P.S Mishra, J.:— The litigation which started in the year 1958, for eviction of the appellant, who is a tenant in a house situated in one of the quarters of the town of Patna, has come for the third time to this Court.

2. The original suit, being Title suit no. 58 Relied upon of 1958 concluded in favour of the tenant-appellant, as this Court found in Second Appeal no. 192 of 1963 that a suit for eviction of a tenant under the Bihar Building (Lease, Rent & Eviction) Control Act, 1947 could not have been instituted without determining the tenancy by a notice under section 106 of the Transfer of Property Act. This Court positively held accordingly that the suit was premature. The original plaintiff-respondents instituted a fresh suit, being. Title suit no. 141 of 1971 after serving a notice under section 106 of the Transfer of Property Act. The Munsif, 3rd court. Patna dismissed the said suit by his judgment dated 23-8-1976. The plaintiffs' appeal, which was eventually heard by the Additional Subordinate Judge VI, Patna, was also dismissed on 7-6-1977. Their appeal, being Second Appeal no. 672 of 1977, however, was allowed on 10-10-1980 by this Court and the case was remanded to the First Appellate court to find out whether the assertion of the plaintiffs, that rent from January, 1956 had not been paid, was correct or not, and in that connection to scrutinies the evidence to see whether the story of tender and refusal of rent was correct. Whether the rent that was being remitted was valid payment, whether there was any evidence to support the defendant's version that he had paid the corporation taxes and if so what was the amount which would be adjusted in the rent under section 8A(2) of the Act; and whether it was necessary for the court to consider the evidence of default for a period prior to three years from the date of institution of the suit. After remand the appeal has, however; been disposed of by the Additional Subordinate Judge VIII, Patna in Title Appeal no of Granting to the defendants liberally, all that can be said in favour of a tenant, the learned Subordinate Judge VIII has allowed the appeal and the suit. He has directed the tenant-appellant to hand over vacant possession of the premises to the co-appellant. In default, he has said, the decree will be executed. Although this litigation has dragged on for several years and from court to court, yet a number of controversies raised before me on behalf of the appellant require attention. The respondents, who have entered appearance as caveators in the appeal, keeping in view the facts and the circumstances of this case, and the appellant, have agreed that the appeal should be heard and finally disposed of at this stage. After once hearing at length I called for the record and after the records have been received, I have heard the parties under Order 41 rule 30 of the Code of Civil Procedure instead of hearing only under Order 41 rule 11 of the Code of Civil Procedure.

3. Before, however, I deal with the contention raised before me, a short statement of facts is necessary: The original plaintiffs filed a Money Suit, being Money Suit no. 578 of 1955/128 of 1959 in the court of Munsif II, Patna for a decree of arrears of rent of Rs. 300/- in respect of the house in question. They also filed Title Suit no. 58 of 1958 in the same court for eviction of the defendant on the ground of default and personal necessity. Both the suits were tried analogous and the litigation that followed ended by the judgment in Second Appeal No. 192 of 1963.

4. The defendant took the house of the plaintiffs at a rental of Rs. 300/- on 1.3.1948 The House Controller, however, fixed fair rent at Rs. 180/- per month on 8.12.1958 with effect from the date of the filing of the petition before him for the said purpose, that is to say, with effect from 15.9.1958 in B.B.C Case no. 195 of 1958. According to the plaintiffs the defendant fell in arrears of rent from September, 1955 to February, 1958 and accordingly Title Suit no. 58 of 1958 was filed for his eviction. The proceedings for eviction of the defendant, however, came to an end on the finding in Second Appeal No. 192 of 1963 that the suit could not have been instituted without determining the tenancy by a notice under section 106 of the Transfer of Property Act. The judgment in the Second Appeal was delivered on 19.2.1966 The plaintiffs thereafter instituted Title suit no. 141 of 1971 in the court of the Munsif III, Patna, this time after serving a notice under section 106 of the Transfer of Property Act upon the defendant. In the instant suit a further allegation was made that the default in the payment of rent by the defendant continued during the pendency of the earlier proceedings as also until determination of the tenancy by the notice under section 106 of the Transfer of Property Act. The plaintiffs also sought eviction of the defendant raising a ground of personal necessity. The defendant in his written statement raised various pleas, but primarily maintained that he had committed no default in the payment of rent. He had paid to the plaintiffs towards rent in lump sum on several occasion in advance, by making payment of the Municipal taxes and meeting some other expenses and by remitting the rent by moneyorders. According to him after the litigation, vide Money Suit no. 578 of 1955 and Title suit no. 58 of 1958 rent in arrears as well as current rent was paid by deposits under the orders of the court by way of security and under section 11A of the Act and after the disposal of the Second Appeal no. 192 of 1963. On the plaintiff's refusal to accept the rent, he tendered to them rent by moneyorder continuously until the institution of Title suit no. 141 of 1971. He also contested the plaintiff's claim of eviction on the ground of personal necessity.

5. When the matter came before this Court in Second Appeal no. 672 of 1977, this Court noticed that it should be determined whether the assertion of the plaintiff, that rent from January, 1956 had been paid, was correct or not and the other contentions raised on behalf of the parties including the question whether default for a period prior to three years from the date of the institution of the suit could be a ground for eviction of a tenant or not, should also be examined afresh.

6. The contentions, however, varied from stage to stage and the proceedings and findings changed in view of the contentions and laws then prevailing and relevant for deciding the case. But the contentions raised before me are such that they require no elaboration of such details.

7. Mr. S.C Ghose, learned counsel appearing for the appellant, has raised five contentions, which, according to him constitute substantial questions of law. The questions to be decided according to Mr. Ghose are—

(i) Whether the court of below has committed an error of record in holding that rents for the months of August, 1967 and January, 1969 were not remitted by the tenant-appellant, when, in fact, they were remitted vide Exhibit E/33 and Exhibit E/30;

(ii) Whether the court of appeal below has erred in holding that tendering rent in cash is essential before it is remitted to the landlord by moneyorder and if there is no physical tender of rent each month to the landlord, the recourse to the special provision under section 13 of the Act cannot be taken;

(iii) Whether any default for a period prior to three years before the institution of the suit could be a ground for eviction;

(iv) Whether non-payment of rent in course of the proceeding and/or after the determination of the tenancy would be a ground to hold that the tenant is a defaulter; and

(v) Whether a purchaser from the original plaintiff landlord during the pendency of the appeal can maintain the suit and further proceeding on the ground of default in the payment of rent to his transferror landlord.

8. So far the second contention (questions of law) raised by Mr. Ghose is concerned, in my judgment, it has to be answered in his favour. The ground of default that may be available to a landlord, in view of the provisions under section 11(1)(d) of the Act, is one in which the amount of two months' rent lawfully payable by a 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 13 of the Act. Section 13 of the Act, which has provided for remittance and deposit of rent by the tenant on refusal of the landlord to accept it or in case of doubt or dispute as to the person entitled to receive it, says that when a landlord refuses to accept any rent lawfully payable to him by a tenant in respect of any building, the tenant may remit such rent and continue to remit any subsequent rent which becomes due for such building by postal moneyorder to the landlord. The tenant's option to remit rent by moneyorder to the landlord accrues when a landlord refuses to accept the rent lawfully payable to him. Interpreting this provision under section 13 of the Act, Ali Ahmad, J. in Inter State Transport Agency v. Habiba Khatoon (1982 B.B.C.J 252) has said that remittance or rent by money-order can be made only where the rent is tendered to the landlord by the tenant and is refused by him. In a later judgment Chaudhary Sia Saran, J. in the case of Bharat Roadways v. Shailendra Kumar Birla (1984 B.B.C.J 97 : 1984 PLJR (NOC) 49) has also taken a similar view and has said:

“If the tenant wants to take advantage to the provisions of Section 19 of the Act, he has to come squarely within the four corners of that section which necessitates that before the tenant sends the rent by postal moneyorder, there must be refusal by the landlord to accept the rent earlier to the sending the rent by moneyorders.”

9. Bharat Roadways, however, challenged the view taken by this Court before the Supreme Court and in the judgment reported in 1984 B.B.C.J 103 (S.C) : 1984 PLJR (S.C) 47 Bharat Roadways v. Shailendra Kumar Birla), the Supreme Court has said that the finding recorded by the High Court on the basis of default in payment of arrears of rent is unsustainable.

10. Chaudhary Sia Saran, J., has, however, only followed the view expressed in Inter State Transport Agency (supra) that it should be proved by the tenant as a fact in a suit for eviction that he sent moneyorders only after he tendered the rent in cash to the landlord and the landlord refused to accept it. section 11(1)(d) of the Act leaves no doubt that there would be no default if there is a valid remittance of rent in accordance with section 13 of the Act. The question that the remittance started only after refusal of the landlord to accept the rent is one which can be posed in an appropriate case, if the landlord comes out with a plea that he was ever willing to accept the rent, but the tenant avoided paying it. Moreover, whether the landlord refused to accept the rent or not may depend upon variety of facts and circumstances. There may be express refusal, there may be refusal by conduct. I am not proposing to go beyond saying that in what cases it can be inferred that the landlord refused to accept rent shall depend upon facts of each case. I am of the view that in a suit for eviction it is wholly unnecessary for a tenant to go to the question of his tendering rent in cash to the landlord and the landlord refusing to accept it, as the requirement of section 11(1)(d) would be fully satisfied if it is demonstrated that the remittance of rent was in accordance with the provisions of section 13 of the Act. There is no doubt in my mind that the view taken by Ali Ahmad, J. and Chaudhary Sia Saran, J., in their respective judgments stands overruled by the judgment of the Supreme Court in Bharat Roadways v. Shaileudra Kumar Birla (supra).

11. The contention (the question), whether a default taking place prior to more than three years before the institution of the suit would be barred by limitation, is supported by the judgment in Bhairo Lal Agrawal v. Samir Baran Ghosh (1964 B.L.J.R 59). This Court has said in that case that the arrears of rent prior to the institution of the suit can be taken into consideration for the purpose of eviction of a tenant, provided the same is not barred by limitation on the date of the institution of the suit. In the case before the Division Bench, the arrears alleged were within three years of the institution of the suit and, thus, it held that the default fell within the period of limitation. For every action by way of a suit in a court of law, there is a period of limitation. The suit barred by limitation cannot be entertained by a court of law. The default falling beyond the period of limitation, therefore, would be no default for the purpose of eviction. True, in view of the settled law, no determination of tenancy by notice under section 106 of the Act is necessary, yet the right to sue for eviction of a tenant would accrue to a landlord only if one or the other breach as provided under section 11 of the Act, is noticed. In the case of default, unless it is one for a period more than two months, as prescribed under section 11(1)(d) of the Act, the right to evict the tenant shall not accrue to the landlord.

12. Mr. K.P Sinha, learned counsel appearing for the respondents has drawn my attention to a Full Bench decision of this Court in Raj Kumar Prasad… v. Uchit Narain Singh…. (A.I.R 1980 Patna 242 : 1980 PLJR 195). He has drawn my attention, particularly to the facts stated in paragraph 5 of the said judgment that the default, in respect of which the suit for eviction was instituted, was for the periods beyond three years of the limitation. He has submitted that once there is a default, the tenancy would become statutory, and as the starturory character of it would continue until determined by a decree, the right to evict would be available to the landlord all the while. There is no question of the said right either waived or lost. Raj Kumar's case is not one in which the question whether a default falling beyond the period of limitation will be available to the landlord to evict the tenant or not has been decided. Apart from the other questions before the Full Bench, a question had arisen whether by accepting rent, before filing the suit, the landlord would be deemed to have waived the right to evict or not. This Court has said, and I have no reason not to accept it, that there is no question of waiver of a default and is not dependent upon acceptance or refusal of rent under section 11(1)(d) of the Act. The ratio in the case of Bhairo Lal Agrwal (supra), therefore, has remained unaffected by the decision of the Full Bench in (1982 B.L.J.R 242). I am bound to follow the view of the Division Bench and I find no reason to differ with that.

13. Mr. Sinha also has drawn my attention to a judgment of the Supreme Court in Khadi Gram Udyog Trust v. Shri Ram Chandarji Virajman Mandir (A.I.R 1972 Supreme Court 287). The question before the Supreme Court in the said case was whether the words “entire amount of rent due” for a tenant to avoid eviction by depositing rent as provided, under section 20(4) of the U.P Urban Buildings (Regulation of Letting Rent and Eviction) Act would include ‘rent’ which has become barred by limitation or not. Kailashan, J. speaking for the court has said:—

“…………. The law is well settled that though the remedy is barred the debt is not extinguished. On consideration of the scheme of the Act, it is clear that the statute has conferred a benefit on the tenant to avoid a decree for eviction by complying with the requirement of section 20(4). If he fails to avail himself of the opportunity and has not paid the rent for not less than four months and within one month from the date of service upon him of a notice of demand, the landlord under section 20(2) would be entitled to an order of eviction. Still the tenant can avail himself of the protection by complying with the requirements of section 20(4). As he has not deposited the entire amount due, the protection is no more available…………”

14. The question whether a suit for eviction can be filed on the basis of a default which has become barred by time, however, was not before the court for consideration. I regret it is not possible to accept Mr. Sinha's contention that there shall be no question of limitation in a suit for eviction on the ground of default, in view of a Division Bench judgment of this court in Bishundeo Mahto (Supra).

15. The next question that there would be default for the purpose of eviction even if the rent is not paid during the pendency of a proceeding for eviction, as I have indicated earlier, has to be answered in favour of the appellant. As a default in the payment of rent would entitle a landlord to evict his tenant and once such a default has taken place, the tenant's liability would continue irrespective of his paying rent subsequently to the landlord, so will be the position about the rent during the pendency of a concluded proceeding. A landlord's right to realise rent during the pendency of the proceeding for eviction is fully safeguarded, under a special provision as engrafted under section 11A of the Act. There is no question of any default during the pendency of the proceedings unless there is an order under section 11A of the Act. There are stringent conditions prescribed under the said section, which require a tenant to deposit rent in arrears within fifteen days of the order by the court for the said purpose and to go on depositing current rent by the 15th day of the next month. I have no hesitation in holding that any default that may be taken notice of in a suit for eviction for the purpose of evicting a tenant under section 11(1)(d) of the Act must be a default prior to the institution of the suit. I, however, do not decide as to what shall be the period of limitation, because the appellant's default as found is within three years.

16. Coming to the first contention of Mr. Ghose, however, I find it difficult to reverse the finding of fact recorded by the learned Subordinate Judge. The learned Subordinate Judge has said in his judgment that money-order coupons (Ext. B series) and moneyorder registration receipts (Exhibit E series) covered the period from 1966 up to the institution of the suit and even thereafter. But a careful scrutiny of Exhibit ‘B’ series and ‘E’ series shows that there is no moneyorder coupons and registration receipts for August, 1967 and January, 1969 before the suit. The learned Subordinate Judge has further said that there are certain communication portions only instead of moneyorder coupons showing refusal and they do not bear any seal of post office nor any endorsement of refusal on them. He has said, accordingly, that their authenticity is highly suspicious and unworthy of acceptance and reliance. Mr. Ghose has tried to assail this finding mainly on the ground that the learned Subordinate Judge has committed error of record in saying that there are no moneyorder coupons or registration receipts for August 1967 and January, 1969. He has drawn my attention to Exhibit E/33 and E/30 to show that for the months of August, 1967 and January, 1969 too moneyorder receipts - were filed in the court. Nothing, however, has been shown to undo the finding of the learned Subordinate Judge that the Moneyorder coupons and registration receipts do not bear any seal of the post office nor do they bear any endorsement of refusal on them. The finding of the learned Subordinate Judge, that their authenticity is highly suspicious and unworthy of acceptance and reliance, is based not on the fact that there are no moneyorder coupons or registration receipts for August, 1967 and January, 1969 but on the finding that they do not bear any seal of the Post office or contain any endorsement of refusal on them. Mr. Ghose has strenuously contended before me that the comments of the learned Subordinate Judge relate only to Exhibit ‘B’ series and not Exhibit ‘E’ series. He has emphasised that moneyorder coupons do not contain any seal of the post office and if the learned Subordinate Judge has meant by what he has said in this regard about the moneyorder coupons also, then this also is an error of record.

17. I have two reasons not to accept Mr. Ghose's contentions. First reason is that it is not possible to accept that the court has said that ‘they do not bear any seal of the post office’ only in regard to Exhibit ‘B’ series and not in regard to Exhibit ‘E’ series. The learned Subordinate Judge has considered both exhibit ‘B’ series and exhibit ‘E’ series together. The second reason is that the learned Subordinate Judge has recorded a finding of fact about the authenticity of Exhibit ‘B’ Series and Exhibit ‘E’ series. Even if there is some error in this regard, no substantial question of law can arise for interference in a second appeal unless it is shown that Exhibit ‘E’ series did contain seal of the post office and/or the moneyorder coupons did contain the endorsement of refusal on them.

18. Mr. Ghose has submitted that it transpired that during the pendency of the appeal before the learned Subordinate Judge, the original plaintiffs transferred the suit premises in favour of the newly added plaintiffs. He has submitted that by virtue of the sale in the year 1980 in favour of the co-plaintiffs, the original plaintiffs gave up their claims for eviction and thus the suit could no longer proceed at the instance of the newly added plaintiffs. This contention too, however, is not acceptable. The landlords' title would entitle him to possess the property and to evict any tenant upon it. Exercising the said right the original plaintiffs had instituted the suit for eviction. There has never been any cloud or cloak to affect their right to transfer the property. By virtue of the purchase, the co-plaintiffs acquired the title to the suit premises and the right to claim possession thereof. The original plaintiffs have not given up the pursuit. The purchasers has only joined hands and say that they too seek eviction of the tenant. I have already noticed earlier that a tenant's right to occupy a building is subject to the various grounds available to the landlord under section 11 of the Act. Merely because the original landlord had transferred his interest and the new landlord had stepped into his shoes, it cannot be said that the ground upon which the original landlord, could evict the tenant has vanished.

19. A question, however, still remains whether there is any definite finding of default on the part of the tenant recorded by the learned Subordinate Judge or not. It is obvious that the learned Subordinate Judge has fallen in error in holding that the rent sent by moneyorder by the tenant was not a valid remittance under section 13 of the Act. It is also obvious that the learned Subordinate Judge has fallen into an error in taking into consideration the allegation of arrears in payment of rent and default by the tenant from the year 1956 up to the date of the institution of the suit. It seems he has forgotten to decide the question specifically indicated by this Court in its judgment in Second Appeal No. 672 of 1977. Yet on the facts of the instant case, which I shall presently indicate, it is not a fit case in which this Court should interfere in a second appeal. There is no substantial error of law committed by the learned Subordinate Judge which has perverted his adjudication. Assuming for a moment that there are moneyorder receipts and moneyorder coupons for August, 1967 and January, 1969 and they do support the defendants' case that he had sent moneyorder in August, 1967 and January, 1969. I have noticed in particular complete absence of any statement in either of these two documents showing that they were moneyorders sending rent for the months of August, 1967 and January, 1969 to the landlord. The learned Subordinate Judge has referred to the payments made as described in the judgment in Title suit no. 58 of 1958 by the tenant to the landlord, and taken notice of a conclusion recorded in the said judgment that the defendants did not pay the rent from January, 1956 onwards. The learned Subordinate Judge has also noticed that except Exhibit ??? depicting some payments as claimed by the defendant, there is no other material on the record to prove that the defendant has paid Rs. 27,928/5/- annas. He has, accordingly, recorded a finding accepting the defence case in toto regarding the payment of Rs. 27,933/5/- annas. The defendant has also claimed that a sum of Rs. 8,630/- was deposited by way of security money in High Court in Second Appeal no. 192 of 1963. Obviously this security money was in lieu of the rent for the period during the pendency, of the appeal either in the court of appeal below or before this Court. There is good reason to account for the said deposit and deposit of the current rent during the pendency of the Second Appeal no. 192 of 1963 towards the rent because the plaintiffs had already moved against the defendant for his eviction by filing the suit, yet after making a detailed consideration the learned Subordinates Judge has concluded that the defendant-respondent remained a defaulter on the date of the suit i.e 11.12.1971 There is nothing on the record to discredit this finding of default on the part of the appellant.

20. Mr. Ghose has endeavoured before me to explain the grounds and has suggested that after detecting these deposits made in the court and the payments made in advance by the tenant to the landlord as also the taxes paid by him, there has been no default of any rent until institution of the suit in the year 1971. I am not satisfied, however, that the defendant has shown any inclination to continue uninterrupted payment of rent and/or to pay taxes and other amounts towards rent to the landlord. Title suit no. 58 of 1958 met an unfortunate termination under a mistake of law the prevailed those days that a notice under section 106 of the Transfer of Property Act was necessary to terminate the tenancy of the tenant governed by the Bihar Buildings (Lease Rent & Eviction) Control Act, 1947. In course of the bearing of this appeal I indicated to Mr. Ghose, appearing for the appellant, that in case the appellant was willing to vacate the building, reasonable time, would be granted to him to locate and contract alternative premises for running the business. The appellant, however, as Mr. Ghose has informed, is not inclined to do so. Some arguments have been advanced before me on the admissibility of Exhibit ‘5’. If Exhibit ‘5’ is not admissible in evidence, then, as found by the learned Subordinate Judge, there is no material to show that even the alleged sum of Rs. 27,933/51-annas was paid by the tenant to the landlord. The respondents have contested every move of the appellant but seen that his occupation despite default continued right from 1958. As no notice to determine the tenancy was necessary, the right to evict accrued to the landlord on the day two months' rent lawfully payable fell in arrears and it remained so accrued notwithstanding that there has been any payment of rent in the subsequent months. Assuming for a moment that a default beyond the period of limitation could not be the basis of the cause of action for eviction of the appellant, still there are sufficient materials on the record to show that the appellant defaulted in the payment of rent within twelve years if the law of limitation is-one as provided under Article 67 of the Limitation Act, 1963, as also within three years, if the law of limitation as provided under the residuary Article 113 is applied.

21. In view of my conclusion on the question of default in the payment of rent by the appellant, in my judgment there is no merit in this appeal. It is, accordingly, dismissed. The appellant is directed to vacate the premises within six months from today, failing which the delivery of vacant possession of the suit premises shall be effected in favour of the landlord respondents through process of the court.

22. There shall be no order as to costs.