JUDGMENT Nagendra Prasad Singh. J. The defendant is the appellant. The plaintiff respondents filed a suit (Title Suit no. 34 of 1966) in the court of Munsif, Gaya for the eviction of the appellant from a shop with godown on the ground floor of Holding No.1, Ward No. IV on Safayat Ali Road in the town of Gaya, fully described in Schedule A of the plaint. There was also a prayer for decree for Rs. 110/-as arrears of rent and Rs. 165/-by way of damages, details whereof have been given in the Schedules of the plaint. 2. According to the plaintiffs, the aforesaid shop in question belonged to them and the defendant appellant had been inducted therein as a monthly tenant and he had to pay a rent of Rs. 55/-per month. The tenancy was to run according to the Hindi Calendar. It is the case of the plaintiffs that the appellant defaulted payment of rent since 1st Baisakh 2022 Sambat (16. 4. 1965) and he failed to pay the arrears of rent for more than two months. Thereafter, the plaintiff sent a notice dated 18.9.1965 in accordance with section 106 of the Transfer of Property Act, requesting the defendant-appellant to vacate the premises in question. by 30th of Ashwin 2022 Sam bat (10.10.1965). This notice under section 106 of the Transfer of Property Act, was tendered to the defendant-appellant who refused to accept the same on 25.9.1965. When .the premises in question was net vacated by the defendant, the aforesaid suit was filed on 5.2.1966 for the relief mentioned above. In the suit, apart from default in payment of rent, eviction was also sought for on the ground that there was a personal necessity. 3. The defendant challenged the claim made on behalf of the plaintiffs on several grounds, including that there was no valid service of notice under section 106 of the Transfer of Property Act, as well as on the ground that there was no arrear of rent so as to give a cause of action for the suit. The defendant also asserted that there was no personal necessity. The defendant. The defendant also asserted that there was no personal necessity. The defendant. while admitting that rent from 1st of Baisakh, 2022 Sambat (16.4.1965) upto Ashwin Sudi 9, 2022 Sambat (4.10.1965) bad fallen in arrears having not been paid or •tendered in accordance with law, took a stand that as the plaintiffs accepted rent for four months which had fallen in arrears on 4.10. 1965 which was offered by the defendant, there was no arrear thereafter so as to male the defendant liable for eviction. It was pointed out that this payment had been made before the expiry of the period mentioned in the notice under section 106 of the Transfer of Property Act. The result thereof will be that the notice itself will be deemed to have been withdrawn and waived. 4. The trial court, on a consideration of the materials on the record, came to the finding that the notice under section 106 of the Transfer of Property Act, was valid and there was no waiver on the part of the plaintiffs. Learned Munsif also held that the defendant-appellant was no arrears for more than two months and was liable to be evicted. The trial court, however, negatived the claim of the plaintiffs regarding personal necessity. The aforesaid findings were affirmed by the court of appeal below; hel1ce, this second appeal on behalf of the defendant. 5. The main point that has been urged on behalf of the appellant is that the only ground on which the suit for eviction has been decreed is that the defendant not having paid rent for more than two months was In arrears, and, as such, liable to be evicted. but in the facts and circumstances of the case there was no arrear so as to give a cause of action to plaintiffs. This argument has been advanced on the basis that the defendant admittedly did not payor tender the rent for four months, i. e., more than two months, in accordance with the requirements of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (hereinafter to be referred to as the Act), but on 4.10.1965 in a lump sum he paid Rs.220/., the rent for four months which was accepted by the plaintiffs. This acceptance was after giving of notice under section 106 of the Transfer of Property Act. This acceptance was after giving of notice under section 106 of the Transfer of Property Act. According to the learned counsel appearing for the appellant, the effect of this acceptance will be that on 10. 10. 1965. when the period of notice under section 106. expired. there was no arrear. Learned counsel submitted that this argument is independent of an argument of waiver, which had been urged in the courts below. In support of this contention, reliance was placed on clause (d) of section 11 (1) of the Act, which is as follows :- "II. Eviction of tenants-(l) Notwithstanding any thing contained in any contract or law to the contrary but subject to the provisions of the Industrial Disputes Act, 1947 and to those of section 12, where a tenant is in possession of any building, he shall not be liable to eviction therefrom except in execution of a decree passed by the court on one or more of the following grounds :- xx xx xx xx (d) where the amount of two months' rent lawfully payable by the tenant and due from him is in arrears by not having been paid within the time fixed by contract or, in the absence of such contract, by the last day of the month next following that for which the rent is payable or by not having been validly remitted or deposited in accordance with section 13." Learned counsel pointed out that section 11 does not clothe the landlord with any right, but it only provides protection to the tenant so that he is not liable to eviction from the building in question except in execution of a decree passed by the court on one or more of the grounds mentioned in the said section. As clause (d) of section 11 (1) provides that the tenant "is in arrears", it means that the two months' rent lawfully payable by the tenant to the landlord must be in arrears at least on the date of the institution of the suit, if not on the date of passing of the decree. According to him, the default might have occurred by not paying two months' rent by the last day of the month next following, but if that amount has been paid later at any stage, then it cannot be held that two months' rent payable by the tenant "is in arrears". According to him, the default might have occurred by not paying two months' rent by the last day of the month next following, but if that amount has been paid later at any stage, then it cannot be held that two months' rent payable by the tenant "is in arrears". In order to appreciate this argument, clause (d) of section 11 (1) of the Act, needs a closer scrutiny. The clause refers to two types of tenants one tenant who has to pay rent "within the time fixed by contract" and the other where no such time is fixed, he has to pay by the last day of the month next following for which the rent is payable. There can be a valid payment by validly remitting or depositing the rent in accordance with section 13 of the Act. On a plain reading of clause (d) of section 11 (1) of the Act, so far as the case where rent is to be paid within the time fixed by the contract is concerned, there cannot be any doubt that once the rent is not paid within that time the default occurs, and in such cases, the tenant will be deemed to be in arrears by not having paid the rent within the time fixed. Can it be said in such a case that if rent is paid later after the expiry of the time fixed by the contract, it will be deemed there bas been no default? The answer is in negative I Once the rent is not paid by the time fixed, default takes place. Subsequent acceptance for that period has to be decided on the principle of waiver. But, by raying that very amount at a later date will not have the effect as if there was no default. Similarly. if no time is fixed by contract for payment of rent then, according to clause (d) of section 11 (1) it has to be paid by the "last day of the month next following that for .which the rent is payable" this time limit has been fixed by the Statute itself. Similarly. if no time is fixed by contract for payment of rent then, according to clause (d) of section 11 (1) it has to be paid by the "last day of the month next following that for .which the rent is payable" this time limit has been fixed by the Statute itself. The result will be that if the tenant does not pay two months' rent by the last day of the month next following, a default takes place within the meaning of clause (d) of section 11 (1) and since that day, in the eye of law, he will be deemed to be in arrears If the other construction is put, as suggested on behalf of the appellant, it will lead to an anomalous position, because if the landlord accepts the rent under protest or in pursuance to the direction of a court, even here at the time of hearing of the suit a tenant can urge that on that date there was no arrear, and, as such, there was no cause of action for the suit. In my opinion, when clause (d) says about the tenant that he is in arrears, it only means that the tenant will be deemed to be in arrears having not paid two months lent either within the time fixed by the contract or in absence of such a contract, by the last day of month next following, or by not having validly remitted or deposited in accordance with section 13. Any such defaulted amount being paid later will not make the case of no default or a case of no arrear, but it has to be decided on the principle of waiver as to whether the plaintiff having accepted the rent later, has waived his right to evict the defendant. My view is supported by the observations of a Bench decision of this Court in Rameshwar Modi Vs. Harihar Bhagat and others. In that case also one of the plea raised on behalf of the defendants was that they had deposited the rent before the institution of the suit, and, as such, they were not liable to be ejected on the ground of nonpayment of rent. While repealing this argument, it was observed by Tarkeshwar Nath, J. as follows :- "I must say, this view is entirely erroneous and cannot be affirmed. While repealing this argument, it was observed by Tarkeshwar Nath, J. as follows :- "I must say, this view is entirely erroneous and cannot be affirmed. If this view is correct, it would mean that a cause of action accrues to a plaintiff landlord on account of non-payment of rent for a period of two months; but if the tenant deposits the rent before the institution of the suit then the cause of action comes to an end and the plaintiff is to be non-suited. This is neither the scheme of the Act, for the purpose for enacting Sec. 11 (1) (d) of the said Act. is deposit made before a suit is taken into account after the accrual of the cause of action, it would mean giving incentive to the tenant in not paying rent properly and regularly within time." A similar view was expressed in another Bench decision of this Court in Mahamood Hassan Vs. Parsutam Pande where it was pointed out that if two months' rent is not paid or remitted or deposited in accordance with section 13 of the Act, then default occurs within the meaning of clause (d) of section 11 (I) The scope of clause (d) of section 11 (J) was also construed in the case of Purushottam Das Kapoor Vs. Bajnath Prasad Sah where Ramaswami. C. J. and Untwalia. J. pointed out a vital change in that section by the amendment of 1955 and further pointed out that if a time is fixed by contract, rent must be paid within that time and if it is not paid then the later part of clause (d) is attracted and the amount of rent must be paid by the last day of the month next following that for which the rent is payable. If the landlord refuses to accept the rent which is tendered by the tenant, then the Statute further provided that the rent may be remitted or deposited in accordance with section 13 of the Act. The earlier cases which had taken the view that later when jump sum amount is tendered there may not be default were held to have been wrongly decided. This view was also approved by a Full Bench decision of this Court in Niranjan Pal alias Niranjan Kumar Pal Vs. The earlier cases which had taken the view that later when jump sum amount is tendered there may not be default were held to have been wrongly decided. This view was also approved by a Full Bench decision of this Court in Niranjan Pal alias Niranjan Kumar Pal Vs. Chaifanya lal Ghosh; where it was pointed out that the contract referred to in clause (d) is an express and not an implied contract. Once the payment or the remittance is not in terms of clause (d) there is a default and the argument of an implied contract for payment of rent for more than two months at a time was rejected. In my view, once a default occurs by non-payment of two months' rent by the tenant, that amount will be deemed to be in arrears and unless the right to evict for this default, which has accrued to the landlord, is waived by mere acceptance of rent it cannot be held that on the date the decree is passed, two months rent is not in arrears. Accordingly, hold that there was non-payment of rent within the meaning of clause (d) of section 11 (1) of the Act, giving a cause of action to the plaintiffs. Now. I shall examine whether this right has been waived by the plaintiffs by acceptance of four months rent on 4. 10. 1965. 6. In the courts below this point was vehemently urged on behalf of the defendant. It was pointed out that as the plaintiffs had accepted four months rent on 4.10.1965 wit hour protest, the notice under section 106 of the Transfer of Property Act, will be deemed to have been withdrawn and waived. Learned counsel appearing on behalf of the appellant, however, frankly conceded that in the facts and circumstances of the case, there will be no question of waiver. Learned counsel had to concede, in view of section III read with section 13 of the Transfer of Property Act, according to which the question of waiver will arise only after the expiration of the period given in the notice under section 106 of the Transfer of Property Act, i. e., after the determination of the tenancy. Admittedly, the period of notice was to expire on 4.10.1965. The four months' rent was accepted on 4.10.1965, i. e prior to the determination of tenancy. Admittedly, the period of notice was to expire on 4.10.1965. The four months' rent was accepted on 4.10.1965, i. e prior to the determination of tenancy. Section 113 of the Transfer of Property Act, is as follows :- "A notice given under section 111, clause (h) is waived, with express or implied consent of the person to whom it is given, by any Act, on the part of the person giving it showing an intention to treat the lease as subsisting. In view of this section, by mutual agreement, express or implied, the person giving notice may express his intention to treat the lease as subsisting. The two illustrations given under section 113 makes it abundantly clear that the conduct of the person giving notice is relevant only after the expiration of the notice. In my view, it is difficult to hold that merely because four months rent was accepted on 4.10.1965 after the notice under section 106 of the Transfer of Property Act, had been given to the defendant it will amount by itself that the plaintiffs by accepting rent wanted to treat the lease as subsisting. Apart from this, it has been pointed out on several occasions that acceptance of rent after the expiry of the period of notice is one of the circumstances from which a court can infer that the landlord later purported to waive the notice for eviction. But, that by itself is not a conclusive circumstance. It has to be decided on the facts and circumstances of each case. Reference in this connection may be made to a Bench decision of this Court in the case of Puran Mal Jaiswal v. Onkar Nath Chaudhary and others5 where it was observed: "When it is a question of intention, it is plain that not even the payment and acceptance of rent by the landlord after the notice to quit, much less a mere demand of rent, necessarily waives the notice. The question under Section 113 is whether the Act, of landlord. manifested either by acceptance of rent or by demand of rent, is such as necessarily leads to the inference that there was an intention of creating a renewal of the tenancy or as treating the tenant as still subsisting. Therefore, neither the acceptance of rent nor the demand of rent is conclusive on the question of waiver." 7. manifested either by acceptance of rent or by demand of rent, is such as necessarily leads to the inference that there was an intention of creating a renewal of the tenancy or as treating the tenant as still subsisting. Therefore, neither the acceptance of rent nor the demand of rent is conclusive on the question of waiver." 7. On behalf of the appellant, reliance was placed on the judgment of the Supreme Court in Vilhal Vasudeo Kulkarni and others V. Maruli Rama Nar;ane and others. There, while construing the Bombay Tenancy and Agricultural Lands Act, it was observed that it would lead to a very astonishing result that even where the tenancy has paid up all the arrears and the landlord has accepted them, still the landlord will have the right to evict the tenant. It was pointed out that in such a situation, the reason for terminating the tenancy and hi s cause of action for an action for eviction has disappeared by his acceptance of the arrears due to him. In my opinion, this case is of no help to the appellant as I have pointed out that the language of clause (d) of section 11 (1) of the Act, is different. Clause (d) itself prescribes under what condition a default will occur and a cause of action will accrue to the landlord and unless that right is waived, merely by acceptance of rent at a later period will not made it a case of no default I have already held that there is no waiver in the facts and circumstances of the case. As such, the finding of the courts below that there has been a default in the payment of rent by the defendant-appellant making him liable to be ejected has to be affirmed. 8. It was then submitted that the notice under section 106 of the Transfer of Property Act, itself was invalid with the result that the suit of the plaintiffs was not maintainable. In this connection, learned counsel submitted that on the materials on record the notice appears to have been tendered to the defendant on 27.9. 1965, and, as such, the statutory period prescribed under section 106 could not have been completed by the 30th Asbwin 2022 Sam bat, which is equivalent to 10.10.1965. In this connection, learned counsel submitted that on the materials on record the notice appears to have been tendered to the defendant on 27.9. 1965, and, as such, the statutory period prescribed under section 106 could not have been completed by the 30th Asbwin 2022 Sam bat, which is equivalent to 10.10.1965. This very argument was advanced on behalf of the appellant before the two courts below, which, on a consideration of the evidence on the record, have come to the conclusion that the notice had been tendered on 25.9.1965 and not on 27.9.1965, as contended on behalf of the appellant. The courts below have referred to different materials on [the point and this finding will be a finding of fact, which cannot be re-opened in the second appeal. Once it is held that the notice in question bad been tendered on 25.9. 1955, admittedly there is no other infirmity in the notice. 9. Before 1 part with the judgment, I may refer to one of the Submissions made on behalf of the plaintiff-respondents. Mr. Lal Narayan Sinha appearing on their behalf at the outset pointed out that now there was no necessity of examining the present case in the light of the provisions of the Act. He pointed out that the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 was a temporary Act, and was being extended from time to time, but during the pendency of the appeal before this Court the Act, has ceased to be in force. Learned counsel then submitted that under the changed situation, the suit of the plaintiffs can succeed it bout proving that the defendant-tenant is liable to be evicted on one or more of the grounds mentioned in Section 11of the Act. Till the Act, was in force, it had provided a bar over the power of the court to decree a suit of the plaintiff for eviction unless the decree is passed on one or more of the grounds mentioned in section 11. Once the Act, expires, now a plain suit for eviction by the landlord against the tenant is maintainable. In this connection, learned counsel also pointed out that this situation will be applicable even to suits which had been filed earlier, but appeals against the judgment and decree in such suits are pending and that they will not be saved by the provisions of the General Clauses Act. In this connection, learned counsel also pointed out that this situation will be applicable even to suits which had been filed earlier, but appeals against the judgment and decree in such suits are pending and that they will not be saved by the provisions of the General Clauses Act. Proviso to sub-section (3) of section 1 of the Act, itself prescribes what are to be saved after the expiration of the Act, in question. The said proviso is as follows : "Provided that the expiration of this Act, under the operation of this sub-section shall not- (a) render recoverable any sum which during the continuance thereof was irrecoverable or affect the right of a tenant to recover any sum which during the continuance of this Act, was recoverable by him thereunder; or (b) affect any liability incurred under this Act, or any punishment incurred in respect of any contravention of this Act, or any order made thereunder; or (c) affect any investigation or legal proceeding in respect of any such liability or punishment as aforesaid; and any such investigation or legal proceeding may be instituted, continued or enforced and any such punishment may be imposed, as if this Act, had not expired." Learned counsel pointed out that suit for eviction by the landlord is not saved under and of the three clauses aforesaid. In my opinion, there is no necessity of deciding this point in the present appeal as the appeal has been decided in favour of the plaintiffs on the basis of the cause of action mentioned by them in The plaint. 10. In the result, the appeal fails, and it is dismissed with costs. P. S Sahay, J. I agree. Appeal dismissed.