As the matter is very old one, the learned Court may decide it as expeditiously as possible 18. No order as to cost.