Purushotam Das Dhoribhai v. Ramesh Prasad Sao — 1991 DIGILAW 250 (PAT)

Judgment Bhuvaneshwar Prasad, J. 1. This is an appeal filed by the sole defendant which is a partnership firm. It is directed against the judgment dated 10-7-1985 and the decree signed on 19-7-1985 passed by Shri Ibrar Hassan, subordinate Judge, Chaibassa at Singhbhutn in Eviction Suit No.1 of 1984. The sole plaintiff is the respondent. 2. The case of the plaintiff-respondent is that he is the co-owner of the building and premises bearing Holding No.17 in Ward No.7 in Chakradharpur municipality. This holding was recorded in the names of late Thakur prasad Sao, late Lakshmi Prasad Sao and Sheo Shankar Prasad Sao all sons of late Nepal Sao. The plaintiff happens to be one of the sons of late Thakur prasad Sao who died on 2-8-1983 leaving behind his two sons and three daughters. The wife of late Thakur Prasad Sao had pre-deceased him. Similarly, late Lakshmi Prasad Sao died on 7-6-1982 leaving behind his widow and four daughters as his heirs. The plaintiff is the landlord as defined in clause (f) of Sec.2 of the Bihar Buildings (Lease, Rent and Eviction) Central act, 1982 (in short the act), since he is one of the persons entitled to receive the rent for this building for his own benefit and also for the benefit of the other co-owners. The appellant-defendant is the month to month tenant in respect of the suit house and premises on a rent of Rs.1000/- per month. The rent was payable on the first day of every English Calender month in advance. The defendant is in arrears of rent lawfully payable since the month of November, 1983 to April, 1984 and it did not pay in spite of repeated demands and has thus made itself liable to be evicted under Sec.11 (1) (d) of the Act. Accordingly the suit was brought for a decree for the eviction of the appellant from the suit premises and for recovery of its khas possession. 3. The appellant filed a written statement in which it contended that all the heirs and the legal representatives of late Lakshmi Prasad Sao and late thakur Prasad Sao have not joined the suit. It is bad on this account, since all of them were the co-owners of the house in suit. The plaintiff in the suit had never realised any rent from the defendant. It is bad on this account, since all of them were the co-owners of the house in suit. The plaintiff in the suit had never realised any rent from the defendant. He cannot be said to be the landlord with respect to the house in suit. He is not a person who is entitled to receive its rent on behalf of all other co-owners and has no authority to do so on their behalf. There is already a litigation going on between the heirs of late Thakur Prasad Sao and late Lakshmi Prasad Sao and Sheo Shankar prasad Sao for partition of their joint family properties including the house in suit. As such it cannot be said that the plaintiff is entitled to receive rent for and on behalf of the heirs and legal representatives of late Thakur Prasad sao and late Lakshmi Prasad Sao. He is not even the head of the family of late Thakur Prased Sao and is thus not the landlord in respect of the house in suit within the meaning of Sec.2 (f) of the Act. The rent of the house in suit was illegally enhanced from Rs.450/- to Rs.1000/- from the month of september, 1982 under the threats of eviction. There was no agreement between the parties that the rent for each month could be paid in advance on the first day of that month. On the other hand, the landlords used to send their Munim to collect the rent from the appellant from time to time. The said Munim used to collect the rent in lump sum and used to grant receipt for the same. The rent for the months of September, 1982 to October, 1983 was collected by the Munim on 30-10-1983 who granted seven receipts for the same. Each receipt was for two months and their dates of issue were mentioned as 24-10-1983, 25-10-1983, 26-10-1983, 27-10-1983.28-10-1983, 29-10-1983 and 30-10-1983. 4. In the middle of December, 1983 the Munim of the landlords came to the appellant and informed him that the landlords wanted to enhance the rent further and unless so enhanced they will not receive for the same. On this appellant sent the rent for the month of November, 1983 on 13-12-1983 through a Demand Draft. 4. In the middle of December, 1983 the Munim of the landlords came to the appellant and informed him that the landlords wanted to enhance the rent further and unless so enhanced they will not receive for the same. On this appellant sent the rent for the month of November, 1983 on 13-12-1983 through a Demand Draft. Thereafter again the appellant sent rent for the months of November, 1983 to January, 1984 by Demand Drafts to the landlords but the same was refused, Hence it will be false to say that the rent from the months of November, 1983 to April, 1984 is in arrears and as such the appellant cannot be said to be a defaulter in the eyes of law. On these grounds, amongst, others, the appellant contended that the suit be dismissed. 5. The learned court below, in the course of hearing of the suit, framed a number of issues. Issue No.4 was whether the plaintiff is landlord in respect of suit house and premises. After a detailed discussion it answered this issue in affirmative and against the appellant. Issue No.5 was whether the defendant was in arrears of rent lawfully payable. This issue was also answered against the appellant. Issue No.3 was whether the suit was bad for non-joinder cf necessary parties, since the other co-owners had not joined the suit. The learned court below held that the suit was not bad for non-joinder of necessary parties and decided this issue in favour of the plaintiff-respondent. He, accordingly, decreed the suit directing the appellant to vacate the suit building and to deliver its has possession to the plaintiff-respondent within 60 days of the passing of the judgment failing which the plaintiff would be entitled to evict the defendant from the suit building and premises and to recover has possession thereof through the process of the court. 6. In this appeal the appellant has contended that the judgment and decree passed by the learned court below are wrong on facts and contrary to the law. They are also against the weight of evidence and materials on record. The learned court below should have held that the plaintiff-respondent was merely one of the co-owners and was, therefore, not entitled to maintain the suit or to receive the rent of the suit premises. They are also against the weight of evidence and materials on record. The learned court below should have held that the plaintiff-respondent was merely one of the co-owners and was, therefore, not entitled to maintain the suit or to receive the rent of the suit premises. The landlord of the suit house and the premises was the firm of M/s Thakur Prasad Sao and the plaintiff even if he may be said to be a partner of this firm was not entitled to maintain the suit in his individual capacity. According to the interim award (Ext. D) the suit house was not allotted to the plaintiff respondent, and as such he was not entitled to maintain the suit for eviction. He is also, therefore, net the landlcrd of the suit premises. Ext. D which is the interim award of the arbitrator would show that the suit house was set apart to meet the marriage expenses of the eldest daughter of Sheo Shankar prasad Sao and, therefore, she alc?ne was entitled to receive its rent. The learned court below should have held that the suit was bad for non-joinder of the necessary parties. It also wrongly decided issue Nos.5 and 6 against the appellant. It should have held that the remittance of the rent by the defendant-appellant for the month of November, 1983 and onwarde by Bank draft was a valid remittance and, therefore, the defendant-appellant was not a defaulter. There was no contract between the parties for advance payment of rent on the first of the each month. On the other hand, from the conduct of the parties it would appear that the rent used to be collected in lump sum by the Munim of the plaintiff-respondent at his convenience whenever he used to visit Chakardharpur. The payment of rent through Bank Draft is also in confirmity with requirements of the Act. On these grounds, others, it was contended that this appeal be allowed and the suit be dismissed. 7. At the outset the learned counsel for the appellant has submitted that the respondent cannot be said to be a landlord within the meaning of section 2 (f) of the Act, and, therefore, he was not entitled to bring the suit. On this ground alone it was submitted that the suit was not maintainable and was fit to be dismissed. At the outset the learned counsel for the appellant has submitted that the respondent cannot be said to be a landlord within the meaning of section 2 (f) of the Act, and, therefore, he was not entitled to bring the suit. On this ground alone it was submitted that the suit was not maintainable and was fit to be dismissed. This brings us to the consideraticn of the question who is the "landlcrd" within the meaning of Sec.2 (f) of the Act which runs as follows : "section 2 (f ). "landlord" includes the person who for the time being is receiving or is entitled to receive the rent of a building whether on his own account or on behalf of another, or on account of on behalf of for the benefit of himself and others or as an agent, trustee, executor, administrator, receiver, guardian or who would so receive the rent or be ontitled to receive the rent, if the building were let to a tenant". 8. This definition shows that the "landlord" includes the person who for the time being is entitled to receive the rent of a building whether on his own account or on behalf of the others and whether on account of and for the benefit of himself and others. The main challenge of the authority of the respondent to bring the suit is that the plaintiff never realised the rent for the suit premises and that he has not even examined himself. On this ground the authority of the plaintiff to bring the suit has been challenged. However, I will firstly proceed to discuss the evidence on this point and the facts and circumstances of this case. 9. From the plaint it appears that the house in suit was recorded in the names of late Thakur Prasad Sao, Late Lakshnil Prasad Sao and Sheo shankar Prasad Sao all sons of late Nepal Sao. In paragraph 2 of the plaint, it has been stated that late Lakshmi Prasad Sao had died leaving behind his widow and four daughters as his heirs and late Thakur Prasad Sao died leaving behind his two sons and three daughters as his heirs. One of the sons namely, Ramesh Prasad Sao is the sole plaintiff. In paragraph 2 of the plaint, it has been stated that late Lakshmi Prasad Sao had died leaving behind his widow and four daughters as his heirs and late Thakur Prasad Sao died leaving behind his two sons and three daughters as his heirs. One of the sons namely, Ramesh Prasad Sao is the sole plaintiff. In paragraph 6 of the written statement it has been stated that the house in suit belonged to the three brothers named above and on the death of Thakur Prasad Sao and lakahmi Prasad Sao their heirs and legal representatives are. the landlords along with Sheo Shankar Prasad Sao. In paragraph 7 of the written statement the appellant has stated that he was not aware about the death of lakshmi Prasad Sao and Thakur Prasad Sao and also the dates of their death. In paragraph 9 of the written statement the appellant contended that the plaintiff cannot be said to be the landlord in respect of house and premises in suit. 10. From these pleadings it would appear that the plaintiff is one of the sons of Thakur Prasad Sao and is, therefore, a co-owner of the house insult. This fact has been admitted by D. W.2 in paragraph 8 of his evidence in which he has stated that Thakur Prasad Sao the father of the present plaintiff, was one of the co-owners of the house in suit. Thus, this appears to be the admitted position. The next question that may arise in this connection would be whether under law one of the co-owners, namely, the present respondsnt could be said to be the landlord with respect to the house in suit and could bring the eviction suit against the appellant. From the definition of the "landlord" as given in Sec.2 (f) of the Act it becomes clear that the respondent will be covered by this definition and being a co-owner of the suit premises will certainly come within the definition of the "landlord" within the meaning of Sec.2 (f) of the Act. In this connection a reference may be made to the case of Ram Pasricha V/s. Jagannath and others, AIR 1976 SC 2335 . In this case also the plaintiff was only a co-sharer owner of the suit premises being one of the heirs of his father late motilal Sen who originally owned the property. In this connection a reference may be made to the case of Ram Pasricha V/s. Jagannath and others, AIR 1976 SC 2335 . In this case also the plaintiff was only a co-sharer owner of the suit premises being one of the heirs of his father late motilal Sen who originally owned the property. The plaintiff instituted the suit for eviction on the twin pleas of default in payment of rent and reasonable requirement of the premises for his own occupation as well as for the occupation of the members of the joint family. The trial court decreed the suit on both the grounds. On appeal the lower appellate court did not accept the plea of default but affirmed the finding of reasonable requirtement. In the second appeal before the learned Single Judge of Calcutta High Court it was submitted that the plaintiff being only a co-sharer and also only a part-owner was not entitled to eviction on the ground of reasonable requirement of the premises for his own occupation as well as for the occupation of the members of the joint family. This plea was accepted by the learned Single Judge. The matter went before Division Bench of the High Court under Letters Patent appeal. The Division Bench set aside this decision of the learned Single Judge and held that a co-owner is inasmuch as an absolute owner as a sole owner is with reference to the interest held by him. It was this decision of the Division bench that was challenged before the Hon ble Supreme Court. Before the Hon ble Supreme Court also it was urged that since other co-owners were not made parties to the suit it was not maintainable. It was, however, held by the Supreme Court in the above mentioned case that a co-owner is as much as the owner of the entire property as any sole owner of a property is. Accordingly this objection was overruled. In the present case it has been contended that only one of the co-owners has brought the suit and that other co-owners has not been joined as parties to the suit. The present case stands on a better footing since it was not brought on the ground of personal necessity. Accordingly this objection was overruled. In the present case it has been contended that only one of the co-owners has brought the suit and that other co-owners has not been joined as parties to the suit. The present case stands on a better footing since it was not brought on the ground of personal necessity. Hence the contention of the appellant to the contrary as raised in the present appeal cannot be sustained in view of this decision of the Hon ble supreme Court. 11. On behalf of the appellant it has been submitted that the plaintiff never used to realise the rent of the suit premises and, therefore, he cannot be said to be the landlord. There is no force in this contention because the definition of the "landlord", as noticed above, clearly shows that it will include the person who for the time being is entitled to receive the rent of a building whether on his own account or for the benefit of him self and others. Thus even when a person is entitled to receive the rent of the suit premises he will come within the definition of the "landlord" irrespective of the fact whether he had never realised the rent of the suit premises earlier. In this connection, a reference may be made to the evidence of P. Ws.1, 2 and 3 who have been examined on behalf of the respondent. P. W.1 has stated that on the death of Thakur Prasad Sao his five heirs including the present plaintiff were entitled to a share in the suit property. On this ground he has stated that the present plaintiff was entitled to receive the rent of the suit premises. P. Ws.2 and 3 have stated that Thakur Prasad sao one of the co-owners had died in the year J 983 and that the plaintiff is his second son. Even D. W.2 has admitted, in his evidence, that Thakur prasad Sao is dead and he has left behind his heirs including the present plaintiff. He has not denied the fact that the plaintiff is not the son of thakur Prasad Sao. Thus, on the basis of the oral evidence on record it can safely be concluded that the plaintiff, Ramesh Prasad Sao, being one of the sons of Thakur Prasad Sao, was the co-owner of the suit premises. He has not denied the fact that the plaintiff is not the son of thakur Prasad Sao. Thus, on the basis of the oral evidence on record it can safely be concluded that the plaintiff, Ramesh Prasad Sao, being one of the sons of Thakur Prasad Sao, was the co-owner of the suit premises. As such even if the plaintiff sever realised the rent for the suit premises that is going to make no difference so far as status as the landlord is concerned. 12. On behalf of the appellant it has been contended that the plaintiff has not examined himself and, therefore, this is a circumstance against him. From the evidence of P. W.1 however, it appears that he is a servant of the plaintiff and is deposing on his behalf. He has been able to give all the particulars required for the disposal of the suit. As such the non-examination of the plaintiff will hardly make any difference. On behalf of the appellant it has further been contended that there was a partition Suit No.22/78 pending between Thakur Prasad Sao and the heirs of Lakshmi Prasad Sao with respect to their properties including the house in suit. Ext. D is the certified copy of the ad-inteiim award dated 31-1-1978 submitted in the aforesaid Title Suit No.22 of 1978 pending in the court of the 1st Additional subordinate Judge, Chaibassa Drawing my attention to item No.14 of ext. D, it has been submitted that since the house in suit as per this ad-interim award was not allotted to the share of he plaintiff, he could not have brought the suit with respect to this house in which was not given any share. From ext. D which is an ad-interim award dated 31-1-1978 it would appear that as per the agreement between the parties dated 26-11-1977 the dispute between the parties was referred to the arbitrators in which ad-interim award was submitted on 31-1-1978. It was riled in T. S. No.22 of 1978. Ext. D further shown that the arbitrators had entered into the reference on 27-11-1977 after giving the notice to the parties on the same day and heard and examined the parties and perused their documents. It was riled in T. S. No.22 of 1978. Ext. D further shown that the arbitrators had entered into the reference on 27-11-1977 after giving the notice to the parties on the same day and heard and examined the parties and perused their documents. From this the following would appear namely (i) this award is ad-interim award (ii) it was given by the arbitrators on a reference made to them by the parties themselves and not by the court (iii) it is dated 31-1-1978 which was filed in T. S. No.22 of 1978 and, (iv)the arbitrators had entered into the reference on 27-11-1977 much before the institution of T. S. No.22 of 1978. This clearly shows that the dispute between the parties was not referred to the arbitrators through the court. On the other hand, the parties themselves had referred their differences and dispute to the arbitrators before 27-11-1977 as will appear from Ext. D. It further appears that no decree was grown up on the basis of this ad-intcrim award and though the award the partition was sought to be effected with respect to immovable property worth more than Rs.100/- the same was not registered. In this connection, a reference may be made to the case of Satish Kumar and others V/s. Surinder Kumar and others, A I R 1970 SC 833 ). In this case also the reference to the reference to the arbitration was made by the parties and the arbitration was without intervention of Court. The award was not made rule of the Court. It was held that an award given under the Arbitration Act on a private reference requires registration under Sec.17 (l) (b) of the Registration Act, if the award effects partition of immovable property exceeding the value of Rs.100/-. Registration of award before making it rule of Court was necessary. In this connection a reference may be made to Sec.27 of the Arbitration Act. This section deals with the power of arbitrators to make an interim award. Its sub-section (2) runs as follows : " (2) All reference in this Act to an award shall include references to ad-interim award made under sub-section (1)". Further a reference may also be made to Sections 14 and 17 of this Act. Sec.14 deals with the filing of the award in the Court. Its sub-section (2) runs as follows : " (2) All reference in this Act to an award shall include references to ad-interim award made under sub-section (1)". Further a reference may also be made to Sections 14 and 17 of this Act. Sec.14 deals with the filing of the award in the Court. Sec.17 requires that a judgment may be pronounced in terms of award and upon the judgment so pronounced a decree shall follow from which no appeal would lie. From these discussions it would appear that as yet the award in question is ad-interim in nature. It has not been made a rule of the court and so de cree has been passed on its basis. Hence it is clear that this interim award has not as yet been acted upon. Therefore, on the ground that as per Item No.14 of the interim award the house in suit was not allotted to the share of the plaintiff it cannot be said that he was not entitled to file the suit. 13. On behalf of the appellant it has been submitted that the house in suit belonged to the partnership firm of the plaintiff and not to the joint hindu family constituted by the three brothers. No such plea appears to have been taken in the written statement. In this connection I have already made a reference to paragraphs 6 and 7 of the written statement to show that the appellant had accepted that the three sons of Nepal Sao were the owners of the house in suit. In paragraph 9 of the written statement it has been submitted that the plaintiff alone is not entitled to receive the rent of the tenanted premises on behalf of all other persons including the other heirs of late Thakur Prasad Sao, late Lakshmi Prasad Sao and Sheo Shankar prasad Sao. This also shows that even according to the appellant the house in suit belonged to the joint Hindu family of the common ancestor Nepal sao and not to any partnership firm. Hence I do not find any force in this contention of the learned counsel for the appellant. In this connection a reference may also be made to the oral evidence on record. P. W.1 has stated that the heirs of Thakur Prasad Sao became the co-owners of the house in suit. Hence I do not find any force in this contention of the learned counsel for the appellant. In this connection a reference may also be made to the oral evidence on record. P. W.1 has stated that the heirs of Thakur Prasad Sao became the co-owners of the house in suit. So far as D. W.2 is concerned, he has stated that the house in suit belonged to Thakur Prasad Sao, Lakshmi Prasad Sao and Sheo Shankar prasad Sao. He has not said a word that the house in suit belonged to any partnership firm. In paragraph 8 of his evidence he has admitted that even demand Draft was sent in the name of Thakur Prasad Sao and not in the name of any partnership firm. In this connection, my attention has been drawn to paragraph 9 of the evidence of P. W.1 in which he has stated that the rent of the house in suit used to be received by Thakur Prasad Sao. It was not divided amongst his brothers. On the other hand, the money was deposited in the name of the firm owned by the brothers. This will, however, not to show that the house in suit belonged to the partnership firm, simply because the rent for the house instead of being divided amongst the three brothers used to be deposited in the name of the partnership firm. Also d. W.2 does not say that the house in suit was let out by the partnership firm. In this connection a reference may also be made to the rent receipts (Ext. A/series)which also show that they were being granted on behalf of the three brothers and not on behalf of any partnership firm. Hence I do not find any merit in this contention of the appellant. 14. On behalf of the appellant it has been submitted that there was an agreement between the parties that the Munim of the plaintiff used to go to Chakardharpur from time to time and used to collect the rent in a lump sum from the appellant. In other words, it is the contention that the rent of the suit premises was not being paid regularly per month but was being collected by the Munim of the plaintiff from time to time in lump sum. In other words, it is the contention that the rent of the suit premises was not being paid regularly per month but was being collected by the Munim of the plaintiff from time to time in lump sum. In this connection a reference may be made to the evidence of P. W. I, who had stated in paragraph 5 of his evidence that the appellant had paid the rent for fourteen months from September.1982 to October, 1983 all. In October, 1983 on 24th, 25th, 26th 27th, 28th, 29th and on 30th October Thus it had given rent at the rate of Rs.2000/- per day. He has denied the suggestion that the entire amount of Rs.14,000/- was paid to him on 30-10-1983. This will, however, not go to make any difference inasmuch as from the examination-in-chief of P. W.1 himself it would appear that the rent from the month of September, 1982 to October, 1983 was paid on the various dates of October, 1983 by the appellant to him. In this background the question whether this rent was paid at Chakardharpur or at Chaibassa is not very material. The fact remains that the rent used to be paid in lump sum as has been admitted by P. W.1. In this background it cannot be said that there was any agreement between the parties that the rent for each month had to be paid in advance on the first day of the month as contended by the plaintiff. Even D. W.2 has stated that the rent used to be paid in lump sum and so far as the rent for the fourteen months was concerned it was paid on 30-10-1983 and the rent receipts (Bxt. A to A/6) were issued for the same. 15. It is, however, the specific case of the respondent that the appellant had defaulted in the payment of rent from November, 1983 to April, 1984 and has thus become a defaulter in the eyes of law. In this connection, a reference may be made to paragraph 13 of the written statement in which it has been stated that the rent for the months of November, 1983, December, 1983 and January, 1984 was remitted be Demand Draft to the landlord but the same was refused. In this connection, a reference may be made to paragraph 13 of the written statement in which it has been stated that the rent for the months of November, 1983, December, 1983 and January, 1984 was remitted be Demand Draft to the landlord but the same was refused. As such it would appear incorrect to say that the rent from the months of November, 1983 to April, 1984 was not paid by the appellant to the plaintiff. In his evidence also D. W.2 has stated about it. He has also the letter (Exts. B/2 and B/3 ). 16. In this connection, the important question that may arise for consideration would be whether the remittance of rent by Bank Draft would be treated to be the valid payment of rent in the eyes of law or not. I will firstly like to refer to Sec.19 of the Act which provides for the deposit of rent by tenant on refusal of the landlord to accept it or in case of doubt or dispute as to the person entitled to receive it. Its sub-section (1) provides that the tenant may remit such rent, and continue to remit any subsequent rent which becomes due in respect of such building, by postal money order to the landlord. Sec.19 of the Act does not make any provision for the remittance of rent through the Bank Draft. The only one mode for this remittance has been provided and that is by postal money order. Admittedly in the present case this mode of remittance of rent has been adopted. In this connection a reference may be made to the case of Ram-Tahal Modi alias Ram Tahal Chaurasia V/s. Ratan Lal alias Ganesh Shankar Vidyarthi, 1988 p L J R 250 in which it was held that the tender of rent by the tenant to the lanlord before remitting the same through money order is not necessary. In the present case, however, it is not a case of the appellant that the tender of rent was made to the land lord and on its refusal it was sent by Bank draft. The case of the appellant, in this regard, is that the rent was sent through the Bank Draft even without tendering the same to the landlord in person. The case of the appellant, in this regard, is that the rent was sent through the Bank Draft even without tendering the same to the landlord in person. This decision relied upon by the appellant will, however, not help its case since it is remitting of rent through money order that is necessary even if its tender to the landlord is not a precondition. In the present case neither any tender was made nor the rent was remitted through money order. Hence this decision is of no help to the appellant. Tender of rent through Bank draft is not recognised as a legal and valid tender in the eyes of law. Hence it has to be held that the appellant had defaulted in the payment of rent from the months of November, 1983 to April, 1984 and has thus become a defaulter in the eyes of law. In this connection, it may be mentioned that even D. W.2 has admitted that he had never applied to the House Controller for deposit of the rent as provided by sub-section (2) of Sec.19 of the act. Also there is no case that there was a bonafide doubt or dispute as to the person which was entitled to receive any rent. From these discussions it would appear that the appellant has defaulted in the payment of rent for consecutive six months and is, therefore, a defaulter within the meaning of section 11 (1) (b) of the Act. 17. The learned counsel for the appellant has placed reliance on the case of Rashik Lai and others V/s. Shah Gokuldas, AIR 1989 SC 920 . In this case the eviction was claimed on the ground of default in payment of rent. It was observed in paragraph 8 as follows: "8. For an inference to be raised regarding existence of an implied agreement between the landlord and the tenant as regards acceptance of rent of several months at one time it is not necessary that the rent should be paid and accepted at a fixed period of interval. The crucial test appears to be the conduct of the landlord in receiving the rent off and belatedly. If he receives the same under a protest and warns the tenant to be regular in payment in the future, he cannot be assumed to have agreed to a modified agreement in this regard. The crucial test appears to be the conduct of the landlord in receiving the rent off and belatedly. If he receives the same under a protest and warns the tenant to be regular in payment in the future, he cannot be assumed to have agreed to a modified agreement in this regard. But if he, without any objection and without letting the tenant know his thought process, continues to receive rent and intervals of several months, he cannot be allowed to spring a surprise on the tenant by suddenly starting a proceeding for eviction. Having lulled the tenant in the belief that things were all right, the landlord was under a duty to serve him with a notice demanding regular payment, if he wished to insist upon it. In the instant case there was no objection whatsoever raised on behalf of the landlord against the delayed payments. Therefore the occurrent finding in view of the conduct of the parties in payment and receipt of rent of several months at a time, that there was an implied agreement between them to do so and the landlord was not entitled to insist on the tent to be paid every month would not liable to be interferred with. ILR (1982) Bombay 1502 reversed. " 18. In the present case it has been noticed that the rent even in lump sum and at irregular intervals were being accepted by the respondent till the month of October, 1983. D. W.2 has stated in his evidence that in the middle of December, 1983 the Munim of the plaintiff had informed him that the landlord was asking for enhancement of the rent and so long the rent was not increased, the same will not be accepted by the plaintiff. It was only after this that according to D. W.2 the rent for the month of November, 1983 was sent to the landlord through Bank Draft. He has further stated that after October, 1983 the landlord did not send the Munim to collect the rent. From this it would appear that what-ever may be the previous mode of payment of rent till October, 1983. From November, 1983 it was given to understand to the appellant that the rent has to be increased and that the rent at the prevailing rase of Rs.450/- per month will not be acceptable to the landlord. From this it would appear that what-ever may be the previous mode of payment of rent till October, 1983. From November, 1983 it was given to understand to the appellant that the rent has to be increased and that the rent at the prevailing rase of Rs.450/- per month will not be acceptable to the landlord. In this background it was all the more necessary for the appellant to remit the rent in the mode prescribed under Sec.19 (1) (a) of the Act through money order. As has been noticed above the understanding between the parties for the payment of rent in lump sum and at irregular intervals was terminated within the knowledge of the appellant and as such the appellant cannot now take the advantage of the ratio of the decision of the case of Rashik Lal (supra) to say that even when he has defaulted in the payment of rent for five consecutive months since November, 1983 it will not amount to default in the eyes of law. Hence this decision in the background of the facts of the present case is of no help to the appellant. 19. I have also perused the judgment of the learned Subordinate Judge. I find that he has properly discussed the facts of this case and the question of law involved. He has also taken into consideration the attending circumstances and he appears to have come to the correct conclusion with regard to the default in the payment of rent of the suit premises by the appellant. He has, therefore, rightly decreed the suit asking the appellant to vacate the suit premises, 20. From the detailed discussions made above, f do not find any merit in this appeal. It is, accordingly, dismissed on contest with cost. Pleader fees Rs.250/-. Appeal dismissed.