CHARAN DAS Vs. FAZAL HUSSAIN AND ANOTHER

JUDGEMENT

(1.) Heard learned counsel for the parties. The trial court decreed the suit of the respondents/plaintiffs/landlords for eviction of the appellants/tenants vide judgment and decree dated 16.5.2006 on the ground of the personal bonafide necessity of the plaintiffs and because of committing default in payment of rent by the appellants/tenants and further because of making material alteration in the suit premises. The trial court's judgment and decree dated 16.5.2006 was upheld by the appellate court vide judgment and decree dated 18.1.2010. Hence, this second appeal.

(2.) I considered the submissions of learned counsel for the parties and perused the facts of the case as well as the impugned judgments. So far as default in payment of rent by the appellants is concerned, that fact cannot be denied and, therefore, the appellants took the plea that the respondents waived their right to evict the appellants from the suit premises on the ground of default. However, the said plea has not been taken by the appellants before the trial court or before the first appellate court. The order of striking off the defence attained finality and legality of that is not under challenge in view of the fact that the appellants are only challenging that the respondents waived their right to evict the appellants from the premises in question on the ground of default. In view of the fact of attaining finality, the appellants cannot be heard on the issue of commission of default. Furthermore, there is no conscious waiver of the respondents so far as the appellant's default in payment of rent is concerned nor there is implied waiver in any manner.

(3.) The other questions are pure questions of fact and which have been assailed only on the basis of appreciation of evidence which is not permissible under Section 100 CPC. The two courts below have considered the entire facts and evidence and the concurrent finding of fact cannot be interfered unless substantial questions of law arise which is not here in the present case. Consequently, this second appeal deserves to be dismissed and hence, dismissed.