Acceptance of rent by the landlord after the due date, without objection and without letting the tenant know of any objection, constitutes an implied agreement to modify the original agreement and waives the landlord's right to claim eviction of the tenant on the ground of willful default.

JUDGMENT :

L. Rath, J. - The tenant is the Petitioner against an appellate order in a House Rent Control proceeding directing its eviction from the premises. The opposite party No. 1 filed a petition u/s 7(2) of the Orissa House Rent Control Act for eviction of the Petitioner for the premises on the pleading of its having been a chronic willful defaulter in payment of rent, The averment was made that the Petitioner was indifferent in paying monthly rent insight of repeated demands and that he was in arrears since July, 1980 till the date of filing of the petition, which was on 8-4-1981.

2. In the written statement filed by the Petitioner, it denied the assertion of being a willful defaulter and contended that the conduct of the parties would show payment of rent to have been made whenever the landlady sent her agents to receive payment. Besides the rents for the periods of default alleged was stated to have been paid on different dates. It is not disputed by the learned Counsel for the opposite party No. 1 that arrear of rent alleged to be from July, 1980 till the date of filing the petition was in fact paid out of Court during pendency of the K.R.C. case and accepted by the opposite Party No. 1 without intervention of the tribunal.

3. The petition for eviction was dismissed by the House Rent Controller as being not maintainable, but however in appeal preferred by the landlady, the decision of the House Rent Controller was reversed on the basis of decision of this Court reported in Vol. 57 (1384) CLT 153 Md. Kamruddin Jamma v. Ganga Pradhan and Ors. concluding tint acceptance of rent at intervals by the landlord does not constitute waiver and forfeiture of his right to claim eviction of the tenant on the ground of his being a wilful defaulter.

4. On perusal of the judgments of the original and the appellate authority, it is found that though rents due to the opposite Party No. 1 were not paid regularly, yet the same have been accepted without objection whenever tendered by the Petitioner. As a matter of act, from the evidence of P.W. 1 who was realising rent on behalf of the opposite Party No. 1, it transpires that the opposite Party No. 1 was accepting rent even though it was given at intervals and that she did not object to such payment.

5. Mr. Lal, learned Counsel for the opposite Party No. 1 has strenuously urged that acceptance of rent by the landlady could not be said to be "without objection" since a specific ground was taken before the appellate authority that the House Rent Controller had lost sight of the fact that some of the rent receipts produced and proved by the tenant show rest to have been accepted subject to objection. An affidavit has been filed by the opposite Party No. 1 in Court today without leave of the Court, stating that some of the rent receipts granted by the opposite Party No. 1 were endorsed "without prejudice". Even though we are not inclined to accept the affidavit at this stage, yet even if such statement is true, yet it would not in any way dislodge the oral evidence led by the opposite Party No. 1 rejudging payment of rent made by the Petitioner at intervals being accepted by the opposite Party No. 1 without protest. Besides mere marking of "without prejudice" on some receipts would not ipso facto mean a protest regarding acceptance of rent particularly in view of the oral evidence explaining that rent had been accepted without objection.

6. The decision of the appellate authority has proceeded on the footing of the earlier decision of this Court laying down the principle that default by the tempt would continue to be a default even if payment of rent in respect of default period is subsequently accepted by the landlord and would give rise to cause of action for his eviction. Such position his now been reversed in a Full Bench decision of this Court reported in Vol. Souri Prasad Swain Vs. Rani Jayashree Devi and Others, relying upon the decision of the Supreme Court in S. Sundaram Pillai and Others