JUDGMENT : L. Rath, J. - The tenant is the Petitioner against an appellate order in a House Rent Control proceeding directing its eviction from the premises. The opposite party No. 1 filed a petition u/s 7(2) of the Orissa House Rent Control Act for eviction of the Petitioner for the premises on the pleading of its having been a chronic willful defaulter in payment of rent, The averment was made that the Petitioner was indifferent in paying monthly rent insight of repeated demands and that he was in arrears since July, 1980 till the date of filing of the petition, which was on 8-4-1981. 2. In the written statement filed by the Petitioner, it denied the assertion of being a willful defaulter and contended that the conduct of the parties would show payment of rent to have been made whenever the landlady sent her agents to receive payment. Besides the rents for the periods of default alleged was stated to have been paid on different dates. It is not disputed by the learned Counsel for the opposite party No. 1 that arrear of rent alleged to be from July, 1980 till the date of filing the petition was in fact paid out of Court during pendency of the K.R.C. case and accepted by the opposite Party No. 1 without intervention of the tribunal. 3. The petition for eviction was dismissed by the House Rent Controller as being not maintainable, but however in appeal preferred by the landlady, the decision of the House Rent Controller was reversed on the basis of decision of this Court reported in Vol. 57 (1384) CLT 153 Md. Kamruddin Jamma v. Ganga Pradhan and Ors. concluding tint acceptance of rent at intervals by the landlord does not constitute waiver and forfeiture of his right to claim eviction of the tenant on the ground of his being a wilful defaulter. 4. On perusal of the judgments of the original and the appellate authority, it is found that though rents due to the opposite Party No. 1 were not paid regularly, yet the same have been accepted without objection whenever tendered by the Petitioner. 4. On perusal of the judgments of the original and the appellate authority, it is found that though rents due to the opposite Party No. 1 were not paid regularly, yet the same have been accepted without objection whenever tendered by the Petitioner. As a matter of act, from the evidence of P.W. 1 who was realising rent on behalf of the opposite Party No. 1, it transpires that the opposite Party No. 1 was accepting rent even though it was given at intervals and that she did not object to such payment. 5. Mr. Lal, learned Counsel for the opposite Party No. 1 has strenuously urged that acceptance of rent by the landlady could not be said to be "without objection" since a specific ground was taken before the appellate authority that the House Rent Controller had lost sight of the fact that some of the rent receipts produced and proved by the tenant show rest to have been accepted subject to objection. An affidavit has been filed by the opposite Party No. 1 in Court today without leave of the Court, stating that some of the rent receipts granted by the opposite Party No. 1 were endorsed "without prejudice". Even though we are not inclined to accept the affidavit at this stage, yet even if such statement is true, yet it would not in any way dislodge the oral evidence led by the opposite Party No. 1 rejudging payment of rent made by the Petitioner at intervals being accepted by the opposite Party No. 1 without protest. Besides mere marking of "without prejudice" on some receipts would not ipso facto mean a protest regarding acceptance of rent particularly in view of the oral evidence explaining that rent had been accepted without objection. 6. The decision of the appellate authority has proceeded on the footing of the earlier decision of this Court laying down the principle that default by the tempt would continue to be a default even if payment of rent in respect of default period is subsequently accepted by the landlord and would give rise to cause of action for his eviction. Such position his now been reversed in a Full Bench decision of this Court reported in Vol. Souri Prasad Swain Vs. Rani Jayashree Devi and Others, relying upon the decision of the Supreme Court in S. Sundaram Pillai and Others Vs. `R. Pattabiraman and Others. Such position his now been reversed in a Full Bench decision of this Court reported in Vol. Souri Prasad Swain Vs. Rani Jayashree Devi and Others, relying upon the decision of the Supreme Court in S. Sundaram Pillai and Others Vs. `R. Pattabiraman and Others. The position his now further been explained in a recent decision of the Supreme Court in Prem Nath Raina and Others Vs. State of Jammu and Kashmir and Others, deeding that where by his conduct the landlord his accepted rent even after lapse of the due period, it would not be open for him to turn around and condemn the tenant for his default. The relevant passage may be usefully extracted: We do not see any reason for holding that unless the rent was paid and accepted at a fixed period of interval, no such implied agreement can be inferred. In the S.P. Dashmukh's case (supra) the rent had been paid at the varying interval of 3 or 4 months. The crucial test appears to be the conduct of the landlord in receiving the rent offered belatedly. If he receives the same under a protest and warns the tenant to be regular in payment in the future, he cannot be assumed to have agreed to a modified agreement in this regard. But if he, without any objection and without letting the tenant know his thought process, continues to receive rent at intervals of several months, he cannot be allowed to string a surprise on the tenant by suddenly starting a proceeding for eviction. Having lulled the tenant in the belief that things were all right, the landlord was under a duty to serve him with a notice demanding regular payment, if he wished to insist upon it. In the case before us there was no objection whatsoever, raised on behalf of the landlord against the delayed payments. We, therefore, hold that the High Court was not right in reversing the concurrent finding of the two Courts below. Accordingly the impugned judgment is set aside, that of Resident Deputy Collector is restored and the appeal is allowed with costs throughout. Before closing, however, we would like to observe that in view of the attitude of the parties disclosed in the present case the Appellant should hereafter pay the rent regularly in the succeeding months failing which he may be liable to be adjudged a habitual defaulter. Before closing, however, we would like to observe that in view of the attitude of the parties disclosed in the present case the Appellant should hereafter pay the rent regularly in the succeeding months failing which he may be liable to be adjudged a habitual defaulter. In our view, the decision would completely cover the facts of the case and hence decision of the appellate authority cannot be sustained. 7. In the result, the writ application is allowed and order of the appellate authority is set aside and House Rent Control Case No. 20 of 1981 is dismissed with costs. Hearing fee is assessed at Rs. 300/-. A. Pasayat, J. 8. I. agree. Writ application allowed. Final Result : Allowed