JUDGMENT - SINHA D.D., J.:---Heard Mr. Chaudhary, learned Counsel for the petitioner and Mr. Manohar, learned Counsel for the respondent No. 1. Rule made returnable forthwith by consent of the parties. 2. The learned Counsel for the petitioner contended that the respondent No. 1 is the landlord of the suit premises, and filed proceedings under the provisions of Clause 13(3)(i) and (ii) of the C.P. Berar Letting of Houses Rent Control Order. The Rent Controller, vide order, dated 23-5-2000, granted permission to issue quit notice to the petitioner-tenant under Clause 13(3)(ii) and rejected the permission sought by the landlord under Clause 13(3)(i) of the Order. The petitioner challenged the said order before the respondent No. 2 Appellate Authority, who, vide order, dated 24-7-2000, allowed the appeal filed by the petitioner and set aside the permission granted by the Rent Controller under Clause 13(3)(ii) of the Order. It is further contended that the respondent-landlord filed a review petition seeking review of the order, dated 24-7-2000, which was allowed vide order, dated 26-12-2000, passed by the second respondent. Being aggrieved by the same, the present petition. 3. Mr. Chaudhary, learned Counsel for the petitioners, challenged the impugned order firstly on the ground that the respondent No. 2, while considering the review petition, has virtually reappreciated the entire evidence and the material facts placed on record by the parties, which, in fact, is not permissible in view of the judgment of this Court reported in (Tukaram Nathuji Sonkusare v. Dayalnath)1, 1985 Mh.L.J. 37. 4. The second ground on which the impugned order was challenged is that if the accumulated rent is accepted by the landlord without any objection at any point of time and the landlord had no occasion to assume that the landlord was aggrieved by the manner in which rent was being paid hence the tenant cannot be said to be a habitual defaulter in a situation like this. 5. In the instant case, the learned Counsel contended that there was no established practice in respect of the manner in which the rent is required to be paid by the tenant to the landlord. The schedule, which is annexed by the landlord in the proceedings, would show that right from the beginning the rent was being paid by the tenant as and when demanded by the landlord. The schedule, which is annexed by the landlord in the proceedings, would show that right from the beginning the rent was being paid by the tenant as and when demanded by the landlord. It is, therefore, contended that in absence of any established practice in this regard and particularly when the rent was accepted by the landlord as and when paid without any protest, it cannot be said that the petitioner was a defaulter. In order to substantiate the contention, reliance is placed on the judgment of the Apex Court reported in (Rasik Lal v. Shah Gokuldas)2, 1989 Mh.L.J. 207. 6. Mr. Chaudhary, learned Counsel, therefore, contended that the impugned order is bad in law. 7. Mr. Manohar, learned Counsel for the respondent No. 1, on the other hand, contended that the schedule of payment was annexed with the application moved by the landlord under Clause 13(3)(ii) before the Rent Controller. The period, amount and date of payment are shown in the said schedule. The contents of this schedule have been admitted by the petitioner-tenant. On the basis of the above referred schedule, it is contended that the petitioner-tenant did not make the payment of the entire arrears of rent due and payable on various dates when the amount of rent towards arrears was paid by the tenant to the landlord. In order to demonstrate this fact, he has pointed out to the Court that Serial No. 11 in the schedule would show that the petitioner was in arrears of rent from 1-1-82 to 31-8-82. The amount of rent was Rs. 1360/-. However, these arrears of rent are paid on 8-12-1985. Similar is the situation in respect of the arrears of rent for the periods 1-9-82 to 31-1-83 as well as 1-2-83 to 30-4-84 and 1-5-84 to 30-9-84 and lastly 1-10-84 to 31-7-86. It is contended that at no point of time, the petitioner cleared complete arrears of rent and always committed defaults by making part payment and continued to do so till the respondent No. 1 filed a Civil Suit for recovery of arrears of rent and even after filing of the application under Clause 13(3)(ii) of the Order. The learned Counsel, therefore, contended that the petitioner is, in fact, a habitual defaulter, which has rightly been held by the Rent Controller. The learned Counsel, therefore, contended that the petitioner is, in fact, a habitual defaulter, which has rightly been held by the Rent Controller. In order to substantiate the contention, reliance is placed on the judgment of this Court reported in (Pandurang Tukaram Rajkondawar v. Balaram Madhaorao Chavan)3, 1985 Mh.L.J. 109, as well as another judgment of this Court reported in (Shormax Watch Co. v. Mahant Amardas)4, 1977 Mh.L.J. 67. In view of the above referred facts, Mr. Manohar supported the impugned order. 8. Considered the arguments canvassed by the respective Counsel and perused the impugned order passed. 9. As far as the first contention canvassed by Mr. Chaudhary, learned Counsel for the petitioner is concerned, in respect of the powers of review, there is no quarrel with the proposition laid down by this Court in case of Tukaram Nathuji Sonkusare v. Dayalnath. It is, no doubt, true that the jurisdiction under Clause 21(2-a) of the C.P. and Berar Letting of Houses Rent Control Order is not restricted to the points of law only and in a given case, it takes into an ambit even the points of facts. However, the power needs to be exercised only when there is a manifest error of fact, which has resulted into miscarriage of justice. In the instant case, since the issue raised goes to the root of the case and pertains to the aspect of law, and would otherwise result in miscarriage of justice, in such a situation, in my opinion, the authority/Court, undoubtedly, is entitled to review its own order under Clause 21(2-a) of the Rent Control Order. In that view of the matter, the first contention canvassed by the learned Counsel is rejected. 10. As far as the second limb of argument of Mr. Chaudhary, learned Counsel for petitioner, is concerned, that needs to be understood in the right perspective, keeping in view the undisputed facts of making delayed payments of arrears of rent to the landlord. In the instant case, it is not in dispute that the tenant whenever made a delayed payment towards arrears of rent, did not clear all the arrears of rent on that day and, therefore, always committed defaults in this regard, e.g., for the period 1-1-82 to 31-8-82, the arrears of rent for this period was, for the first time, paid by the petitioner-tenant on 8-12-85 amounting to Rs. 1360/-. 1360/-. However, the arrears of rent on that day was much more than Rs. 1360/- and, therefore, the petitioner did not pay the entire amount which was due and payable towards rent on 8-12-85 and committed default in respect of the arrears of rent due and payable on 8-12-85. Similar is the situation for the subsequent period shown and described in the schedule, particularly Serial Nos. 12, 13 and 14 as well as the last period, i.e., from 1-10-84 to 31-7-86. 11. The Division Bench of this Court in case of Pandurang Tukaram Rajkondawar v. Balaram Madhaorao Chavan reported in 1985 Mh.L.J. 109 in para 8 observed thus : "Even if the tenant does not make full payment of rent accrued due till the date of payment, the landlord has no alternative but to accept whatever amount of rent is paid to him by the tenant. It is not necessary for the landlord to give notice of default as the non-issue of notice of default will not absolve the tenant from discharging his liabilities. The circumstance that the landlord has accepted whatever amount of rent paid by the tenant without protest cannot by any stretch of imagination be relied upon in making out the case of acquiescence as held in unreported decision of this Court in Special Civil Application No. 240 of 1974, decided on 23-1-1980 in (Shah Gokuldas Naghjibhai v. The Standard Trading Company)5. The practice pleaded by the tenant obviously stands disproved. Even assuming that the practice pleaded by him is proved, no payment is made as per practice. We are aware of the fact that habitual default under Clause 13(3)(ii) of the Rent Control Order, 1949 is different from default under a contract in ordinary law. However, in this case the dates of payments shown in the schedule and the instances of withholding of rent due without making full payments till the dates of payment convincingly establish and justify that the tenant has either formed a habit to commit defaults or he suffered from inherent disability to discharge his liabilities when he is expected and bound to discharge even according to the practice alleged by him." 12. In view of the ratio laid down in the above referred judgment, it is abundantly clear that the payment, which was accrued and due for the period mentioned in the schedule, was not paid accordingly on the respective dates and as and when the arrears rent was paid to the landlord at a belated stage, the tenant did not clear all the arrears on that day and kept on committing persistent defaults in clearing the arrears till the last payment in this regard was made during the pendency of the civil suit. It that is so, the ratio laid down by the Division Bench of this Court is clearly applicable to the present case and, therefore, on the backdrop thereof, the petitioner has rightly been held to be a habitual defaulter. A similar view has ben expressed by the learned Single Judge of this Court in Shormax Watch Co. v. Mahant Amardas, 1977 Mh.L.J. 67, which reads thus : "A tenant is under a liability to pay rent regularly. If for some unforeseen reason the payment cannot be made every month he should at least pay all the arrears whenever he is able to make payment to the landlord. It will not be possible for him to say that he being a businessman, is not expected to be ready with funds every time." 13. In Rasiklal's case, the Hon'ble Apex Court was considering a different situation where the rent was payable on expiry of each month and since accumulated rent was accepted by the landlord without any objection at any point of time and the tenant had no occasion to assume that the landlord was aggrieved by the manner in which the rent was being paid, he cannot be termed as a habitual defaulter. 14. It does not appear from the text of the impugned judgments that when the tenant, who paid the arrears of rent to the landlord, made full payment of entire arrears of rent till that day. On the other hand, in the present case, the tenant never used to clear all the arrears by making full payment to that effect though the part payment used to be accepted by the landlord without any objection. 15. The question involved in the present matter is basically different. Clause 13(3)(ii) contemplates that the habitual defaulter is one who is habitually in arrears in respect of the rent. 15. The question involved in the present matter is basically different. Clause 13(3)(ii) contemplates that the habitual defaulter is one who is habitually in arrears in respect of the rent. Plain reading of the provision makes it evident that the tenant, who does not clear all the arrears of rent as and when the same are due and payable and commits persistent defaults in this regard, is a habitual defaulter. It is, no doubt, true that this would depend upon various factors, such as if the tenancy is monthly, then he is required to pay the amount on first day of every succeeding month and the same can also depend upon the contract between the landlord and tenant and in absence thereof on the basis of the established practice. However, in the instant case, even if it is presumed that as per the practice the tenant was required to make the payment of arrears of rent as and when demanded by the landlord, even then what was expected from the tenant was to clear all the arrears till that day when he made payment in respect of the same after demand was made by the landlord in this regard. In the instant case, as stated hereinabove, whenever the demand was made in respect of arrears of rent by the landlord, the tenant did not clear all the arrears till that date and, therefore, committed persistent defaults in clearing the arrears of rent, and the amount, which was accepted by the landlord towards the arrears of rent without objection, is only in respect of part payment of arrears of rent. However, the tenant continued to make defaults in making the payment of arrears of rent each time and, therefore, the conduct of the landlord accepting arrears of part payment of rent without objection is restricted only to the part payment, which was made by the tenant towards arrears of rent. Since the tenant failed to clear all the arrears by making full and final payment to the landlord, on every such occasion, he continued to be a habitual defaulter. Hence in view of the facts involved in the present writ petition, I am afraid that the ratio laid down by the Apex Court in case of Rasiklal does not help the contention of the petitioner. For the reasons stated hereinabove, the writ petition is dismissed. No order as to costs. Hence in view of the facts involved in the present writ petition, I am afraid that the ratio laid down by the Apex Court in case of Rasiklal does not help the contention of the petitioner. For the reasons stated hereinabove, the writ petition is dismissed. No order as to costs. Petition dismissed. -----