1986 PLP 1671 (CLC)

Thereafter, according to the appellant, rent was regularly being deposited by him and twice that is, on 15‑9‑1980 and 18‑4‑1982, rent deposited by the appellant was withdrawn by the respondent after getting the Nazir's report. During the pendency of these proceedings the respondent landlady also filed another Case (No.945 of 1981) against the appellant under section 14 of the Sind Rented Premises Ordinance, 1979 but ultimately the said case was dismissed by the Rent Controller on 6‑4‑1982. The respondent had also filed a Suit (No.3042 of 1981) in the Court of XXIIIrd Civil Judge, 2nd Class, Karachi, challenging the learned Rent Controller's Order of fixing tentative rent in respect of the premises in ‑question. An application under Order VII, rule 11, C.P.C. was, however, moved by the appellant seeking rejection of the plaint in that suit but the prayer therein was declined. Thereafter, the appellant filed revision application in the Court of the First Additional District Judge, Karachi, which was ultimately allowed and the plaint filed by the respondent was rejected. Thereafter, the evidence of the parties was recorded by the learned Rent Controller and after closing of her evidence, the respondent on 16‑10‑1980 during the cross‑examination of the appellant, moved application dated 8‑3‑1983 under section 16 (2) of the Sind Rented Premises Ordinance, 1979 for striking off the appellant's defence. It, was alleged in the application that the appellant had failed to deposit rent as earlier ordered by the Rent Controller on 1‑4‑1980. A notice of this application was then ordered to be sent to the appellant by the Rent Controller and a report from the Nazir was also called for. An application had also been moved by the respondent to call for the report from the Nazir in regard to the deposits made by the appellant since passing of the tentative rent order dated 1‑4‑1980 after which a complete report was sent by the Nazir of the District Court, in respect of the rent deposited by the appellant. It seems, that after receiving notice of the application under section 16 (2) of the said Ordinance, objections were filed by the appellant wherein it was pointed out that the appellant had deposited a sum of Rs.3,400 on 9‑4‑1980 in connection with Rent Case No.1708 of 1979, earlier filed by him before the Rent Controller. The appellant had also averred therein that Rs.11,800 had also been deposited towards rent covering the period from November, 1978 to September, 1983. After receiving such objections the learned Rent Controller called for another report from the Nazir which seems to have been received by him on 28‑11‑1984. Thereafter, the arguments of the parties were heard and the impugned order was passed by the learned Rent Controller. Mr. S.H. Fani, the learned counsel for the appellant in this case has raised the following arguments. Firstly, it has been contended by him that no action was called for on the application under section 16 (2) of the said Ordinance as the same was vague and had failed to contain any details in respect of the dates on which default had allegedly been committed by the appellant. The next contention of Mr. S.H. Fani was that even if any default was committed by the appellant, then the conduct of the respondent showed that the objection in regard to striking off the appellant's defence had been waived by the respondent. To support this contention, the learned counsel pointed out that twice, on 15‑9‑1980 and 18‑4‑1982, rent was collected by the respondent after perusing the Nazir's report, but no such objection was raised before the Rent Controller until 8‑3‑1983 which is a clear indication that that objection had been waived by the respondent. Lastly, it was contended that the impugned order is vague as it failed to give reasons for the conclusions drawn by the learned Rent Controller. The contentions of Mr. Asar Hussain, the learned counsel for the respondent, on the other hand, have been that the appellant had complete knowledge in regard to the dates in respect of which default had been committed by him as the relevant documents such as, Nazir's Report etc, were also filed by the respondent alongwith the application for striking off the appellant's defence. It was next contended, that the question of default was argued three times before the learned Rent Controller and various reports from the Nazir in that respect were called for by the learned Rent Controller, therefore, there was sufficient material before the learned Rent Controller, to enable him to give his findings on the point. The learned counsel further pointed out that from the impugned order it was clear that the learned Rent Controller had specifically referred to and identified each and every default committed by the appellant and, therefore, he had clearly applied his mind to the facts of the case. The next contention of Mr. Asar Hussain was, that even if the application for striking off the appellant's defence did not specify the months or the items in respect of which default was allegedly committed by the appellant, that would not make the impugned order illegal because once it was shown to the Rent Controller that default had been committed the Rent Controller after due enquiry could come to the same conclusion himself and then the only course open for him would be to strike off the defence of the tenant. Lastly on the point of waiver, Mr. Asar Hussain argued that the conduct of the respondent does not in any manner suggest that she had waived her right to claim benefit under section 16 (2) of the Ordinance and mere delay on her part to take such objection before the Rent Controller did not constitute waiver. I shall first advert to Mr. Fani's contentions. The first contention of Mr. S.H. Fani is, that the application for striking off the appellant's defence was vague and as a consequence of which the order impugned, could not have been passed. This contention seems to be without force as the following factors are to be taken into consideration. Admittedly, the respondent had first sought a complete report from the Nazir of the Court in respect of the deposits made by the appellant. Thereafter, when application for striking off the appellant's defence was made by the respondent before the Rent Controller, the same was referred to the Nazir for his report and a detailed report was once again sent by the Nazir. A notice of this application was received by the appellant. Thereafter, the appellant filed objections, denying that any default had been committed by him as, according to him, arrears of rent amounting to Rs.3,400 had already been deposited by him on 9‑11‑1980 vide ledger No.L‑4174 in Rent Case No.1708 of 1979. It was further averred by him that a total sum of Rs.11,800 had been deposited in Court which covered rent from November, 1978 to September, 1983. Thereafter, the learned Rent Controller called for another report from the Nazir in respect of the deposits alleged to have been made by the appellant in Rent Case No.1708 of 1979. The report of the Nazir which was sent on 28‑11‑1984 shows various deposits made by the appellant between 4‑7‑1979 and 2‑1‑1980. It was then, after perusing the three reports and hearing the arguments of both the parties, that the impugned order was passed by the learned Rent Controller. In this order, the learned Rent Controller seems to have clearly and distinctly referred to each and every incident of default committed by the appellant. Thereafter, even if the respondent's application was wanting in details, the learned Rent Controller was still empowered to pass the order, striking off the appellant's defence since the language of subsection (2) of section 16 nowhere suggests that the Rent Controller can strike off the tenants defence only when application has been made to him by the landlord in that behalf. Conversely, it appears that the Rent Controller, on his own motion, can strike off the tenant's defence if he finds that the tenant has failed to deposit arrears of rent or pay monthly rent as ordered by him under subsection (1) of section

16. Since the learned, Rent Controller did consider the Nazir's reports and the parties were heard before passing of the impugned Order, that in my opinion, sufficiently empowered him to strike off the appellant's defence, since the factual position has not been controverted by the appellant's counsel even before this Court. The contention of Mr. Fani, is, therefore, without force and as such unacceptable. The second contention of Mr. S.H. Fani has been, that even if, assuming that default had been committed by the appellant in respect of the payment of rent, the respondent failed to act promptly by making an application to the Rent Controller for striking off the appellant's defence and, therefore, by her conduct, the respondent would be deemed to have waived her right to make such application before the Rent Controller. In this respect, the learned counsel has further emphasised that the respondent was in possession of knowledge in regard to the alleged default as twice, that is, on 15‑9‑1980 and 18‑4‑1982 rent was withdrawn by her, after the Nazir had supplied to her complete details in respect of the deposits made by the appellant. Reliance in this respect has first been placed on Ali Hyder Khan v. Sher Afzal Khan and 13 others P L D 1983 S C (A J & K)

5. In that case, the term "waiver" has been interpreted as follows:‑ "Waiver precisely means, to abandon or relinquish, a known vested right by an express declaration or by conduct." It was further held in the same case that "any person who intended to take benefit of waiver is under an obligation to prove waiver by conclusive proof". In another case, reported as Badruddin H. Mavani v. Government of Pakistan and another 1982 C L C 44, a Division Bench of this Court has said:‑ "The waiver, abandonment or lapsing of a right, legally capable of being waived, abandoned or lapsed may either be expressly made by the person concerned, or it may be inferred from his conduct and all other attending circumstances of the case." In Shaukat Ali v. Sakhawat Hussain 1985 C L C 34 my learned brother, Tanzilur Rehman, J. while following Mohammad Saleh v. Mohammad Shafi 1982 S C M R 33 observed as follows:‑ "The 'waiver, therefore, is either express or implied. Waiver by implication can be inferred from the circumstances of each case. However, to prove waiver there should be some clear and decisive act or conduct beyond mere silence. Reliance is placed on the authority of the Supreme Court in Mohammad Saleh v . Mohammadi Shafi 1982 S C M R 33 wherein it was held that 'omission to enforce one's legal right strictly cannot give rise to an inference that the right has been abandoned.' The Supreme Court in the case referred to above, held that 'in order to establish 'waiver' by conduct' it must be shown, firstly, that the person entitled to the right had knowledge of the breach thereof, and secondly, that he had acquiesced or failed to act, notwithstanding that knowledge. Therefore, mere failure to take objection or to take action due to ignorance of the breach of one's right cannot be said to give rise to any 'waiver' by conduct." In another case, reported as Mst. Bachi Bai v. Ghulam Abbas PLD 1972 Kar. 278, which was also decided by this Court, Dorab Patel, J., (as he then was), after discussing various cases on the point came to a conclusion that even if a landlord withdraws rent after the tenant's default his action in so doing will not by itself amount to waiver or lead to an estoppel or election. It was further held by the learned Judge that delay by itself cannot amount to failure. A perusal of these cases would show that in order to constitute waiver, something more than mere in action or delay in asserting one's rights would be necessary. In Ali Hyder Khan v. Sher Afzal Khan and 13 others, the question before the Supreme Court of Azad Jamnu and Kashmir was altogether different, as in that case the appellant had raised a point before the District Judge and the High Court but had failed to press the same in arguments before the High Court. It was, therefore, held that such conduct of the appellant indicated abandonment of such point. Reference in that case was made to P L D 1957 S C (Ind.) 346, in which it was held that waiver cannot always be inferred from mere failure of the party to take objection but the same can be inferred only if it is shown that the party knew about the relevant facts and it had waived its right to take the objection. A lot of emphasis was laid by Mr. S.H. Fani on the observations made in this case as in the instant case also, admittedly, the respondent had twice withdrawn the amount deposited by the appellant, with full knowledge that default had been committed by the tenant, yet she waited till 8‑3‑1983 to press for striking off the appellant's defence. It, however, appears that a complete answer to Mr. Fani's argument is provided by the case of Mst. Bachi Bai v. Ghulam Abbas, the facts of which are not dissimilar to the instant case. There also, the application for striking off the tenant's defence, was made by the landlord after considerable delay, thus giving rise to a similar question. The learned Judge, who wrote the judgment, after referring to various cases on the point, finally came to a conclusion that 'waiver' meant a tacit agreement and delay by itself cannot constitute waiver. The view taken in Mst. Bachi Bails case received approval of the Supreme Court in Mohammad Saleh v. Mohammad Shafi to which I have earlier referred. In that case, it was also held that the question as to default due to non‑compliance with an order of tentative rent passed by the Rent Controller is to be considered by the Rent Controller himself, therefore, the question can legitimately be raised as to whether the landlord has Eny right to waive away power of the Rent Controller under the relevant provisions of law to strike off the tenant's defence. I, therefore, cannot agree with Mr. Fani's contentions in regard to waiver. In, the end, Mr. Fani contended that the order of the learned Rent Controller is vague as it is devoid of proper reasoning. This argument hardly has any force. It is clear from the impugned order that the learned Rent Controller has passed the same after perusing various reports of the Nazir in respect of the deposits made from time to time by the appellant. While passing the order, the learned Controller has clearly referred to the dates in respect of which default was committed by the appellant. Under such circumstances one fails to understand, how the order is vague. I, therefore, find no force in this appeal and the same is hereby dismissed. The parties are however, left to bear their own co A . A . Appeal dismissed.