1. Whether deposit of rent in court under Section 5(4) of the Assam Urban Areas Rent Control Act, 1972 within a fortnight of its falling due from the due date mentioned in the written agreement is required although the parties by subsequent conduct and understanding over long period gave up the due date articulated in the written agreement is the crux of the present case.

2. The opposite parties herein as plaintiffs instituted Title Suit No. 4/2005 in the court of learned Civil Judge (Senior Division) at Goalpara praying for a decree of eviction against the present petitioner on the ground of default. The suit was subsequently transferred to the court of the learned Munsiff No.2 at Goalpara on enhancement of pecuniary jurisdiction of the court of Munsiff and thereupon the suit was renumbered as Title Suit No.59/2006 of that court. It was the case of the plaintiffs that the defendant became tenant with respect to the suit premises with effect from 01.11.1987 under the predecessor of the plaintiffs at a monthly rental of Rs.1600/- payable within first week of next month as per English calendar. The agreement was for a period of three years and was supposed to expire on 31.10.1990. It was agreed that in case of renewal of the tenancy there shall be an enhancement of rent by 15%. After death of the original landlord the plaintiffs became the landlord and were realizing rent. However, a fresh agreement was executed on 01.06.1998 raising the monthly rental to Rs.2500/- as agreed upon. The defendant paid rent upto September, 2000 but thereafter defaulted. After long time the defendant filed Misc. N.J. Case No. 11/2004 in the court of learned Civil Judge No.1 at Goalpara and deposited rent for the months of April, 2004 to July, 2004 at the rate of Rs.2875/- per month without considering the 15% enhancement as stipulated and without renewal of tenancy. Having received the notice of the aforesaid N.J. case the plaintiff found that the defendant was liable to make payment of arrear rent to the tune of Rs.45,875/- and that they were defaulter. Accordingly, suit was instituted for eviction of the defendant from the suit premises along with realization of arrear rent.

3. On being summoned the defendant appeared and submitted written statement denying the allegation that he was a defaulter. It was specifically pleaded that there was no fixed mode of payment. The landlord used to reside at Delhi and used to collect rent for months together as per the convenience of the parties. As and when the rents were demanded the defendant paid the same regularly. The plaintiffs did not approach the defendant for execution of a fresh agreement after expiry of the agreement dated 01.06.1998 but subsequently plaintiff No.2 approached the defendant with a new agreement of lease terminable after a year to which the defendant did not agree. At this the defendant was informed that an eviction suit will be instituted against him. Compelled, the defendant started depositing rent in court.

4. On the basis of the aforesaid pleadings of the parties, following 7 issues were framed by the learned trial court:-

“(1) Whether there is any cause of action for the suit?

(2) Whether the suit is maintainable in the present form?

(3) Whether all the plaintiffs are the heirs of Late Manik Chand Kucheria?

(4) Whether the defendant is a tenant under the present plaintiffs for the suit premises?

(5) Whether the defendant is a defaulter in payment of rent for the suit premises?

(6) Whether the plaintiff is entitled for a decree as prayed for?

(7) To what relief/reliefs parties are entitled to under law and equity?”

5. Plaintiffs examined five witnesses and adduced some documentary evidence. The defendant examined as many as four witnesses and also introduced some documents.

6. Learned trial court after consideration of the evidence led by the parties found that by Ext-E defendant paid rent from 1st January, 2004 to 31.03.2004 at the rate of Rs.2875/-. According to the defendant, plaint