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2008 DIGILAW 160 (GAU)

Nityananda Dutta v. Anisul Haque

2008-02-27

BROJENDRA PRASAD KATAKEY

body2008
JUDGMENT B.P. Katakey, J. 1. The defendant No. 2, Sri Nityananda Dutta, in Title Suit No. 13/2003 filed by Md. Anisul Haque, the opposite party/landlord, in the Court of the learned Civil Judge (Jr. Division) at Jorhat, (now Munsiff) praying for. his ejectment along with two other persons, namely Sri Rohini Dutta and Sri Ramen Dutta, from the suit house on the ground of default in payment of the monthly rent and also for the violation of the terms and conditions of the tenancy, has challenged the judgment and decree dated 02.07.2005 passed by the learned Civil Judge (Sr. Division), Jorhat (now Civil Judge) in Title Appeal No. 4/2005, whereby and whereunder the suit of the plaintiff/opposite party No. 1 herein, was decreed by setting aside the judgment and decree dated 18.10.2004 passed by the learned Civil Judge (Jr. Division), No. 1, Jorhat (now Munsiff) in the said suit. 2. The opposite party No. 1 herein as plaintiff, instituted Title Suit No. 13/2003 under the provisions of the Assam Urban Areas Rent Control Act, 1972 (in short, "The Act") in the Court of the learned Civil Judge (Jr. Division), No. 1 at Jorhat praying for eviction of Sri Rohini Dutta (proforma opposite party No. 2), Sri Nityananda Dutta (the petitioner herein) and Sri Ramen Dutta, (whose name has been struck off from the list of proforma opposite party vide order dated 24.05.2006 passed by this Court on the prayer of the petitioner) from the suit house, on the ground of defaulter and violation of the terms of tenancy and also claiming arrear rent from 01.04.2000 to 31.03.2003 contending inter alia that the eastern part of the Assam Type House bearing Municipal Holding No. 156 originally belonged to the paternal uncle of the opposite party No. 1 was let out to Prema Kanta Dutta, the predecessor-in-interest of the petitioner and the proforma opposite parties at monthly rent of Rs. 70/- with effect from 16.11.1967 and after the death of Prema Kanta Dutta the petitioner and the proforma opposite parties became the tenants under the opposite party No. 1/plaintiff, who got the suit house by right of inheritance. 70/- with effect from 16.11.1967 and after the death of Prema Kanta Dutta the petitioner and the proforma opposite parties became the tenants under the opposite party No. 1/plaintiff, who got the suit house by right of inheritance. It has further been contended in the plaint that though the father of the defendants was regular in payment of monthly rent to the plaintiff and obtained receipt thereof, the defendants paid rent up to 31.03.2000 but thereafter, from 01.04.2000 onwards default in payment of rent in respect of the suit house on some pretext or other and though the plaintiff demanded the defendants to pay the arrear rent with effect from 01.04.2000 or to vacate the suit house, they inspite of the assurance given by them that it would be cleared within December, 2001, failed to pay the rent and instead started altering and changing the interior and exterior of the suit house without the permission of the plaintiffs in the month of September, 2002. It is the further case of the plaintiffs that when he objected to such action he was threatened with dire consequences and also threatened not to demand the rent. The plaintiff, therefore, demanded the defendants to vacate the suit house immediately within 30.01.2002 and to hand over the vacant possession. 3. Amongst the three defendants only the defendant No. 2 (petitioner herein) contested the suit by filing written statement admitting that his father Prem Kanta Dutta was inducted as tenant in respect of the suit house by the original owner Inamul Haque Choudhury at the monthly rent of Rs. 70/-. The defendant also admitted that he is tenant under the plaintiff in respect of the suit house wherein he is running the grocery business in the name and style as M/s Kalpana Store. The defendant, however, in the written statement has contended that there was no agreement between the original landlord and his predecessor-in-interest stipulating any particular date when the rent is to be paid and such rent was paid according to the convenience of the original landlord and some times he accepted rent for six months, 18 months, 20 months together. The defendant, however, in the written statement has contended that there was no agreement between the original landlord and his predecessor-in-interest stipulating any particular date when the rent is to be paid and such rent was paid according to the convenience of the original landlord and some times he accepted rent for six months, 18 months, 20 months together. It has further been contended that the plaintiff used to collect rent for the suit house some times on the interval of two years, sometimes 3 years as per his convenience and even when the defendant offered monthly rent to the plaintiff he did not like to receive the same on the plea that the monthly rent is a very paltry amount. According to the defendant, no time and date was fixed for payment of the rent and whenever the rent is collected/paid to the tenant for one/two/three years together, the plaintiff used to issue month wise receipts. It is the further case of the defendant in the written statement that the rent for the period from June, 1998 to March, 2000 was paid by the account payee cheque on 04.03.2000 but the receipts for the period from February, 1997 to March, 2003 were issued by the plaintiff's putting different back date's and delivered at a time to the defendants. The defendant in the written statement has further pleaded that the plaintiff never demanded house rent during the period from 01.04.2000 up to the date of filing of the suit though it is the practice of the plaintiff to demand and collect the rent for a longer period at a time at his convenience. The defendant has further pleaded in the written statement that during the period from 01.04.2000 to the date of filing of the suit he rendered the rent to the plaintiff many times but the plaintiff without showing any signs of refusal only asked the defendant to let the rent accumulated to a good sum and he would than collect the same according to his convenience. The defendant has further contended that as the plaintiff deferred receipt of the rent from 01.04.2000 inspite of tendering the same by him, he deposited the rent in Court for the period from 01.04.2000 to 30.04.2003 in the Court vide N.J. Case No. 169/2003. It has therefore, been contended that the defendant is not a defaulter in respect of payment of rent. It has therefore, been contended that the defendant is not a defaulter in respect of payment of rent. The defendant also denied making any change to the suit house. 4. The learned Trial Court on the basis of the pleadings framed the following issues: 1. Whether there is any cause of action for the suit? 2. Whether the suit is bad for Non-Joinder and Mis-Joinder of necessary parties? 3. Whether the defendants are defaulters in payment of rent in respect of the suit premises? 4. Whether the plaintiff is entitled to recover Rs. 2520/- as arrear rent from the defendant? 5. Whether the plaintiff is entitled to recover compensation @ Rs. 50/- per date w.e.f. 01.04.2000 till eviction? 6. To what relief reliefs the parties are entitled to under the law and equity? The plaintiff in support of his case examined himself and another witnesses besides exhibiting a number of documents. The defendant has also examined himself and exhibited a number of documents. 5. The learned Trial Court upon appreciation of the evidences on record and on hearing the learned Counsel for the parties vide judgment and decree dated 18.10.2004 dismissed the suit of the plaintiff by holding that as there was no fixed mode of payment of rent and the plaintiff accepts the rent for several months at a time from the defendants as per his own convenience and the defendant having deposited the rent from 01.04.2000 in Court, when there is no stipulation to pay the rent by a particular date, he cannot be termed as defaulter in payment of rent in respect of the suit house. Being aggrieved, the plaintiff filed Title Appeal No. 4/2005 in the Court of the learned Civil Judge (Sr. Division) at Jorhat, which was decreed by the learned Appellate Court vide judgment and decree dated 02.07.2005 decreeing the suit of the plaintiff and setting aside the judgment and decree passed by the learned Trial Court dismissing the suit, by holding that there is no specific date for payment of rent and it was the practice of the plaintiff to receive the accommodate rent and, therefore, the rent falls due on the last date of the month of the landlord's demand or on the last date of the month when the tenant offered the rent and the landlord refused to accept it. It has further been held that the rent deposited in Court for the period from 01.04.2000 to 30.04.2003 cannot be termed as valid deposit within the meaning of Section 5(4) of the Act, the said having not been deposited within a fortnight from the last date of the month when according to the defendant, he offered the rent and also on the ground that the defendant did not tender the rent to the landlord before making the deposit in the Court. Hence, the present revision petition under Section 115 of the CPC before this Court. 6. I have heard Mr. A.K. Goswami, the learned Sr. counsel for the petitioner and Mr. D. Das, the learned Counsel appearing on behalf of the opposite party No. 1. The proforma opposite party No. 2 inspite of receipt of notice, did not contest the proceeding. 7. Mr. Goswami, the learned Counsel for the defendant/tenant criticizing the judgment and decree passed by the Appellate Court decreeing the suit of the plaintiff and setting aside the judgment and decree passed by the Trial Court dismissing such suit has submitted that the learned Appellate Court having upheld the finding recorded by the learned Trial Court that there was no fix date for payment of rent, though the tenancy was a monthly tenancy and the rate was Rs. 70/- per month, in view of the conduct of the parties to pay the accumulated rent for several months and acceptance of the same by the landlord and there being no fixed mood of payment of rent, ought not to have allowed the appeal and decreed the suit of the plaintiff/landlord holding the defendant/tenant as defaulter by misreading his plea in the written statement and also by holding that the rent for the period from 01.04.2000 to 30.04.2003 deposited in Court is not the valid deposit within the meaning of the Act, the same having not been offered to the landlord first, by ignoring the legal position that after filing of the suit the tenant is not required to offer the rent to the landlord as it would be a mere formality and, therefore, the deposit of rent in Court after filing of the suit for ejectment without the same being offered to the landlord cannot be termed as not a valid deposit within the meaning of the Act. Referring to the statement made in the written statement to the effect that "during the period from 01.04.2000 to the time of filing of the suit the answering defendant tendered the rent to the plaintiff on many times, but the plaintiff without showing any sign of refusal only said to the answering defendants to let the rent be accumulated to a good sum and he would collect the accumulated rent at any time according to his convenience", Mr. Goswami has submitted that it is apparent from such statement in the written statement that it is the plaintiff, who did not refuse to accept the accumulated rent though tendered and, therefore, there is no question of depositing the same in Court by the defendant/tenant, in view of the legal provision that such rent can be deposited only when there is refusal by the landlord to accept the rent tendered. In the instant case, there being clear finding by both the Courts below that the conduct of the parties is to pay and accept the accumulated rent and there being no fixed date for payment of rent, though it was a monthly tenancy, and such finding having not been challenged by the landlord, the learned Court below ought not to have held the defendant as defaulter in payment of rent, the rent payable from 01.04.2000 having been deposited by him in Court on 20.05.2003, within a fortnight on receipt of the notice of the suit filed by the plaintiff/landlord for ejectment of the defendant on the ground of defaulter. According to Mr. Goswami, in a case where as per practice the accumulated rent is paid and accepted by the landlord and when there is no fixed date for payment of rent and the landlord as per his own convenience collects the accumulated rent, the rent would fall due, for the purpose of the Act, on the last date of the month when the landlord demands such rent or when the landlord refused to accept the same on being tendered by the tenants. In the instant case, there being evidence on record that the landlord as per his convenience collects accumulated rent and there being no fixed date for payment of such rent and also there being no demand from the landlord to pay such rent, the tenant cannot be termed as defaulter in payment of rent when such rent is deposited in Court within a fortnight of receiving the summons in the suit filed by the landlord for his ejectment, as the refusal to accept the rent would be the date when such summons have been served on the defendant/tenant. 8. Mr. Goswami in support of his contention has placed reliance on a decision of the Apex Court in Premchand Ranka v. A. Vasanthraj Khatod and Ors. : (1992)1SCC369 and also the decisions of this Court in Bhawani Sankar Sharma v. On the death of Jugal Kishore Garodia, his heirs and legal representatives Smt. Laxmi Devi Garodia and Ors. reported in (1984) 2 GLR 182; in Muhit Kumar Deb Roy and Ors. v. Gaurangalal Roy (1986) 1 GLR 442 ; in On the death of Upendra Nath Paul his heirs Ranjit Kumar Paul and Ors. v. P. Sen & Company (1990) 1 GLR 418; in Dilawar Hazarika v. Paraminder Singh (1992) 2 GLR 12 and in Tushar Kanti Dey v. Sulata Choudhury and Ors. 2002 (1) GLT 51 : (2002) 1 GLT 361. 9. Mr. Das, the learned Counsel for the plaintiff/landlord, on the other hand, supporting the judgment and decree passed by the learned Appellate Court decreeing the suit of the plaintiff/landlord has submitted that the defendant/tenant in his deposition before the Court has admitted that he has not paid the rent from 01.04.2000 and though the same was offered to the landlord he refused to accept the same. In view of such evidence, according to Mr. In view of such evidence, according to Mr. Das, the defendant ought to have deposited the rent within a fortnight of the last date of the month when such rent was offered by the tenant and refused by the landlord to accept, when by conduct of the parties the accumulated rent was paid and accepted by the landlord and the tenant having failed to deposit the rent in Court within time, is a defaulter within the meaning of the Act, as Section 5(4) of the Act envisaged the protection to the tenant from ejectment provided the tenant pays the landlord the rent lawfully due and payable or deposit such rent in Court within the time allowed under the said provision, when the landlord refused to accept the same. Mr. Das has further submitted that as prior to deposit of the rent on 20.05.2003 in Court by the defendant/tenant due from 01.04.2000 to 30.04.2003 the same was not tendered to the landlord, such deposit cannot be termed as valid deposit within the meaning of the Act, as Section 5(4) of the Act provides for tendering the rent to the landlord before depositing the same in Court. Mr. Das has further submitted that the decision of this Court in Muhit Kumar Deb Roy (supra) that the physical payment or offer by the tenant for every month and/or to wait for rents becoming due, when the suit has already been filed by the landlord for the ejectment of the tenant, would be an idle formality, therefore, the deposit in Court when the rent being offered to the landlord after filing of the suit would be a valid deposit within the meaning of Section 5(4) of the Act, is not a correct proposition of law in view of the clear mandate of Section 5(4) of the Act, which requires offering the rent to the landlord before making a deposit in Court. Referring to the decision of the Apex Court in Dr. Brahmanand v. Smt. Kaushalya Devi and Anr. reported in [1977] 3 SCR 485, on the basis of which a Single Bench of this Court in Muhit Kumar Deb Roy (supra) has held as aforesaid, it has been submitted by Mr. Das that in Dr. Referring to the decision of the Apex Court in Dr. Brahmanand v. Smt. Kaushalya Devi and Anr. reported in [1977] 3 SCR 485, on the basis of which a Single Bench of this Court in Muhit Kumar Deb Roy (supra) has held as aforesaid, it has been submitted by Mr. Das that in Dr. Brahmanand case (supra), the Apex Court keeping in view the strained relationship between the landlord and the tenant because of the institution of the Criminal cases has observed in that case that there is no necessity for the tenant to create a situation of tension and violence by physically offering the rent into the hands of the landlord and hence a correct interpretation of the requirement of offering the rent to the landlord has to be conditioned by the circumstances prevailing between the parties. According to Mr. Das, the Apex Court in the said case has not held that since a suit for eviction is filed by the plaintiff/landlord the rent due and payable by the tenant need not be offered to the landlord prior to depositing the same in the Court. In the instant case, it has been submitted by Mr. Das, that there is no evidence on record that there is strained relationship between the landlord and the tenant and hence the deposit of rent in Court without offering the same to the landlord has rightly been held to be not valid deposit within the meaning of Section 5(4) of the Act. 10. Referring to the pleadings in the written statement filed by the defendant/tenant, it has been submitted by Mr. Das that during the period from 01.04.2000 to the time of filing of the suit the defendant has admitted that the rent was offered to the plaintiff on many times but he did not accept it by saying that he would collect the same after it is accumulated to a good sum, which amounts to refusal by the plaintiff on each time when the rent was offered and, therefore, to get the protection from ejectment on the ground of defaulter under Section 5 of the Act, the defendant is required to deposit the rent within a fortnight from the last date of the month when such rent was offered to the landlord but refused to be accepted by him. In the instant case, the rent from 01.04.2000 to 30.04.2003 was admittedly deposited in Court on 20.05.2003 and hence the defendant is clearly a defaulter and liable to be evicted from the suit house. 11. Referring to the provision of Section 5 of the Act, it has been submitted by Mr. Das that the said provision creates a bar against passing and execution of a decree and order of ejectment against the tenant and the tenant to gets the protection under the said provision of law has to prove that he has paid the rent lawfully due within a fortnight of its falling due or deposited in Court when the landlord refuses to accept the same. According to Mr. Das, where the tenancy is a monthly tenancy and the landlord agrees to accept the rent at the convenience of the tenant or as per his convenience, it would not change the nature of monthly tenancy and, therefore, the tenant is duty bound to offer the monthly rent to the landlord in each month and if the landlord refuses to accept the same, to deposit the same in Court as provided under Section 5(4) of the Act, so as to claim protection from eviction. Mr. Das in that respect has placed reliance on a decision of this Court in Ram Karanjit More v. Keshar Dev Jalan reported in (1996) 2 GLT 526. 12. Referring to the decision of the Apex Court in Masjid Kacha Tank, Nanhan v. Tuffail Mohammed AIR 1991 SC 455 , it has been submitted by Mr. Das that the High Court in exercise of the revisional jurisdiction under Section 115 of the CPC cannot re-appreciate the evidences and interfere with the findings recorded by the learned Court below unless of course, such findings are perverse or there has been non-application of mind by the Court while coming to the conclusion and in the instant case, as the defendant/tenant has failed to demonstrate any perversity or non-application of mind by the Court, the revision petition filed by the defendant/tenant deserves to be dismissed. Mr. Das has placed reliance on the decisions of this Court in Hazi Mahmed Jafor v.Dr. Imran Hussain Choudhury, Ram Karanjit More (supra) and in Rupchand Daftary v. Ashim Ranjan Modak and Anr. Mr. Das has placed reliance on the decisions of this Court in Hazi Mahmed Jafor v.Dr. Imran Hussain Choudhury, Ram Karanjit More (supra) and in Rupchand Daftary v. Ashim Ranjan Modak and Anr. (2000) 2 GLT 75, in support of his contention that to hold the deposit in Court as valid deposit within the meaning of Section 5(4) of the Act, it has first to be offered to the landlord, otherwise deposit made in the Court would not be a valid deposit and in that case the defendant would not be protected from eviction under Section 5 of the Act, the provision being mandatory in nature. 13. The scope of revisional jurisdiction of the High Court under Section 115 of the CPC is very limited. The High Court can exercise the revisional power where the Subordinate Court has exercised a jurisdiction not vested in it by law or has failed to exercise a jurisdiction so vested or has acted in the exercise of its jurisdiction illegally or with material irregularity, provided no appeal lies against the decision of the Subordinate Court, against which order the revision petition has been preferred. In exercise of the revisional power under Section 115 of the CPC the High Court cannot also re-appreciate the evidences on record and interfere with the finding of the learned Court below unless the finding recorded by the learned Court below is perverse or there is non-application of mind on the part of the Court or non-appreciation of the evidence available on record while recording such finding. The Apex Court in Masjid Kacha Tank, Nanhan (supra) has observed that the High Court in exercise of the power under Section 115 of the CPC is empowered to interfere with the findings of fact if the findings are perverse or there has been a non-appreciation or non-consideration of the material evidence on record by the Courts below. It has further been observed that simply because another view of the evidence may be taken is no ground by the High Court to interfere in its revisional jurisdiction. 14. Section 5 of the Act creates a bar against passing and execution of decree and order for ejection of a tenant from any house within the urban areas as defined under Section 2(g) of the Act. 14. Section 5 of the Act creates a bar against passing and execution of decree and order for ejection of a tenant from any house within the urban areas as defined under Section 2(g) of the Act. Such bar created by Section 5 is, however, not applicable in a suit or proceeding for eviction of the tenant from the house instituted by the landlord--(a) where the tenant has done anything contrary to the provision of Clause (m), Clause (o) or Clause (p) of Section 108 of the Transfer of Property Act, 1882 or to the spirit of the aforesaid Clause in areas where the said Act does not apply, or (b) where the tenant has been guilty of conduct which is a nuisance to the occupiers of the adjoining or neighbouring houses or (c) where the house is bonafide required by the landlord either for purposes of repairs or rebuilding, or for his own occupation or for the occupation of any person for whose benefit the house is held, or where the landlord can show any other cause which may be deemed satisfactory by the Court, or (d) where the tenant sublet the house or any part thereof or otherwise transfers his interest in the house or any part thereof without permission in writing from the landlord, or (e) where the tenant has not paid the rent lawfully due from him in respect to the house within a fortnight of its falling due, or (f) where the tenant has built, acquired or been allotted a suitable residence. Sub-section 4 of Section 5 provides that where the landlord refuses to accept the lawful rent offered by his tenant, such rent may be deposited by the tenant within a fortnight of its becoming due, in Court together with the process fees for service of notice upon, the landlord and in that event the tenant cannot be treated as defaulter under Clause (e) of the proviso to Sub-section 1 of Section 5 of the Act. Therefore, to claim protection under Section 5 of the Act from ejectment by a tenant on the ground of defaulter, the tenant must pay the rent lawfully due from him in respect of the house within a fortnight of its falling due and in case of refusal by the landlord to accept such rent, it has to be deposited in Court within a fortnight of its becoming due together with the process fee for service of notice upon the landlord, otherwise the tenant would be a defaulter and liable to be evicted from the rented premises. 15. The Apex Court in Ganpat Ladha v. Sashikant Vishnu Shinde [1978] 3 SCR 198 while dealing with the provisions of the Bombay Rents, Hotel and Lodging House Rents Control Act, (57 of 1947) and the provisions of Sections 12(3) (a) and (b) of the said Act providing for protection of the tenant from eviction till he pays or tendered in Court regularly the rent to the landlord, has held that the protection to the tenant from ejectment is available on certain conditions and those conditions have to be strictly observed by the tenant, who seeks the benefit of the Section. 16. Under Section 5 of the Act, as noticed above, the tenant is protected from ejectment only if he pays the rent lawfully due from him to the landlord in respect of the house within a fortnight or where the landlord refuses to accept such rent, deposit the rent in Court within a fortnight of its becoming due together with the process fees for service of notice upon the landlord. Therefore, the tenant before claiming protection from eviction on the ground of defaulter in payment of rent to the landlord, must prove that he has paid the rent lawfully due to the landlord in respect of the house within a fortnight on its falling due or on being refused by the landlord to accept when such rent was tendered to him, he has deposited such rent within a fortnight of its becoming due, in the Court together with the process fee for service of notice upon the landlord. The said view has also been taken by this Court in Rupchand Daftary (supra) and in Hazi Mahmed Jafar (supra). The said view has also been taken by this Court in Rupchand Daftary (supra) and in Hazi Mahmed Jafar (supra). The Apex Court in Rameswarlal Choudhury v. Ram Niranjan Mom has also observed that where the tenant deposited rent into Court without tendering the same to the landlord, the same would not be the valid deposit within the meaning of Section 5(4) of the Act. 17. In the instant case, it is the finding of fact by both the learned Courts below that though the tenancy was a monthly tenancy according to English calendar month, and the monthly rent was Rs. 70/-, as per conduct of the parties accumulated rent was paid by the tenant and was accepted by the landlord. Such finding has not been challenged by the landlord and hence attained its finality. In the backdrop of such finding it is now required to be seen whether the defendant/tenant is a defaulter within the meaning of the Act. 18. As noticed above, the tenant is required to pay the landlord the rent lawfully due from him in respect of the house within a fortnight of its becoming due or to deposit the same in Court within a fortnight of its becoming due when the landlord refuses to accept such rent on being offered by the tenant. To get a decree for ejectment of a tenant on the ground of defaulter, the burden primarily lies on the landlord to demonstrate that the tenant has not paid the rent or deposited the same in Court as required under the law within a fortnight of its falling due or becoming due. The landlord, therefore, is to prove the date when the rent fell due so as to ascertain as to whether a tenant is a defaulter within the meaning of the Act. In the instant case, it is the finding of fact by both the Courts below that though the tenancy is a monthly tenancy according to the English calendar month, there was no fixed mood or date of payment of rent and as per practice accumulated rent was paid by the tenant and was accepted by the landlord. Such finding of fact, as observed above, has not been challenged by the landlord and hence attained its finality. Such finding of fact, as observed above, has not been challenged by the landlord and hence attained its finality. It appears from the evidences adduced by the parties, as discussed by the learned Courts below, that it was a practice between the parties that the landlord used to accept rent from the defendant sometimes for few months in advance and sometimes for 6 (six) months, sometimes for 11 (eleven) months, sometimes for 18 (eighteen) months and sometimes for 22 (twenty two) months at a time being the accumulated rent and such rents were accepted by the landlord without any objection. In such an eventualities what would be the due date or the date when the rent is taken to be fallen due for the purpose of Section 5 of the Act? 19. A Single Bench of this Court in Bhawani Sankar Sharma (supra) in view of the factual position involved in that case that the landlord used to collect the accumulated rent from the tenant has held that if the landlord does not visit the defendant's place for collecting the accumulated rent as per practice and the defendant, therefore, remit the accumulated rent to the landlord by money order, which was refused to be accepted, the tenant cannot be termed as defaulter, provided such rent is deposited in Court within a fortnight from the date of refusal to accept such rent offered. Another Single Bench of this Court in Ranjit Kumar Paul (supra) has held that when rent was payable according to mutual convenience of the parties, a tenant cannot be termed as defaulter on account of non payment of rent within a fortnight from the end of each month. In Dilawar Hazarika (supra) this Court has held that though generally monthly rent falls due on the last day of the following month, where the parties agree that the monthly rents shall be paid by the fixed date, the rent fall due on the fixed date but where inspite of such agreement the landlord used to collect the rent sometimes for 1 (one) month, sometimes for 2-3 (two-three) months or even more at a time the rent shall be due not on the fixed date but on the last day of the month of landlord's demand. This Court in Tusar Kanti Dey (supra) has also held that it is incumbent upon the Court to determine, on the basis of the evidences available on record, when the rent becomes due for payment by the tenant to the landlord, so as to enable the Court to arrive at a decision relating to the question as to whether the tenant is a defaulter or not. The Apex Court in Premchand Ranka (supra) keeping in view the facts and circumstances of that case as well as the provision of law involved has observed that the tenant in that case is not a wilful defaulter as the tenant used to make payment in lumpsum towards the rent and the landlord used to accept it and such method of payment went on for quite a long time. The decision of the Apex Court, however, being on the facts and the laws applicable in that case, cannot be applied in the present case. In Ram Karanjit More (supra) this Court has held that even if the landlord accepts the rents at the convenience of the tenant, but this cannot change the nature of the monthly tenancy, therefore, the burden is on the tenant to pay the rent to the landlord at the stipulated date. The Court, however, has observed that for ascertaining the mode of payment and default thereof, the Court requires to determine it according to conduct of the parties on the basis of the evidences available on record. 20. In the instant case, as noticed above, the tenant used to pay the accumulated rent to the landlord even for months together at a time and the landlord used to accept the same without any objection. Keeping in view the aforesaid findings recorded by the learned Courts below and also the provisions of Section 5 of the Act, I am of the view that in a situation where the landlord used to collect accumulated rent from the tenant the date when the rent fall due would be the last day of the month in which the landlord demanded the tenant to pay the accumulated rent and in case the tenant before making such demand by the landlord offers such accumulated rent to the landlord, the date when such accumulated rent falls due would be the last day of the month in which the tenant offers such accumulated rent. 21. 21. The tenant for the purpose of getting the protection under Section 5 of the Act has to fulfill the conditions stipulated therein, i.e. to pay the rent to the landlord within a fortnight of the last day of the month in which the landlord made the demand or deposit in Court within a fortnight from the last day of the month of refusal by the landlord to accept the accumulated rent when offered by the tenant. In the case in hand, the plaintiff instituted the suit for eviction of the defendant on the ground of defaulter contending that the defendant has failed to pay the rent from 01.04.2000 to 31.03.2003 inspite of the demand made by the plaintiff. The defendant in paragraph 12(twelve) of the written statement has specifically pleaded as follows: ...During the period from 01.04.2000 to the time of filing the suit the answering defendant tendered the rent to the plaintiff on many times but the plaintiff without showing any sign of refusal only said to the answering defendant to let the rent to be accumulated to a good sum and he would collect the accumulated rent at any time according to his inconvenience.... It is, therefore, the case of the defendant that the rent from the month of 01.04.2000 was offered to the landlord till the time of filing of the suit on many occasions but the plaintiff did not accept it on the pretext of collecting the same at a later date. 22. In Webster's Encyclopedic Unabridged Dictionary the meaning of the word "refuse" is given as - "to decline to accept (something offered)". "Refusal" according to Black's Law Dictionary, 7th Edition means--"the denial or rejection of something offered or demanded." Hence, when the landlord did not accept the rent offered by the tenant, as pleaded by him in the written statement, as quoted above, it amounts to refusal by the landlord to accept the rent offered. It is the case of the defendant in the written statement that he offered such rent on several occasions between 01.04.2000 to the date of filing of the suit. Therefore, he ought to have deposited the rent in Court within a fortnight of the last day of each month when he offered the same, so as to get the protection from eviction under Section 5 of the Act. Therefore, he ought to have deposited the rent in Court within a fortnight of the last day of each month when he offered the same, so as to get the protection from eviction under Section 5 of the Act. But admittedly the defendant/tenant deposited the rent from 01.04.2000 to 30.04.2003 in Court on 20.05.2003 upon receipt of the summons from the Court in the suit filed by the plaintiff for his eviction on the ground of defaulter. 23. That being the position, I am of the view that the defendant/petitioner is a defaulter within the meaning of the Act in respect of payment of rent for the house in question and as such is not entitled to protection envisaged in Section 5 of the said Act. In view of the said findings, the question as to whether after filing of the suit the tenant is required to offer the rent to the landlord before depositing the same in Court has not been gone into having not required to go into such question. Hence, the decisions cited by the learned Counsel for the parties supporting the respective contentions in that regard in Muhit Kumar Deb Roy (supra) and in Dr. Brahmanand (supra) have not been discussed. 24. In view of the aforesaid discussions and the findings recorded above, I am of the view that the learned Appellate Court has not committed any illegality in passing the impugned judgment and decree requiring interference of this Court in exercise of its jurisdiction under Section 115 of the CPC. The revision petition is, therefore, dismissed. No cost. Petition dismissed