JUDGMENT: Chaudhary S. N. Mishra, J. This second appeal at the instance of the plaintiff-appellants is directed against the judgment of reversal. 2. It may be stated here that both the sole appellant and the sole respondent died during the pendency of this appeal and, accordingly, their heirs were substituted vide orders, dated 4. 9. 1990 and 24. 11. 1986, respectively. 3. I have heard the counsel for the parties at great length in support of their respective contentions. 4. Before I discuss the points of law raised and the authorities cited in support thereof, it is necessary to state briefly the facts of the case in order to fest the correctness of the points raised in this second appeal. 5. The plaintiff filed a suit for eviction against the defendant from the part of the house bearing Holding No. 113 of ward No. 12 situated in Mohalla Madhopur within Munger Municipality, which is fully described in Schedule I of the plaint. The case of the plaintiff is that his elder brother Ghina Mistry let out the premises to the defendant on a monthly rental of Rs. 20/. The instant suit was filed for eviction on the ground of personal necessity as also on the ground of default. 6. The defendant appeared and contested the suit by filing the written-statement, wherein he has admitted the relationship of landlord and tenant, but denied that the plaintiff requires the premises for his personal necessity Secondly, he has also alleged that in the facts and circumstances of this case, the defendant cannot be held to be a defaulter since he has remitted the rental to the plaintiff through the money order. 7. On the basis of the pleadings of the parties, the trial court framed several issues including issue nos. (2) and (3), which read as follows - "(2)-Whether the defdt. is defaulter: (3)-Whether the plff has got personal necessity of the suit house :" 8. The trial court decreed the suit on both the counts holding that the plaintiff has the bonafide requirement of the premises in question for his personal use and occupation and further that the defendant has defaulted in payment of rent for the period in question. 9. The trial court decreed the suit on both the counts holding that the plaintiff has the bonafide requirement of the premises in question for his personal use and occupation and further that the defendant has defaulted in payment of rent for the period in question. 9. The defendant, being aggrieved by the said Judgment and decree, filed an appeal before the lower appellate court and the lower appellate court allowed the appeal reversing the findings of the trial court in toto and held that the plaintiff does not require the premises in question for his personal use and occupation and also that the defendant has not defaulted in payment of rent to the plaintiff. 10. Learned counsel, appearing on behalf of the plaintiff appellants, vehemently Contended that the court of appeal below has wrongly non-suited the plaintiff relying upon a decision in Hardwari Lal V. Most. Nandrani & ors. (1977 B. B. C. J. 678), which has been over-ruled by this Court in Raj Kumar Prasad V. Uchit Narain Singh [A I. R. 1980 Patna 242 (Full Bench)]. 11. Learned counsel further submitted that the finding on issue no. (2) arrived at by the trial court on appreciation of evidence has wrongly been set aside by the court of appeal below on consideration of the facts, which are neither pleaded nor proved by the defendant in the court below. 12. I shall take issue no. (3) at first. The trial court no doubt, decreed the suit on this ground also, but the lower appellate court, on appreciation of relevant and material evidence, has held and I may say so rightly, that the plaintiff has not established his reasonable personal requirement of the premises in question. It may be mentioned here that in the plaint, it has been stated that the plaintiff requires the premises for his living, but it appears subsequently that the evidence was led that he requires the premises also for the purpose of education of his grand-children. It is admitted position that the plaintiff is living in one of the rooms of the premise in question alone although the evidence has been It'd that his house is situated in the native village, which is under constant threat of erosion in the rainy season due to flood in the river, Gandak. 13. It is admitted position that the plaintiff is living in one of the rooms of the premise in question alone although the evidence has been It'd that his house is situated in the native village, which is under constant threat of erosion in the rainy season due to flood in the river, Gandak. 13. The lower appellate court, however on consideration of the evidence on record, has disbelieved the case of personal requirement of the premises in question by the plaintiff and has came to a finding that the plaintiff does not require the suit premises for his personal use and occupation. This finding being a pure finding of fact, this Court, sitting in the second appeal, is Dot supposed to interfere with that finding. 14. Before I discuss the question of default, it is necessary to mention some relevant facts, which are not in dispute. The plaintiff, prior to institution of the suit, sent a notice under Section 106 of the Transfer of Property Act, 1882, asking the defendent to vacate the premises in question and to pay the arrears of rent. After expiry of the period of notice, the suit was filed on 9. 11. 1976. It is an admitted position that the defendant has not paid the rent for the months of August, September and October, 1976, as a result of which the cause of action accrued to the plaintiff to file the instant suit C on the ground of default in terms of section 11(1) (d) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (hereinafter referred to as 'the Act'). ' 15. Admittedly, the rent for three months was sent by the defendant to the plaintiff, which was received on 15. 11. 1976. The trial court, as has been stated above, has decided this admitted position strictly in terms of the statute. The lower appellate court has, however, non-suited the plaintiff firstly on the ground that the plaintiff received the rent for three months sent by money-order, which will amount to waiver and in that view of the matter it cannot be said that the defendant is a defaulter Reliance has been placed, in this connection,' on the decision of this Court in Hardwuri Lal V. Most Nandrani and Drs. (1977 B. B. C. J. 678) (supra). 16. (1977 B. B. C. J. 678) (supra). 16. The second reason assigned by the court of appeal below is that the plaintiff, in the past, also used to receive the accumulated rental of the premises in question at his convenience and, therefore, the payment of rental for three months together after expiry of statuory period will not attract the default clause in terms of section 11 (1) (d) of the Act and the defendant, therefore, cannot be held to be a defaulter. 17. The learned counsel, appearing on behalf of the plaintiff-appellants, has assailed the reasonings by the lower appellate court and submitted that the court of appeal below is not justified in holding that the defendant IS not a defaulter, since the plaintiff having accepted the accumulated rental of the premises for three months after the expiry of the statutory period. He strongly placed reliance on the decision of a Full Bench of this Court in Raj Kumar Prasad V. Uchit Narain Singh [A I. R. 1980 patna 242 (F. B.)] (supra) where S. K. Jha, J., speaking for the Full Bench, has held that by a mere acceptance of rent under a legal obligation, it cannot be said that the plaintiff has waived the right to challenge the same in the court of law and to file a suit for eviction in terms of section 11 (1) (d) of the Act. His Lordship further held in paragraph 11 of the judgment that none of the two decisions reported in 1977 B. B. C. J. 678 (supra) and in Birendra Mohan Ghosh v. Mohammad Ummar (A. I. R. 1973 Patna 299) laid down the correct law and consequently, the said decisions were over ruled. The learned Judge has further held in the same paragraph of the judgment :- "It, therefore, fails to appeal to reason as to how by acceptance of rent under a legal obliga1 ion there can be any question of waiver. At the cost of repetition, I may state that although the tenant has forfeited the right of tenancy for all practical purposes, he has to be treated as a tenant until so evicted. How then can the question of waiver arise in such a case? At the cost of repetition, I may state that although the tenant has forfeited the right of tenancy for all practical purposes, he has to be treated as a tenant until so evicted. How then can the question of waiver arise in such a case? I am fortified in my view by the decision of the Supreme Court in the case of V. Dhanapal (supra) which has dealt with the aspect of the matter and in which it has been , held in paragraph 9 of the All India Reporter with reference to the petition under the Bihar Rent Act as follows:- "The definition section permits the tenant to continue as a tenant even after the determination of the contractual tenancy. Section 11 gives him protection against eviction by starting with a non-obstante clause and providing further that he shall not be liable to eviction from any building except in execution of a decree passed by the court for One or more grounds mentioned in Section 11. Does it not stand to reason to say that a decree can be passed if one or more of the grounds exist and such a decree can be passed against an existing tenant within the meaning of the State Rent Act? " 18. As regards acceptance of lump sum amount by the plaintiff at his convenience, the court of appeal below has held that since the plaintiff used to receive accumulated rental for two to three months at a time and, there fore, in that view of the matter, it cannot be said that the defendant is a defaulter in terms of section 11(1) (d) of the Act. 19. Learned counsel for the plaintiff appellants has further submitted that the finding of the lower appellate court on this issue is not based upon any established law and, there fore, it cannot be sustained in the eye of law. In support of his contention, the learned counsel relied on a decision of this Court in Niranjan Pal v. Chaitanyalal Ghosh A. I. R. 1964 Patna 401 (Full Bench). As stated above, it is an admitted fact that the rent for the months; of August to October, 1976, has been paid on 15. 11. 1976 and therefore, in terms of section 11 (1) (d) of the Act, the defendant is, undoubtedly, a defaulter. As stated above, it is an admitted fact that the rent for the months; of August to October, 1976, has been paid on 15. 11. 1976 and therefore, in terms of section 11 (1) (d) of the Act, the defendant is, undoubtedly, a defaulter. The decision relied upon by the learned counsel fully supports his submission in this respect Their Lordships have held that in view of the contract, as envisaged under section 11 (1) (d) if two months, rent have not been paid to the plaintiff, the defendant can be held to be a defaulter and the plaintiff would be entitled to file a suit an this ground alone. The trial court has considered this aspect and has held in favour of the plaintiff, as has been stated above. Mere acceptance of rent by the defendant after the expiry of the statutory period will not disentitle the plaintiff from filing a suit on this ground. The moment the tenant failed to pay the rent or on refusal to deposit the same as prescribed by the statute, the defendant-tenant will be held to be a defaulter. 20. Learned counsel, appearing on behalf of the defendant-respondents, on the other hand, has supported the finding of the lower appellate court. The learned counsel placed reliance upon several decisions Reference, in this connection, at first, may be made to a decision of the Supreme Court in S. Sundaram Pillai etc. V. R. T. Pattabiraman(A. I. R. 1985 S. C. 582). 1he learned counsel relied upon the observations made in paragraph-5 of the judgment, which reads as follows- "5. So far as this appeal is concerned as the entire rent had been paid up in pursuance of the notice dated 17-9-79 even prior to the filing of the suit, it is manifest that on the date of filing of the suit no cause of action in presenti having arisen, the suit should have been dismissed On this short ground alone as being not maintainable. As indicated above, it was not open to the landlord after having received the entire amount of arrears before filing of the suit to have filed a suit for past conduct of the tenant. As indicated above, it was not open to the landlord after having received the entire amount of arrears before filing of the suit to have filed a suit for past conduct of the tenant. This appeal, therefore, merits dismissal on this ground alone." This judgment deals with the scope for eviction of the tenant-defendant for his wilful default as laid down under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 and their Lordships, while interpreting the meaning of the said expression 'wilful default' have held in paragraph 14 of the judgment as under- "14. From a detailed survey of the provisions of the various Rent Acts prevailing in the States and various Union Territories of our country, it appears that the provisions regarding eviction for default in payment of rent are Lot uniform and differ from state to State. Some Acts do not mention 'wilful default' at all, some mention it in a negative form while some put it in an affirmative form. To set out the matter short, from a review of the Various rent Acts the position that emerges is couched in three different types of default. (1) Acts which expressly mention, wilful default' without defining the same. (2) Acts which do not mention the words 'wilful default' at all but confer a right on the landlord to evict the tenant on pure and simple default after a certain period of time when the rent has becomes due, which is also different in different States. (3) Acts which use the expression 'wilful default' but in a negative form rather than in an affirmative form." 21. The instant case admittedly comes under clause (2) of paragraph 14 of the judgment, referred to above. In the said case the entire dues were paid before the institution of the suit and in that view of the matter, their Lordships have held that at the time of filing of the suit, there was no cause of action in presenti and w the suit had been dismissed. But in the instant case, as has been stated above, the rent for three months was remitted after the expiry of the statutory period and, therefore, the ratio of the decision reported in A. I. R. 1985 S. C. 582) (supra) is not applicable to the facts and circumstances of the instant case. 22. But in the instant case, as has been stated above, the rent for three months was remitted after the expiry of the statutory period and, therefore, the ratio of the decision reported in A. I. R. 1985 S. C. 582) (supra) is not applicable to the facts and circumstances of the instant case. 22. Learned counsel next placed reliance in Rashik La' and others V Shah Gokuldas (A. I. R. 1989 S. C. 920). In the said case dealing with the case under the C. P. and Berar Letting of Houses and Rent Control Order, 1949, where also the expression 'wilful default' found place in the statute, their Lordships have observed in paragraph 7 of the judgment as hereunder- "7.........1t is significant to note that the condition mentioned in the Rent Control Order is different from the condition in several other statutes where mere non-payment of rent for a particular period has been provided as adequate ground for eviction of the tenant.................” The learned counsel also further relied on the observation of their Lordships in paragraph 8 of the aforesaid decision, which is quoted below in extenso- "8. 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. Deshmukh'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 spring a surprise on the tenant by suddenly starting a proceeding for eviction. Having lulled the tenant in the belier 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. Having lulled the tenant in the belier 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 disclose in the present case the appellant should hereafter pay the rent regularly in the succeeding month failing which he may be adjudged a habitual defaulter." 23. As has been stated above, the consideration before their Lordships was as to whether or not there was a 'wilful default' in payment of rent by the tenant defendant, and. in that context, their Lordships, after taking into account the conduct of the parties that there was no wilful default and, as such, the defendant cannot be held to be a defaulter. In the instant case, section 11(1) (d) of the Act does not confer any implied contract. The mere default in payment of rent for two months will be enough to hold a tenant as defaulter. 24. Mr. Ghosh, learned counsel, then relied upon the case of Gowali Charan Vs. Surendra Kumar Khadani and Ors. reported in 1988 P. L. J. R. 37. From a reading of the judgment, it is not very apparent that the entire rent dues in that case were paid before institution of the suit. No fact has been mentioned in the said judgment. Therefore, it is not proper for me to apply the ratio of this decision to the facts and circumstances of the instant case. 25. The last decision relied upon by Mr. Ghosh is the case of D. C. Oswal Vs. V. K. Subbiah and others (A. I. R. 1992 S. C. 184). This was also a case of 'wilful default' under the T. N. Buildings (Lease and Rent Control) Act, 1960. In this case as well, their Lordships made a distinction between the 'wilful defaulter' and the 'defaulter simpliciter and, therefore, this decision is also not helpful to the Mr. Ghosh. This was also a case of 'wilful default' under the T. N. Buildings (Lease and Rent Control) Act, 1960. In this case as well, their Lordships made a distinction between the 'wilful defaulter' and the 'defaulter simpliciter and, therefore, this decision is also not helpful to the Mr. Ghosh. 26. In my opinion, the decisions cited and relied upon by Mr. Ghosh, learned counsel for the defendant-respondents are not relevant in the facts and circumstances of this case for the reason stated above. 27. Taking into consideration all the relevant facts and the submissions of the learned counsels, appearing on behalf of the parties, I am of the view that the lower appellant court has Dot correctly applied the law to issue no. (2) in hand while reversing the judgment and decree of the trial court. 28. In the result, the appeal is allowed, the judgment and decree passed by the court of appeal below, so far issue no. (2) is concerned, is set aside and the suit of the plaintiff-appellants is decreed. But, in the facts and circumstances of the case, there shall be no order as to costs. Appeal allowed.