This appeal has been preferred by the defendant as appellant against the judgment and decree passed by the Additional District Judge, Dhubri in Titile SuitNo.9of 1991 on 23.3.95.

2. The opposite party as plaintiff filed the suit for ejectment of the defendant and for damages for unauthorised use and occupation of the suit premises and for permanent injunction.

3. The plaintiffs case in brief is that he has three Assam type houses at Dhubri Municipality Holding No.83 (New 141) at Ward No. 11 of Dhubri Town as described in the Schedule of the plaint. Out of the 3 houses one is 'L' patern house having 3 rooms and the defendant is in occupation of two rooms of the said house which are suit houses in question. That all the three houses were constructed for residential purpose. There two rooms in question was rented out to the defendant at the monthly rent of Rs.200/- payable within seven days of the next English calender month and with a further condition that the defendant would vacate the suit premises positively by May, 1990; that the defendant failed to act as agreed upon and neither vacated the suit premises nor paid any rent after May, 1990; and that consequently the defendant became defaulter. Further contention in the plaint is that the suit premises is required to the plaintiff for his own occupation as he has no other house at Dhubri, his birth place as wishes to spent rest of his life after retirement with his only son who is a Lecturer in the local BM College now staying in a rented house. That the house in question is in dilapidated condition and required in place of service latrine. He also claimed that being a retired Government Officer he is entitled to the benefit provides under section 5AA (amended) of the Assam Urban Areas Rent Control Act (herein after called 'the Act').

4. The appellant/defendant all along denied the allegation of default and plea of bonafide requirement of the plaintiff.

5. The main issues for consideration before this Court are issue No.5 and 6 relate to the question of default and bonafide requirement.

6. At the outset Mr. Mishra, learned counsel for the appellant submitted that, this was a fit case for remand as the appellant was refused by the trial Court to examine his witness including himself as defendant. That the Additional District Judge failed to consider the circumstances leading to non-appearance of the appellant.

7. Proceeding with the issue No.5, I found that there is no dispute regarding the relationship of landlord and tenant between the parties. It is also an admitted fact that the tenancy was a monthly tenancy at the rate of Rs.200/-PM payable within 7 days of the next succeeding month according to English Calender. In the plaint as well as in his deposition as PW 1, the plaintiff claimed that the defendant defaulted to pay and turned defaulter from 1st June of 1990. The defence stand is that the opposite party respondent received the rent from the defendant regularly and while the plaintiff refused, the defendant (appellant) deposited the rent in the Court. Further averment of the defendant is that as per terms of agreement plaintiff used to receive rent for 3/4 months and therefore the appellant is not a monthly tenant.

8. The appellant as defendant has filed written statement and in para 12 of the same, claimed that while the plaintiff refused to accept the rent he deposited the same in the Court. I have examined the contents of the written statement and the deposition of the PWs and also the plaint.

9. Payment of rent is a condition of tenancy and for the breach of the condition the tenant may be evicted, if he breach the condition. Now from the conduct of the parties the Court required to examine whether due to occasional indulgence of the landlord rent is paid sometimes beyond a month for 3/4 months together and whether in such a case plea of monthly tenancy can be set aside. In this case as it transpires, there is no written lease of agreement between the parties and admitted

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