In order to entail eviction, the tenant need not be in arrears of rent at the time of the filing of the application under Section 7 (1) before the Controller. The language is 'the tenant has not paid or tendered the rent due from him' on the due date.

AGRAWAL, C. J.

( 1 ) WHEN this writ application was listed before a Division Bench, the correctness of certain observations made in three earlier Bench decisions of this Court was doubted, and accordingly it referred the matter to the Full Bench and that is how it has come before us.

( 2 ) IN essence, the question falling for determination is the construction of clause (i) of Section 7 (2) of the Orissa House Rent Control Act, 1967 (for short 'the Act') dealing with 'default' on the part of the tenant and the proviso thereto under which the House Rent Controller has to record a finding as to whether the default was 'wilful'.

( 3 ) FACTS :-the tenant-petitioner is in occupation of a room in the building of opposite party No. 1. The tenancy has commenced on 1-4-1975 under a Written agreement on a monthly rent of Rs. 180/ -. According to the terms of the agreement, the rent for each month was to be paid by the 5th. of that month itself. A fresh agreement was executed between the parties on 1-4-1977 (Ext. 1) increasing the rent to Rs. 250/- per month, which was again increased in October, 1978 to Rs. 300/ -. In the subsequent agreement (Ext. 1) also, the stipulation regarding the date of payment of rent was the same, i. e. , 'on or before the fifth day of every calendar month in advance'.

( 4 ) THE landlady (O. P. 1) filed the case for eviction of the petitioner from the from the premises before the House Rent Controller, Cuttack on 3-2-1980 alleging inter alia that he had committed defaults in payment of the rent on 14 occasions since the beginning of his tenancy. Although the details of the defaults have not been specifically stated in the eviction application, according to the chart prepared by the learned counsel for the petitioner, 7 of those defaults were up to May, 1979. It has already been said that the fresh agreement of tenancy was executed as per Ext. 1. Undisputedly, therefore, the defaults, if any, prior to the execution of Ext. 1 could not be pressed into service and must be deemed to have been waived by the landlady. Mr. G. Rath, learned counsel appearing for her, also did not dispute this proposition. The other defaults, which are relevant, are enumerated hereunder : -rent of the Months. Date of payment july, 1979 18- 8-1979 august, 1979 14- 9-1979 september, 1979 13-10-1979 october, 1979 12-11-1979 november, 1979 14-12-1979 the rent for the month of December, 1979 had not been received by the landlady until the date of the filing of the, eviction application, i. e. , 13-2-1980. Undisputedly, however, it was remitted in January, 1980 itself and accepted by the landlady.

( 5 ) ON the evidence adduced, the authorities under the Act held the petitioner a defaulter and ordered eviction.

( 6 ) IN this Court, it was contended before the Division Bench by the petitioner that the defaults were bona fide within the meaning of the proviso to Section 7 (2) (i) and, therefore, the order for eviction was unsustainable in law. In course of the bearing, the Bench entertained doubt regarding certain observations in the following cases :. (1) Manakarani Hazra v. Mohinder Singh Jaggi, (1968) 34 Cut LT 277. (2) Sushil Chandra Palit v. Dhani Behera, ILR (1971) Cuttack 1211. (3) Parbati Goenka v. Giridharilal Kawantia, (1972) 2 Cut WR 1120. The observations which have been adversely commented upon in the order of reference may also be indicated at this very place. In Manakarani Hazra's case (AIR 1968 Orissa 113) : -"it is to be made clear that in order to be wilful, a default need not be habitual or continuous. A single default in the facts and circumstances of particular case may be wilful. . . . . . . . . " (underlining is mine)in Sushil Chandra Palit's cure (ILR (1971) Cut 1211) : -"on a plain reading of Section 7 (2) (i) it is clear that to entail eviction the tenant need not be in arrears of rent at the time of the filing of the application under Section, 7 (1) before the Controller. The language is 'the tenant has not paid