ARBIND KUMAR TIWARI Vs. MAHADEB SEN

JUDGEMENT

(1.) HEARD learned Counsel for the appellant and the learned Counsel for the respondent. The suit was filed by the plaintiff -respondent for eviction of the appellant/defendant on the ground of default as well as on the ground of personal necessity. The trial Court as also the lower appellate Court have discussed the evidences on the basis of facts revealed that the defendant has defaulted in payment of rent for more than two months and likewise the ground of personal necessity of the suit premises has been adequately made out. Finding on the issue of partial eviction has also been recorded in the judgment of the trial Court, which has been confirmed by the lower appellate Court.

(2.) LEARNED Counsel for the appellant would try to raise a few questions of law stating that the plaintiff had accepted, rent for the month of November 2003 and, therefore, it has to be deemed that he has waived his right to seek eviction on the ground of default for non -payment of rent for the previous months. This issue in my opinion is no more res integra, since it is a settled principle of law under the Bihar Buildings (Lease, Rent and Eviction), Control Act that once a defaulter is always a defaulter and merely acceptance of rent of subsequent months in itself will not be deemed or implied as waiver of the landlords right to seek eviction on the ground of default of rent for more than two months, unless expressly accepted.

(3.) I .A. No. 2681 of 2007 has been filed by the appellant with a prayer for stay of the execution proceedings. The stay petition (LA. No 2681 of 2008) is also dismissed in view of the dismissal of this appeal. However, learned Counsel for the appellant prays at this juncture to consider the fact that the appellants minor children are studying in School and a reasonable period of a least three months be given to the appellant to vacate the suit premises and deliver vacant possession of the same to the respondent.