JUDGMENT : H.L. Agrawal, C.J. - This writ application by the tenant raises an interesting question as to what would constitute "wilful default" within the meaning of the proviso to Section 7(2) of the Orissa House Rent Control Act, 1967 ('Act' for short). The authorities under the Act have held the Petitioner a wilful defaulter and have passed a decree for his eviction from the suit premises, and accordingly the Petitioner has come to this Court. 2. The facts: The Petitioner is a tenant in respect of a room in the ground floor of a double storied pucca building bearing Holding No. 89 in Ward No. 5 of Khurda Notified Area Council on a monthly rent of Rs. 30/-. In paragraph-(f) of the application filed by the landlord in the Court of the Sub-Divisional Judicial Magistrate, Khurda (Controller under the Act) on 3rd July, 1978, the following allegations were made: The opposite party being a mischievous man has violated all the conditions. He is in the habit of defaulting in payment of rent on repeated request and demand of applicant. The opposite party pays rent after two-to-three months. As such he was being granted receipt soon after such payment. Now he is in default of making payment of rent to the applicant since the month of December, 1977. From the above recital, it is obvious that the landlord sought an order of eviction on the alleged default since December, 1977. He also advanced the ground of necessity for personal occupation. In the written statement, the Petitioner controverted the allegation in these words: ... The opposite party offers regular rent in every month and pays in fact the rent of the room to the Petitioner. The Petitioner and prior to her the previous land lords being over-burdened in their business management, do not find time to grant receipt regularly immediately on receiving the rent of the room from the opposite party. Specially the Petitioner directs the opposite party to take the receipt subsequent to the said payment of rent.... The opposite party is never in default in making payment of rent from December, 1977. Specially the Petitioner directs the opposite party to take the receipt subsequent to the said payment of rent.... The opposite party is never in default in making payment of rent from December, 1977. xxx The Petitioner with the intention to oust the opposite party by any means is not accepting the rents of the said rooms from the opposite party even though the opposite party offers the same and sends them through M.O. from the month of December, 1971 on the ground of taking higher rate of rent. 3. The Controller in his order (Annexure-I) recorded inter alia the following findings for passing the order of eviction: i) The tenant is a wilful defaulter in payment of rent. (ii) The room in question is required for the occupation of the Petitioner. The Petitioner filed an appeal before the appellate authority and took the stand that he was not a defaulter since December, 1977 as the landlord refused to accept the rent tendered by him by money orders. This plea found favour with the appellate authority (I shall deal with the details of the tenders hereinafter) but he has held the Petitioner a defaulter for a period prior to December, 1977 on consideration of the belated payments of rent made by him for the said period. In other words, the appellate Court granted eviction on a ground and cause of action not pressed into service by the landlord. 4. It is not disputed that prior to the initiation of the eviction proceeding in question, the rent for the entire period up to December, 1977 had been duly accepted by the landlord although the payments were made after incurring the defaults. 5. At this stage, it is necessary to refer to the relevant provision in the Act. One of the grounds for eviction of the tenant is default in making payment of rent. Section 7(2)(i) of the Act is in these words: 7. 5. At this stage, it is necessary to refer to the relevant provision in the Act. One of the grounds for eviction of the tenant is default in making payment of rent. Section 7(2)(i) of the Act is in these words: 7. (2) If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied (i) that the tenant has not paid or tendered the rent due from him in respect of the house within the thirty days after the expiry of the time fixed in the agreement of the tenancy with the landlord for payment of rent or in the absence of any such agreement by the last day of the month next following that for which the rent is payable; or xx xx xx he shall make an order directing the tenant to put the landlord in possession of the house and if the Controller is not so satisfied, he shall make an order rejecting the application: Provided that in any case falling under Clause (i) if the Controller is satisfied that the tenant's default to payor tender rent was not wiful, he may give the tenant a reasonable time not exceeding fifteen days to payor tender the rent due from him, or the landlord up to the payment or tender the application shall be rejected. 6. Mr. Ratho, learned Counsel appearing for the tenant Petitioner submitted that the appellate authority was wholly unjustified in passing the order of eviction as per Annexure-2 on the ground of default which was not pleaded, thus making out a third case. On merits of the order, he placed strong reliance on the case of S. Sundaram Pillai and Others Vs. `R. Pattabiraman and Others, and submitted that as the entire rent had already been paid prior to the filing of the case by the landlord, on the date of filing of the suit no cause of action in present having arisen, the suit should have been dismissed on this short ground alone as being not maintainable. 7. The case before the Supreme Court arose out of Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. There also the expression "wilful default" in payment of rent by the tenant has been defined in Section 10(2) with a proviso. 7. The case before the Supreme Court arose out of Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. There also the expression "wilful default" in payment of rent by the tenant has been defined in Section 10(2) with a proviso. While construing the expression "wilful default", the Supreme Court ruled: A consensus of the meaning of the words "wilful default" appears to indicate that default in order to be wilful must be intentional, deliberate, calculated and conscious, with full knowledge of legal consequences flowing therefrom. Taking for instance a case where a tenant commits default after default despite oral demands or reminders and fails to pay the rent without any just or lawful cause, it cannot be said that he is not guilty of wilful default because such a course of conduct manifestly amounts to wilful default as contemplated either by the Tamil Nadu Act or other State Acts which are in pari materia. It may be mentioned here that the Supreme Court noticed various other State laws in paragraph 16 of the report including the provisions of the Orissa Act in order to understand the contextual background of the words "wilful default." 8. In order to distinguish the case of the Supreme Court, learned Counsel for the landlord referred to the proviso to Section 10(2) of the Tamil Nadu Act which is like the proviso to Section 7(2) of the Orissa Act and reads as follows: Provided that in any case falling under Clause (i) if the Controller is satisfied that the tenant's default to payor tender rent was not wilful, he may not-withstanding anything contained in Section 11, give the tenant a reasonable time not exceeding fifteen days, to payor tender the rent due by him to the landlord up to the date of such payment or tender and on such payment or tender, the application shall be rejected. The Supreme Court has laid down the ratio of its decision in paragraph-62(1) & (2) in these words: (1) Where no notice is given by the landlord in terms of the explanation, the Controller having regard to the four conditions spelt out by us has the undoubted discretion to examine the question as to whether or not the default committed by the tenant is wilful. If he feels that any of the conditions mentioned by us is lacking or that the default was due to some unforeseen circumstances, he may give the tenant a chance of locus poenitentiae by giving a reasonable time, which the statute puts at 15 days and if within that time the tenant pays the rent, the application for ejectment would have to be rejected. (2) If the landlord chooses to give two months' notice to the tenant to clear up the dues and the tenant does not pay the dues within the stipulated time of the notice then the Controller would have no discretion to decide the question of wilful default because such a conduct of the tenant would itself be presumed to be wilful default unless he shows that he was prevented by sufficient cause or circumstances beyond his control in honouring the notice sent by the land lord. Ultimately, the Supreme Court held that though the tenant had committed a default but he had paid the entire rent well before the filing of the suit by the landlord. Thus, the suit for eviction was filed by the landlord not on the ground of arrears but to penalise the tenant for having defaulted in the past. Such; suit cannot be entertained because once the entire dues are paid to the landlord, the cause of action for filing a suit completely vanishes. On the authority of this decision, it was forcefully submitted by the learned Counsel for the Petitioner that in any view of the matter, the rent tin December, 1977 having been already paid by the Petitioner and accepted by the landlord much before the initiation of the suit for eviction the Petitioner could not be held to be a wilful defaulter. 9. On behalf of the landlord, however, reference was made to the following cases of this Court: (1) Jammula Narasimhulu v. Kotini Sitaram and Anr. 31 (1965) C. L. T. 331. (2) Menakarani Hazra and Ors. v. Mohinder Singh Jaggi and Anr. 34 (1968) C. L. T. 227. (3) Sushil Chandra Palit v. Dhani Behera and Ors. ILR 1971 Cutt 1211. (4) Srimati Parbati Goenka v. Giridharilal Kawantia and Ors. 1972 (2) C.W.R. 1120. (5) Md. Kamruddin Jamma Vs. Ganga Prasad and Others, . The first case is of no relevance at all. In the second case, however, the following observations were made: ... (3) Sushil Chandra Palit v. Dhani Behera and Ors. ILR 1971 Cutt 1211. (4) Srimati Parbati Goenka v. Giridharilal Kawantia and Ors. 1972 (2) C.W.R. 1120. (5) Md. Kamruddin Jamma Vs. Ganga Prasad and Others, . The first case is of no relevance at all. In the second case, however, the following observations were made: ... There is no provision that arrears must be outstanding by the date of the application for eviction. In the next case also the following favourable observation to the landlord was made: In this case the tenant is guilty of conscious violation of his obligation and of reckless indifference. He was a chronic defaulter. If the totality and cumulative effect of all the circumstances and the prior conduct of the tenant are taken into account there is no escape from the conclusion that the tenant was a wilful defaulter. There is nothing in the written statement or in evidence to explain the chronic defaults. In the fourth case it was observed that a landlord accepting rent from the tenant after the due date could not be estopped from initiating a proceeding for eviction on the ground that the tenant was a wilful defaulter. In the last case the following observation, which may be said to be in favour of the landlord was made: ... It could not be said that by accepting rent at intervals the landlord had waived his right to evict the tenant under the Act. Mere acceptance of rent at intervals would not constitute waiver. 10. Mr. Mukherjee, learned Counsel for the landlord, also placed reliance on the case of Mangilal Vs. Suganchand Rathi a decision by a Bench of five Judges, and submitted that if the later decision, S. Sundaram Pillai and Others Vs. `R. Pattabiraman and Others. this decision has not been noticed and so it should not be held to be a binding authority. It is necessary to notice in brief the facts of this case. Suganchand Rathi a decision by a Bench of five Judges, and submitted that if the later decision, S. Sundaram Pillai and Others Vs. `R. Pattabiraman and Others. this decision has not been noticed and so it should not be held to be a binding authority. It is necessary to notice in brief the facts of this case. It was from the Madhya Pradesh High Court, it was held in this case that the ground set but in Section 4(a) of the M.P. Accoipmodation Control Act, 1955 need not be shown by the landlord to exist at the date of the institution of the suit and that all that was necessary for him to establish was that the tenant was in fact .in arrears, that he was given one month's notice to pay up the arrears, and that in spite of this, he failed to pay the arrears within one month of service of notice on his. Section 4(a) does not mean that the ground on which the eviction is claimed must subsist till the date of the suit. It reads as follows: No suit shall be filed in any civil Court against a tenant for his eviction from any accommodation except on one or more of the following,grounds: (a) that the tenant has failed to make payment to the landlord of any arrears of rent within one month of the service upon him of a written notice of demand from the landlord. 11. On the face of it, the provisions of the M.P. Act did not contain either any proviso or any explanation as in the statutes which were noticed by the later decision of the Supreme Court in t he year 1985. This fact has been indicated in paragraph 6 of the judgment itself in these words: ... It is well to bear in mind that this provision is quite different from the analogous provisions of the Bombay Rent, Hotel and Lodging House Rent (Control) Act, 1947, or the West Bengal Premises Tenancy Act, 1956. The protection to tenants given by these Acts is more extensive and a tenant is given time to pay the arrears even after the institution of the suit... Proceeding further, the subsequent M.P. Act (Act of 1961), which replaced the 1955 Act, was also noticed by which further protection regarding payment of the arrears by a tenant was given. The protection to tenants given by these Acts is more extensive and a tenant is given time to pay the arrears even after the institution of the suit... Proceeding further, the subsequent M.P. Act (Act of 1961), which replaced the 1955 Act, was also noticed by which further protection regarding payment of the arrears by a tenant was given. But the case was under the provisions contained in the old Act. It is, therefore, not possible to accept the contention of Mr. Mukherjee that the ratio of the 1985 decision would not have any binding force. 12. Before, however, recording my conclusion and answer to the main question, let me notice a few further facts of the case in hand to see the conduct of the tenant in making payment of rent for the premises as indicated in the table hereunder for the sake of convenience: Sl. No. Rent for the period Date of payment 1. March to June, 1976 14-7-1976 2. July to August, 1976 16-9-1976 3. October to December, 1976 Date not available 4. April to May, 1977 15-6-1977 5. June to August, 1977 Date not available 6. September to November, 1977 3-1 2-1977 7. December, 1977 23-1-1978 by money order. 8. January, 1978 18-2-1978 by money order. 9. February, 1978 15-3-1978 10. March to June. 1978 Tendered in August, 1978 after the institution of the eviction proceeding. 13. The landlord had refused to accept the rent for the months of December, 1977 and January and February. 1978 which was sent by money order although tenders were made within the stipulated time. The rent for the subsequent period, i.e. March, April and May, 1978, however, was not tendered by the tenant at all before the filing of the petition for eviction. 14. The main question for consideration therefore, is whether the illegal refusal of the landlord to accept the rent for the months of December, 1977 to February, 1978 could absolve the tenant from the obligation of paying or remitting the rent for the subsequent months. We have seen that in the written statement the tenant has not given any explanation for the defaults committed by him in paying the rent for these months. All that he stated is the denial of being a defaulter and a false plea of payment. We have seen that the tenant has been in the habit of making delayed payment of rent. All that he stated is the denial of being a defaulter and a false plea of payment. We have seen that the tenant has been in the habit of making delayed payment of rent. In order to hold that the default to payor tender the rent by the tenant was not wilful a finding has to be recorded by the Controller to that effect. When such a finding is recorded on the materials brought on record according to the prescribed, rules the tenant has to be given a reasonable chance of locus poenitentiae giving him a reasonable time, but not exceeding fifteen days, to payor tender the rent due from him. Such payment or tender, according to the scheme of the Act, would result in the rejection of the application for eviction. The appellate authority in the impugned order (Annexure 2) on reference to the payments made by the Petitioner for the period prior to December. 1977 has held that the Petitioner was a habitual defaulter for the period prior to December, 1977 and rejected his plea of regular payments and the belated grant of rent receipts by the landlord at a time. Although the appellate authority has found that after the receipt of the registered notice dated 11-1-1978 calling upon the Petitioner to vacate the premises by 31-1-1978 he started to send the rent by money order, yet without much discussion he has recorded the finding against the landlord in one sentence only, namely, that: Further, since December, 1977, the opposite party in the facts and circumstances of the case, cannot be said to be a wilful defaulter for payment of rent since December, 1977. 15. The appellate authority failed to appreciate that the registered notice dated 11.1-1978 issued by the landlord was served on the Petitioner and that the rent for the month of December. 1977 was tendered thereafter on 23-1-1978. In any case, no rent was tendered for the months of March, April and May, 1978 which had already fallen due till the institution of the case. I also do not find any discussion in the impugned order by the appellate authority that on account of the refusal of the earlier tenders the tenant was misled in any manner of a false sense of security and had any justification for an impression that any further tenders would be meaningless. 16. I also do not find any discussion in the impugned order by the appellate authority that on account of the refusal of the earlier tenders the tenant was misled in any manner of a false sense of security and had any justification for an impression that any further tenders would be meaningless. 16. We have got a decision of our own High Court in Gangadhar Sahu and Others Vs. Akhapati Ram Murty Patro and Others. where a tenant who was paying rent to the landlord regularly till the year 1965 had stopped payment of rent thereafter when some dispute arose between the heirs of the landlord as to the ownership of the house in question and instituted an interpleaded suit to know the real landlord. It was held that the tenant was not guilty of wilful default in payment of the rent. There may be some other circumstances such as where the landlord is not available to receive the rent or is away without authorising any person to receive the rent on this behalf or where of some unforseen circumstances, such as, death, accident, arrest, serious illness, etc., the tenant becomes unable to pay the rent. But judged in the background of his previous conduct, which has already been noticed by the appellate authority, the failure of the Petitioner to pay the rent within the statutory period prescribed in Section 7(2)(i) of the Act makes him a wilful defaulter. But whether he was not a wilful defaulter had to be proved and explained by the Petitioner on proper evidence on appreciation of which a finding which is required to be recorded under the proviso should have been recorded by the appellate authority. No authority was cited before us by Mr. Rath to show that in a case where the landlord has once refused to accept rent for any particular month or period when tendered or offered, the tenant was relieved from the obligation of paying or tendering rent for the subsequent months. No authority was cited before us by Mr. Rath to show that in a case where the landlord has once refused to accept rent for any particular month or period when tendered or offered, the tenant was relieved from the obligation of paying or tendering rent for the subsequent months. In the absence of any such decision, I would conclusively hold that even in such a case, i.e., where the offer of the rent for any particular month by the tenant to the landlord is refused, he has got a statutory duty to go on paying or tendering the rent for the subsequent months in accordance with law, regularly and punctually in order to escape the liability of eviction. 17. Having, therefore, a complete circumspection of the conduct of the tenant and regard to the decisions and the criteria laid down in the various authorities noticed above as well as the failure of the Petitioner to discharge the burden under the proviso to show that the default was not wilful and in view of the fact that nothing was shown even during the course of the argument on behalf of the Petitioner that the arrears of rent were not paid or withheld due to circumstances beyond the control of the Petitioner, there is no doubt in my mind that the Petitioner has committed wilful default in payment of the arrear rent for the months of March to May, 1978. Therefore the orders of eviction passed by the authorities under the Act have got to be maintained though on a different ground as discussed above. 18. In the result, the application fails and is hereby dismissed, but without any order as to costs. I would, however, allow six months' time to the Petitioner for giving vacant possession of the premises in question to the landlord. Let an appropriate writ issue accordingly. R.C. Patnaik, J. 19. I agree. Final Result : Dismissed