1996 PLP 383 (MLD)

(ii) Safdar Ali Ghauri and 7 others v. Sh. Maqbool Elahi 1982 CLC 748 (iii) Inayat Ullah v. Zahoor ud Din and another 1987 SCMR 1313

5. As against the above arguments learned counsel for the respondent have contended that there being admitted default in payment of rent which had not been deposited in accord with the terms of the tenancy, the findings of fact recorded by the two Courts below on the issue of default are unexceptionable and are not liable to be interfered with in this second appeal. It is further contended that the default having been committed cannot be said to have been waived merely because the amount of rent deposited by the appellant has been withdrawn by the respondent from her Bank account ‑as there is no evidence on the record that at the time of withdrawal, the respondent who is a lady and lives outside the country, knew that the deposit is violative of the terms of tenancy. In support of their contentions learned counsel placed reliance on the following cases: (i) Muhammad Younas v. Abdul Hamid PLD 1975 Lah. 1326 (ii) Nasir Malik v. Additional District Judge, Lahore and another 1983 CLC 748. (iii) 'Dr.Syed Waris Ali Tirmizi v. Mst. Liaqat Begum 1980 SCMR 601 (iv) Abdul Rashid v. Saleh Muhammad 1980 SCMR 506. (v) Muhammad Saleh v. Muhammad Shafi 1982 SCMR 33

6. In case of Muhammad Yunas v. Abdul Hamid PLD, 1975 Lah. 1326 it has been held that even if the arrears of rent are tendered by Money‑Order before institution of ejectment petition and the same are accepted by landlord after filing of petition, there being no provision regarding waiver of default by the landlord, it cannot be said that the default in payment of rent stands waived for the purposes of seeking of ejectment of the premises. In case of Alif Din v. Khadim Hussain 1980 SCMR 767 it has been held that if the landlord accepts the rent after the due date as agreed in‑the lease deed, it amounts to condonation of default, and therefore, ejectment on the ground of default in payment of rent stands waived. In the same judgment it has been held that after the efflux of period of tenancy as originally fixed in the deed of tenancy, all the terms of tenancy entered therein would continue to govern the tenancy except that in order to constitute default in payment of rent instead of counting the period for payment of rent as fixed in the deed of tenancy, period of sixty days shall be counted, instead thereof. In case of Nasir Malik v. Additional District Judge, Lahore and another 1983 CLC 748 it has been held that default once occurred cannot be waived even by subsequent deposit made before the filing of the ejectment petition at page 750 of the report it has been held as under: ‑‑ "

5. I have considered the contentions raised by learned counsel for the parties and find that the learned Additional District Judge after appreciating evidence on the record disbelieved Maqsood Ahmad, nephew of respondent No.2, who allegedly received cheques of the monthly rent of the disputed property and passed on to the landlord. There appears to be sufficient force in the submission of the learned counsel for the respondent that if the amounts of rent was tendered by the petitioners for the month of November, 1979 to the respondent No.2 by means of cheque they did not verify from their bank as to whether the same was encashed within time, nor deposited the amount before the due date. Undoubtedly the petitioners committed default in making payment of rent for the month of November, 1979. The explanation given for condonation have no substance. The default in payment of rent as envisaged under section 13(2)(i) of the West Pakistan Urban Rent Restriction Ordinance, 1959 once occurred cannot be wiped away even by subsequent deposits of amount made before filing of the ejectment petitions. Furthermore; the petitioners in, their replies to the ejectment petitions did not plead that they had tendered rent through Maqsood Ahmad, but led evidence to prove that they handed over cheques to Maqsood Ahmad (R.W.2) for passing on to respondent No.2, which is indicative of the fact that the evidence led by them is inconsistent with their pleadings. The mere fact that the petitioners are old tenants and had been paying regular rent of the premises to the respondent No.2 did not absolve them from making payment of the rent for November, 1979 before the due date. The other contention of the learned counsel for the petitioners that tender of rent through cheque being a valid tender can only be examined if the petitioners first establish beyond doubt the delivery of cheques to the respondent No.2. The evidence of Maqsood Ahmad (R.W.2) has been rejected, which findings cannot be set aside in writ jurisdiction. Learned counsel for the petitioners could not plead lack of jurisdiction in the respondent No.l to adjudicate upon the matter. Even if the impugned orders passed by him are held to be erroneous the same cannot be interfered with in Constitutional jurisdiction of this Court. " In case of Dr. Syed Waris Ali Tirmizi v. Mst. Liaquat Begum 1980 SCMR 601 it has been held that in absence of an agreement to the effect that the landlord had agreed to alter the terms of the tenancy and to receive rent after long intervals, the delayed payment of rent results in default, in consequence whereof tenant shall be liable to be evicted. In case of Safdar Ali Ghauri and 7 others v. Sh. Maqbool Elahi 1982 CLC 748, it has been held that the delayed receipt of the rent by the landlord amounts to condonation of default. In case of Inayat Ullah v. Zahoor ud Din and another 1987 SCMR 1313, it has been held that creation of difficulties by the landlord in receipt of rent by him does not constitute wilful default. In case of Muhammad Saleh v. Muhammad Shafi 1982 SCMR 33, it has been held that omission to enforce one's legal right strictly could not give rise to inference that such right had been abandoned. It is further held that to establish waiver by conduct it must be shown that person entitled to a right had knowledge of breach thereof and that he had acquiesced or failed to act, notwithstanding. Mere failure to take action due to ignorance of breach of his right, cannot be said to give rise to any waives by conduct.

7. I have considered the arguments addressed by the learned counsel for the parties, have perused the record and have gone through the relevant case‑law on the subject. Admittedly the rent has been deposited after delay even if the maximum statutory period of 60 days is granted to the appellant. The explanation given by the appellant for the delayed deposit, to the effect that it was due to conduct of the special attorney, stands falsified by the fact that the said attorney was appointed on 25‑3‑1988, whereas the default pertains to the period prior thereto. Both the Courts below have also disbelieved the plea to justify the late deposits. No misreading or non‑reading of evidence has been pointed out by the learned counsel, therefore, no case has been made out for interference with concurrent findings of fact, on the issue of default.

8. As regards plea of waiver and condonation of default in payment of rent, there is no cavil with the proposition that a landlord by acceptance of rent deposited late with the knowledge of the fact that as a result of the commission of default by the tenant, he has acquired a right of ejectment, can condone the default and hence waive the said plea for the purpose of seeking ejectment of the tenant yet each case has to be decided on its own merits. Waiver means an intentional relinquishment of a known right. In the case in hand, the landlady lives outside the country. There is no evidence on record of this case to prove that she knew at the time of withdrawal of rent from her account that has been made after delay. Therefore, it is not established on record that she had the knowledge of commission of default by the tenant at the time of withdrawal of the rent deposited in her account, therefore, it cannot be said that she either had condoned the delay in late deposit of the rent or has waived her right of ejectment on the ground of default in payment of rent. Cases of Alif Din, Safdar Ali and Inayatullah (supra) relied upon by the learned counsel for the appellant in support of his case are distinguishable on facts. In those cases default was condoned with knowledge. The case in hand is fully covered by the cases of Nasir Malik Muhammad Yunas, Dr. Syed Waris Ali and Muhammad Saleh (supra). Above taken view is also supported by the law declared in case of Syed Jamal Shah v. Mst. Tasmina 1986 CLC 1671 wherein at pages 1674 to 1676 of the report it has been held as under: "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 Collector. 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 PLD 1983 SC (AJ&K). 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 pan obligation to prove waiver by conclusive proof". In another case, reported as Badruddin H. Mavani v. Government of Pakistan and another 1982 CLC 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 CLC 34 my learned brother, Tanzil‑ur‑Rehman, J. while following Muhammad Saleh v. Muhammad Shafi 1982 SCMR 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 Muhammad Saleh v. Muhammad Shafi 1982 SCMR 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 inaction 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 Jammu 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 PLD 1957 SC (India) 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 the 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 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 Bai's case received approval of the Supreme Court in Muhammad Saleh v. Muhammad 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 any 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.

8. In view of the above, it is held that the respondent had neither condoned the default nor waived the same and, therefore, is entitled to seek ejectment on the ground of default. Resultantly, I see no force in this appeal; E hence, the same is dismissed. The appellants are, however, given two months' time with effect from today to vacate the shop in dispute. There shall be no order as to costs. A.A./A‑866/L Appeal dismissed