JUDGMENT :

1. Heard Mr. C. Baruah, learned counsel for the appellant. Also heard Ms. M. Hazarika, learned Senior Counsel for the respondent.

2. This appeal is filed under Section 100 of the Code of Civil Procedure, 1908 which was admitted on 11.06.2004 by this Court. However, Ms. M. Hazarika, learned Senior counsel has raised a question of maintainability of the present second appeal inasmuch as the original suit was filed under the provision of Assam Urban Areas Rent Control Act, 1972, for declaration, eviction and recovery of arrears of rent and for permanent injunction and no second appeal is provided under the Act’ of 1972.

3. In view of such submission and as agreed to by learned Counsel for the parties, before going to the merit of this case, let this Court first examine the issue of maintainability:-

I. The plaintiffs’ pleaded case was that the plaintiffs are the owner of a plot of land measuring 7 Lecha covered by PP No. 95 of Dag No. 140 and 141 of Marwaripatty Ward, Dibrugarh Town. According to the plaintiff, the plaintiff No. 3 constructed an Assam type shop house over that plot of land and let out a shop premises measuring 5 ft X 4 ft to the defendant and monthly rent was fixed at Rs. 600/- per month and one lease deed was also executed to that effect on 01.05.2002.

II. Thereafter, according to the plaintiffs, the plaintiffs demolished the old Assam type house and constructed one RCC building over the said plot of land consisting eleven rooms in the ground floor. The plaintiffs let out a shop room measuring 50 sq. ft in the aforesaid building to the defendant and monthly rent was fixed at Rs. 1000/-. However, the defendant stopped payment of rent from the month of January, 2009.

III. It is the further case of the plaintiffs that on 29.11.2011, the defendant not only refused to pay the rent but assaulted the mother of the plaintiffs and thereafter, an FIR was filed. Accordingly, the suit was filed.

IV. The defendant contested the suit by filing written statement. The defendant though admitted the tenancy and the monthly rent of Rs. 600/-, however the execution of the deed of lease dated 01.05.2002, was denied by the defendant. The enhancement of rent to Rs. 1000/- per month was also denied. According to the defendant, the plaintiffs never issued rent receipt inspite of the demand of the defendant.

V. Regarding the default, the defendant stated that he tendered the rent for the month of January, 2012 by way of money order but plaintiffs refused to accept the same. Thereafter, the defendant started depositing the monthly rent in the Court through treasury challan.

VI. The learned trial Court came to a conclusion that the defendant has failed to exhibit the rent deposit receipt through Rent Controller and has not called for the records of misc. cases through which the rents were deposited before the Rent Controller to prove that he has complied with the procedure prescribed under Section 5(4) of the Assam Urban Areas Rent Control Act, 1972. It is also the finding of the learned trial Court that, in his cross-examination, the DW-1 has clarified that he does not have any document to prove the payment of rent. It was the finding of the learned trial Court that the defendant even failed to state when the rents were offered after the incident dated 29.11.2011 till the month of January, 2012. Accordingly, the learned trial Court decreed the suit for eviction and arrears of rent of Rs. 36,000/-.

VII. Though the defendant/appellant preferred an appeal before the learned First Appellate Court under section 8 of the Act’1972, which was registered as Title Appeal No. 5/2014, however, in filing such appeal, there was a delay of 193 days.

VIII. The basic ground of such delay in preferring the appeal as explained was that in the last part of June, 2013, the appellant went to chamber of one lawyer with his son and met his junior and brief was also handed over to the junior. Thereafter, they could not make any contact with the Advocate