JUDGMENT - A.M. KHANWILKAR, J.:---This writ petition under Article 227 of the Constitution of India is directed against the judgment and order dated 28-10-1987 passed by the Collector, Akola in Revenue Appeal No. BRA-13(3) Murtizapur /7/86-87. 2. Briefly stated, the petitioner landlord filed application before the Rent Controller on 10-10-1983 purporting to seek permission for taking action against the respondent under Clause 13(3)(ii) of the C.P. and Berar Letting of Houses and Rent Control Order, 1949, since according to the petitioner, the respondent was habitual defaulter. The reason mentioned in the said application for granting such permission was that the respondent was in arrears in the past for which the petitioner had to file two separate civil suits for recovery of arrears and both the suits were decreed in favour of the petitioner. It is further stated that since January 1983 onwards till filing of the application, the respondent had failed to offer rent for nine months to the petitioner. The respondent resisted the said application by taking specific defence that in so far as the previous suits filed by the petitioner, in view of the concession given by the petitioner that he would not start proceedings before the Rent Controller in respect of the suit premises provided the respondent did not examine any witness including himself and that pursis Exhibit 15 was filed between the parties to that effect. It is, thus, contended that in so far as the arrears for the period prior to 1981 was concerned, the same cannot be looked into in the present proceedings for the simple reason that even assuming that the respondent was in arrears, the default, if any, was condoned by the petitioner and it is therefore not open for the petitioner to rely on the said circumstance to maintain the present application. With regard to the second ground stated in the application that the respondent was in arrears since January 1983 is concerned, the respondent contended that the respondent had offered the rent for the months of January, February and March by money order which was sent to the petitioner but the petitioner refused to accept the same. This averment was specifically made in the written statement. Besides the stand taken in the written statement, the respondent, in his evidence has asserted this position, which has remained unchallenged as no question has been put to the respondent during the cross-examination. This averment was specifically made in the written statement. Besides the stand taken in the written statement, the respondent, in his evidence has asserted this position, which has remained unchallenged as no question has been put to the respondent during the cross-examination. In other words, the fact that the petitioner refused the money orders went unchallenged. 3. In view of the rival pleas, the Sub Divisional Officer, by order dated 17-4-1986, allowed the application preferred by the petitioner. The Sub Divisional Officer accepted both the circumstances put forth by the petitioner for granting permission to the petitioner on the ground that the respondent was a habitual defaulter. The respondent took the matter in appeal before the Collector, Akola. The Collector, Akola, on the other hand, reversed the order passed by the Sub Divisional Officer and allowed the appeal by holding that there were enough documentary evidence to show that the landlord was intentionally refusing to accept the money orders and was thus trying to create situation for proceeding against the respondent. It is the aforesaid view taken by the Collector which is subject matter of challenge in the present petition. 4. Having considered the rival submissions and examining the records, I find merits in the contentions raised on behalf of the respondent that the petitioner having given unconditional assurance to the respondent that he would not start any proceedings before the Rent Controller in respect of the suit premises in the event the respondent did not examine any witness including himself and this assurance was given in writing in the shape of pursis at Exhibit 15. I find force in the submission of the learned Counsel for the respondent that once this statement and assurance is accepted and on that basis, the respondent did not lead any evidence and instead submitted to the decree in the suits filed by the petitioner for recovery of arrears during the period 1980, it will have to be held that the petitioner had condoned the default, if any. Naturally, therefore, the respondent did not bring on record any evidence in the said two suits, although available, in view of the said assurance. Naturally, therefore, the respondent did not bring on record any evidence in the said two suits, although available, in view of the said assurance. In the circumstances, the petitioner/landlord cannot be allowed to take advantage of the decrees passed in the said suits; and as such the decree for recovery of arrears, even if made in those two suits, will be of no avail and cannot be looked into for the purpose of deciding the present matter regarding the claim of respondent being a habitual defaulter. Once this position is accepted, what remains is the second circumstance indicated in the application preferred by the petitioner that the respondent was in default since January 1983. With regard to this, as aforesaid, evidence was adduced by the respondent that two money orders were sent offering rent for the period of January to March 1983, but the respondent refused to accept the same. In the circumstances, the approach adopted by the Appellate Court that the landlord cannot succeed for having refused the money orders by which rent was offered, cannot be faulted. Besides the said reasoning, I am inclined to hold that merely because the respondent was in arrears since January 1983, that, at best, could have been a ground available to seek eviction of the respondent under Clause 13(3)(i), which provides that if a tenant is in default for more than three months, the landlord would be entitled to seek eviction. In the present case, the landlord has invoked Clause 13(3)(ii), which entitles the landlord to seek eviction only when a case is made out that the tenant is a habitual defaulter. Both the provisions operate on a different plane. Once the earlier default is ignored, what remains is the default from January 1983. Although, there is valid defence and justification available to the respondent, to explain the circumstances in which the said default has occurred, even then, the default for that period cannot give any cause of action to the petitioner to maintain application under Clause 13(3)(ii) of the Act. 5. In the circumstances, writ petition should fail and the order passed by the Appellate Court rejecting the application preferred by the petitioner for permission to seek eviction of the respondent in the suit premises under Clause 13(3)(ii) is just and proper. 6. In the circumstances, the writ petition is dismissed with costs quantified at Rs. 3,000.00/-. Rule stands discharged. 5. In the circumstances, writ petition should fail and the order passed by the Appellate Court rejecting the application preferred by the petitioner for permission to seek eviction of the respondent in the suit premises under Clause 13(3)(ii) is just and proper. 6. In the circumstances, the writ petition is dismissed with costs quantified at Rs. 3,000.00/-. Rule stands discharged. Petition dismissed. -----