ORDER : 1. Heard learned senior counsel for appellant. 2. Appellant is original defendant-tenant. 3. The suit has been filed by the plaintiff-landlord for eviction of the tenant on the ground of default in making payment of rent. Tenancy is admitted between the parties and there is concurrent finding of both the Courts below also. Dispute is only with regard to default. 4. As per the pleading of the plaintiff, which has been accepted by the defendant also that there was a regular payment till March, 1995, but from April, 1995, continuously for 27 months’ rent has not been paid. This is an admitted position by both the parties and there is concurrent finding also. 5. The trial court has given finding that the tenant-defendant does not come into the zone of defaulter as rent has already accepted by the plaintiff-landlord without any protest. Further in the past four and five months, rent has been accepted in lump-sum. Thus, there is no pattern of payment and once it has been accepted by the landlord without any protest, the tenant will not come into the zone of defaulter. Accordingly, the suit has been dismissed. 6. Being aggrieved, plaintiff-landlord has filed an appeal being Title Appeal No.39/2009. Appellate Court has proved so far as finding of fact is concerned, rather there is no dispute regarding the factual position. Tenancy is admitted between the parties. Non-payment of rent for 27 months is admitted. The rent for 27 months has been accepted by the landlord-tenant before filing of the suit is also admitted. 7. The First Appellate Court has reversed the decree on consideration that once the tenant is not paying rent for 27 months, he has came into the zone of defaulter and the suit for eviction is maintainable and tenant is liable for eviction irrespective of the fact that rent has been paid and that has been accepted by the plaintiff. 8. Being aggrieved, the tenant has filed the present second appeal. 9. Learned senior counsel for the appellant has raised only one point stated in the judgment of trial court that once rent has been accepted and in past also the lump sum acceptance is there, in that view of the matter, tenant will not come into the zone of defaulter and it has been rightly accepted by the trial court and the suit has been dismissed. 10. 10. Learned senior counsel has relied upon the judgment in the case of Rashik La’ and Ors. Vs. Shah Gokuldas reported in AIR 1989 SC 920 to buttress his argument that once rent has been accepted by the landlord without protest then he is not entitled to file eviction suit. 11. From mere perusal of the above judgment, it is evident that the judgment is based on the phrase of ‘habitually in arrears’ with the rent and furthers a term “habitual defaulter”. The Apex Court is decided the issue on the basis of Clause 13 of the C.P. and Berar Letting of Houses and Rent Control Order, 1949. 12. The present case is covered by Jharkhand Buildings (Lease, Rent & Eviction) Control Act. Relevant Section 11 (1)(d) is quoted hereunder: “Section 11 -Eviction of tenants (1) Notwithstanding anything contained in any contract or law to the contrary but subject to the provisions of the Industrial Disputes Act, 1947 (Act XIV of 1947), and to those of Section 18, where a tenant is in possession of any building, he shall not be liable to eviction there from except in execution of a decree passed by the Court on one or more of the following grounds:- (a) (b) (c) (d) where the amount of [two months] rent, lawfully payable by the tenant and due from him is in arrears by not having been paid within the time fixed by contract or in the absence of such contract, by the last day of the month next following that for which the rent is payable or by not having been validly remitted or deposited in accordance with Section 16” 13. From mere perusal of Section, which starts with the word “notwithstanding”, the full phrase is notwithstanding anything content in any contract or law to the contrary. The simple meaning of this phrase is that in the tenancy law, relationship of the landlord and tenant is controlled by statute and not by the agreement between the parties. Sub Clause-11(1)(d) contemplates default. Default has to be considered, if it is not paid within the time fixed by the contract or in the absence of such contract by the last day of first week of the month next following. 14. Sub Clause-11(1)(d) contemplates default. Default has to be considered, if it is not paid within the time fixed by the contract or in the absence of such contract by the last day of first week of the month next following. 14. Thus, it is evident from the mere perusal of the section itself that if there is no contract regarding the due date of payment, then it will be paid in the first week of next month following and if tenant defaults in making payment of rent for two consecutive months, he will come under the zone of defaulter and on that ground, he is liable for eviction. 15. If contract is otherwise and payment has become due for 3 months, 6 months and 1 year and accordingly, the due date will be calculated and in those cases even single default is enough for eviction because if a due date comes after 3 months, 6 months and 1 year, two months default arrears will be on first default itself. 16. Learned senior counsel has argued that in past 4 or 5 months lump sum payment has also been accepted. If the contention of learned senior counsel for the appellant is accepted then there will be no concept of due date. In the absence of any due date, the Sub-Clause of 11(1)(d) of the Act of 2000 will be redundant. There cannot be any default in the absence of any due date so a due date has to be there either in the agreement or by contract between the parties i.e. oral or written. If there is no due date by consent between the parties then the due date has been supplied by the Act itself. 17. Admittedly, as per the argument of the learned senior counsel for the appellant there is no due date rather he has argued that there is no concept of due date in the fact of the present case and as such tenant cannot be termed as defaulter. 18. This argument cannot be accepted otherwise Section 11 (1)(d) of Jharkhand Buildings (Lease, Rent & Eviction) Control Act will be redundant. 19. Above reasoning of the court is getting support from the judgment of Apex Court reported in AIR 2003 SC 1637 from which para-4 is quoted hereunder: 4. 18. This argument cannot be accepted otherwise Section 11 (1)(d) of Jharkhand Buildings (Lease, Rent & Eviction) Control Act will be redundant. 19. Above reasoning of the court is getting support from the judgment of Apex Court reported in AIR 2003 SC 1637 from which para-4 is quoted hereunder: 4. The provisions of the said Act would clearly show that unlike Rent Control Statutes of other States, the expression 'willful default' or 'habitual default' has not been used therein. The words are 'is in arrears.' In the event, rent for two months is not paid a cause of action arises. The statute mandates that the rent should be paid within the time fixed by the contract and in absence thereof by the last date of month next following. The obligation on the part of the tenant to pay rent in the manner laid down under the Act, being a statutory one, he must comply therewith strictly. The statute, therefore, in other words, prescribes the period within which the rent must be rendered to the landlord by a tenant. When the statute lays down the period during which the rent is required to be paid or deposited, the same is required to be complied with. 20. In support of the above reasoning of the Court, judgment rendered by the High Court of Patna in the case of Jhari Mistry and Ors. Vs. Ranjan Sinha & Ors. reported in 1993 0 BBCJ 202 . Para-17 to 20 and 23 of the said judgment are quoted hereinbelow: 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. 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 -5the 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 BBCJ 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 obligation 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? 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, therefore, 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. 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 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. 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. 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.” 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 willful 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. 21. Thus, the Apex Court and Full Bench of Patna High Court dealt with the present Act and Section and has held that under the Bihar Buildings (Lease, Rent and Eviction) Control Act, if there is arrears of rent of two months then the tenant will come in the zone of defaulter. Acceptance of rent will not pull out the tenant from the zone of defaulter. 22. Once default has been committed at the instance of tenant by not paying rent, refusal or accepting rent by the landlord will not make any difference. 23. Once tenant has travelled in the zone of default, Section 11 (1)(d) of the Act of 2000 will come into force and tenant is liable for eviction. It is the wisdom of the landlord to exercise this power or not. Once this power is exercised by the landlord then the court is bound to pass an order of eviction in favour of the landlord. 24. It is the wisdom of the landlord to exercise this power or not. Once this power is exercised by the landlord then the court is bound to pass an order of eviction in favour of the landlord. 24. In the present case, tenancy is admitted and default in making payment of rent of 27 months is also admitted. Payment made by tenant and the same has been accepted by the landlord will not make any difference as discussed hereinabove. 25. In view of the above discussion, this Court finds no substantial question of law in the present appeal rather the point raised by the learned senior counsel for the appellant is a settled principle of law, so it cannot be termed as a substantial question of law. Accordingly, the present second appeal is dismissed. The judgment of reversal passed by the Appellate Court is hereby confirmed.