1987 PLP 378 (SCMR)

ZAFFAR HUSSAIN MIRZA, J.‑‑This is a landlord's petition for leave to appeal from the judgment of a learned Single Judge of the Sind High Court, dated 24th November, 1985, whereby the appeal filed by respondent (tenant) against the order of eviction passed by the Rent Controller was allowed.

2. The sole ground urged in support of the eviction application was failure to pay rent by the tenant for a period of 16 months with effect from 1st April, 1976 to 31st July, 1977. The eviction application was filed by the landlord on 15th August, 1977 and the rate of rent for the premises was Rs.120 per month. The tenant's plea was that the present landlord was not his landlord and that he was the tenant of one Abdul Qadeer to whom he was paying rent. Without prejudice to this plea, the tenant also took up the plea that before filing the ejectment application the present landlord had instituted Distress Warrant proceedings against him which were compromised on 7th August, 1977 (before the filing of the ejectment application), whereby it was agreed between the parties that the arrears of rent covering the period of 12 months from May, 1976 to April, 1977, will be paid at the rate of Rs.115 per month beginning from August, 1977. As regards the rent from April, 1977, to 31st July, 1977, it was contended that the rent for the month of May, 1977, was liable to be adjusted from security deposit lying with the landlord under the terms of tenancy agreement which had already expired by efflux of time. The rent for the remaining two months, namely, June and July, 1977, could still be paid by the tenant because the grace period of 60 days had not yet expired on the date of institution of the ejectment application. The learned Judge in the High Court held that so far as the rent due from 1st April, 1976 to April, 1977, it was realized by the landlord by means of compromise in the Distress Warrant proceedings which amounted to waiver and the order of eviction could not be based on non‑payment of the same for the rest of the period. The learned Judge accepted the contention of the tenant as stated above.

3. It is contended by the learned counsel in support of the petition that the consent order, dated 7th August, 1977, passed in Distress Warrant proceedings allowing payment of arrears of rent by installments cannot be construed as condo nation of default by the tenant or waiver of the right of eviction on the part of the landlord. It is also submitted that the tenant could not be allowed to take inconsistent pleas denying the relationship of landlord and tenant between the parties and at the same time pleading that he had committed no default in the payment of rent.

4. It appears to us that no plea of waiver was specifically taken by the tenant in his written statement, although waiver is a question of fact. Besides our attention has been invited to Haji Fida Hussain v. Muhammad Ibrahim Khan 1972 S C M R 262, in which this Court rejected the plea of the tenant that before the institution of the ejectment proceedings the rent in respect of which default was committed was deposited in Court. It was held that for a proper tender of rent by the tenant to escape the consequences of ejectment such tender must be strictly in accordance with the requirement of law on the failure of which the liability for ejectment is incurred. Learned counsel also relied on Shameem Ahmad Chouduri v. Musharaf Ali Khan 1982 C L C 2284, in support of the proposition that mere filing of Distress Warrant proceedings for recovery of rent, does not automatically amount to waiver to right of landlord to take action against the tenant in respect of default.

5. The contentions advanced raise substantial questions of law of general importance. Leave is accordingly granted. Security for costs Rs.500. The appeal shall be prepared on the present record but it will be open to parties to file additional documents if any. M. I. Leave granted