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: This appeal is directed against the judgment passed by 5th Additional District Judge, Dhanbad dated 20.01.1996 in Title Appeal No. 3 of 1985 whereby he dismissed the appeal and confirmed the judgment dated 11.12.1984 passed by Munsif 1st Dhanbad in Title Suit No. 125 of 1983 by which appellant/defendant was found defaulter under section 11 (1)(d) of Bihar Building ( Lease, Rent & Eviction) Control Act, 1982 ( hereinafter referred to as BBC Act ), thus directed to vacate the suit premises.

2. It appears that plaintiffs/ respondents filed a suit i.e. Title Suit No. 125 of 1983 stating therein that the appellant/ defendant was a monthly tenant under him on a monthly rental of Rs. 105 and he defaulted in payment of rent from March 1983 to July 1983 as such he was liable to be evicted from the suit premises.

3. Appellant/ defendant filed a written statement and contested the suit. It is stated that there is no agreement or time fixed for payment of rent and plaintiffs always used to collect rent at his convenience and some time accepted rent for several months at a time. He further stated that the rents of March 1983 to July 1983 had been paid to plaintiff/respondents on 2.8.1983 but plaintiff/respondents had not issued rent receipt. It is stated that appellant sent a letter under certificate of posting for issuance of rent receipt, but the same was in vein. Accordingly, it is submitted that the appellants/defendant is not a defaulter within the meaning of section 11 (1)(d) of the BBC Act, thus, the suit is liable to be dismissed.

8. Sri P.K. Prasad, Senior Advocate appearing on behalf of plaintiff/respondent submits that learned appellate court below had considered Ext.-A series as well as the provisions contained under the BBC Act and had specifically given a finding that only by accepting rents of several months at a time, it can not be presumed that there was any agreement about the payment of rent at the convenience of party. Thus defendant/appellant required to pay rent by the end of next month as per the provision of BBC Act. Accordingly, it is submitted that 1st substantial question of law does not arise for determination in this case. So far the second question of law framed in this case, it is submitted that the law has already been settled by a Division Bench of Patna High Court reported in Balwant Singh and others Vs. Anand Kumar Sharma and others reported in 2000(1) PLJR 975 wherein it has been held that section 11 (1)(d) of BBC Act mandates payment of rent within the time fixed by the contract and where there is no such contract by the last date of the month next following, BBC Act does not envisage any implied contract for payment of rent at the convenience of tenant. Once a tenant incurs liability for being evicted on the ground of default, the payment of rent thereafter and its acceptance by landlord does not constitute waiver of his right to seek eviction of the tenant or creation of new tenancy. Accordingly it is submitted that the 2nd question of law also not required to be answered in this appeal as the same had already been answered in negative by a larger bench. Accordingly, he submits that the appeal be dismissed.

13. Thus, the provision contained under the BBC Act is different from the provisions of CP and Berara Control Order, therefore, ratio of Rashik Lal Case will not apply in the instant case.

14. The aforesaid question was considered by a Division Bench of Patna High Court in Balwant Singh and others Vs. Anand Kumar Sharma and others ( Supra). In that case it has been held that BBC Act does not envisage any implied contract for payment of rent at the convenience of tenant. If the tenant has not paid rent for two months within the time fixed by section 11 (1)(d) of BBC Act, he is in arrears of rent, therefore, he is liable to be evicted. In the said judgment, it is also held that if the landlord later on accept rents tendered by the tenant the same will not constitute a waiver of his right to seek eviction of the tenant. It is worth mentioning that the aforesaid Division Bench judgment of Patna High Court was delivered prior to coming into force of Bihar Re-Organization Act, 2000, thus, the same is binding precedent. It is also pertinent to mention that aforesaid judgment has been affirmed by a three Judges Bench of Hon'ble Supreme Court vide judgment reported in AIR 2003 SC 1637.