1982 PLP 772 (CLC)

14. Munir in his Book entitled `Principles and Digest of the Law of Evidence' 1969 Edition (profited in Pakistan), at page 359 has stated in this regard as follows : "Waiver is an intentional relinquishment of a known right, or such conduct as warrants an inference of the relinquishment of such right it implies consent to dispense with or forego something to which a person is entitled. It is contractual and may constitute a cause of action. It is an agreement to release or not to assert a right. Mere omission to claim or enforce a right for some time does not amount to waiver of the right."

15. The plea of 'waiver' came up for consideration in Riaz & Kandawalla Ltd., Karachi v. Trading Corporation of Pakistan, Karachi (P L D‑1979 Kar, 300). In this case it was contended by the learned counsel for the defendants that failure of the plaintiff to claim profits on the additional payments involved, constituted, waiver of rights and the plaintiffs were estopped from altering their position. On this contention it was observed by my learned brother Zaffar Hussain Mirza, J. at page 306 of the report as follows : "Even, otherwise waiver arises by the intentional relinquishment of a known right, claim car privilege. In other words the term implies the intentional relinquishment of a known right after knowledge of the facts. It implies the intentional forbearance to enforce a right, and necessarily, therefore, assumes the existence of an opportunity for choice between the relinquishment and the enforcement of the right." On the facts of the case the plea of waiver was negatived on the ground of lack of correct knowledge on the part of the plaintiff in regard to the method of calculation of the profits.

16. In Midnapore Zemindary Co. Ltd. v. Kumar Chandra Singh Dudhuria and others (A I R 1943 Cal. 544), a Division Bench of Calcutta High Court at page 551 of the report explained the meaning of the term 'waiver' as `the abandonment by conduct of a known right. It is an implied agreement not to exercise legal rights'.

17. In they present 1 case also it is not proved that the respondent had acquired knowledge of defaults made nor have any facts been pleaded which could show that the appellants had consciously or knowingly waived the right. Mere delay in the assertion of the right would not defeat it. It was held by Lord Bowen in Selwya v. Garfit ((1887) 38 Ch. D 273). It was said by the learned Lord "Delay is not waiver, inaction is not waiver though it may be evidence of waiver." But without knowledge of the right there could not be any waiver. When a tenant deposits monthly rent no notice is issued to the landlord either by him or by the Court. No duty is cast under the law on the landlord to enquire every month whether the tenant is duly depositing the rent or not. Therefore, whenever' the landlord acquires knowledge of default he can, during the pendency of the proceedings, make necessary application, for no time for making such an application under such section 13 (6) of the Ordinance has been prescribed. Knowledge of the right or claim or privilege, and its intentional relinquishment are sine qua non to establish a plea of waiver. Both the conditions are missing in the present case.

18. Now, I would deal with the cases cited by the learned counsel for the appellants. No doubt in Syed Masood Hussain and others v. Muhammad Saeed Khan and others, Sardar Muhammad Iqbal, J., has laid down that if the landlord fails to object to the default in payment of deposit of rent under section 13 (6) of the Ordinance for one year such a default should be deemed to have been waived by the landlord but this view has not been followed by this Court in more than one case. The first case to be referred to is of Mst. Bachi Bai v. Ghulam Abbas, wherein Dorab Patei, J. fully considered this case and the cases on which reliance was placed in this case and distinguished them. It may be useful to reproduce hereinbelow in extenso the relevant observations, which appear in, paragraphs 6 to 8 of the judgment: "(6) Mr. Jamaluddin however, submitted that his argument was suppor ted by a judgment of a learned Single Judge of Lahore seat of the West Pakistan High Court in Syed Masood Hussain v. Muhammad Saeed Khan P L D 1965 Lah.

11. There the facts were that the tenant had twice failed to comply with the Rent Controller's order for deposit of monthly rent. The landlord had therefore filed an application for striking off his defence, but because he had filed this application more than one year after the defaults by the tenant, the learned Single Judge held that he had waived his right to have the tenant's defence struck off. The judgment cited is distinguishable, because, in the present case, the respondent had continued to violate the Rent Controller's order for deposit of rent right up to the date of the respondent's application. However, Mr. Arfin submitted that this judgment required further consideration, and in deference to the arguments of both the learned counsel I have examined it carefully. I find that the main point agitated before the Court by the appellant landlord was that a landlord could not waive his rights under subsection (6) of section

13. The learned Single Judge rightly repelled this submission (I say so with respect), and further held, on the facts, that the appellant had waived his rights under subsection (6) by his delay. Mr. Jamaluddin relied on this finding of the learned Single Judge that the appellant had waived his rights merely by his delay in prosecuting his remedy under subsection (6). But as explained by the Privy Council, waiver means an implied agreement, therefore, in my humble opinion delay by itself cannot amount to waiver. However in taking a con trary view, the learned Single Judge appears to have relied on the fact that although the respondent tenant gave evidence, the appellant had not cross‑examined him on his failure to deposit rent in accordance with the Rent Controller's order under subsection (6) of section 1 3 But as the respondent tenant was giving evidence in the main case; be could have been cross‑examined only on the allegations of the appellant in his eviction application. Necessarily those allegations could not include any averment with regard to non‑compliance with the order for deposit of rent, as that order had been passed long after the filing of the appellant's eviction case, and in these circumstances the appel lant's conduct could amount to waiver only if he was under an obligation to file an application for striking off the respondent's defence immediately or before evidence in the main application began. But as the right to file an application under subsection (6) is not subject to any restriction, whether of limitation or otherwise, the view, of the learned Single Judge is based, as submitted by Mr. Jamaluddin on the assumption that delay by itself amounts to waiver. With great respect, this would be reading into subsection (6) a qualification which is not contained in it, therefore I am not able to agree with this view. However, the learned Single Judge has also relied on a judgment of the Judicial Committee report in Vellayan Chattiar v. Government of the Province of Madras P L D 1947 P C 160 and a judgment of the Madras High Court reported in Bad! Venkataswami v. Adada Mehalakshmi A I R 1949 Mad.

747. The Madras case turned solely on the effect of an express waiver by the Advocate of the defen dant, therefore it had no relevance whatever to the question whether delay by a party in enforcing his remedies amounted to waiver. As to the Privy Council case, the Judicial Committee held in its judgment that Government could waive its immunity under section 80, C. P. C. and that waiver could also be inferred from circumstances. But ors the facts it rejected the appellant's plea that the Province of Madras had waived its immunity under section

80. However, whilst observing that the respondent could have ‑ waived its immunity by conduct, Lord Simonds observed at page 164. "The burden lies on the appel lants to establish the facts upon which they rely for raising the implication or creating the estoppel . . . . . . . . . . '. In my humble opinion, these observations are not consistent with the view that delay by a litigant in enforcing his remedies by itself amounts to waiver. As I have pointed out earlier, a litigant's conduct might amount to waiver when it is coupled with an estoppel. But 1 do not see how a landlord's delay in asserting his remedies under subsection (6) can possibly create any estoppel or amount to election which is but another form of estoppel. (7) Additionally, I have to observe here with reference to the case‑law on which the learned Single Judge relied that the waiver by a defendant of an immunity such as is contained in section 80, C. P. C. has reference to the formalities prescribed by the Civil Procedure Code. Thus the provisions of Order VIII are applicable to Governments so that if a defendant Government does not plea the bar of section 80, C. P. C. in its written statement, it is deemed to have waived its immunity. Similarly, there is authority for the proposition that if, after having pleaded the bar of immunity in its written statement, the defendant Government does not have an issue framed in this respect it is deemed to have waived its rights. However, in such cases the waiver arises, not because of inaction by the defendant, but because the provisions of the Civil Procedure impose a duty on the defendant not to be silent. It is only because of this obligation not to be silent that the failure of a Government to plead its immunity under section 80 amounts to waiver. This principle can be extended to sub section (6) only if it expressly or implicitly imposes a duty on the land lord to take action and not to remain silent when a tenant has failed to comply with an order for deposit of rent. Now, according to this ,subsection a Controller has to pass an order for deposit of rent and in the event of any dispute about the amount or rate of rent due, he has to determine only the approximate amount and "direct that the same be deposited by the tenant before a date to be fixed for the purpose'. The subsection further reads. "If the tenant makes default and in the compliance of ‑`such an order, then if he is the petitioner, his applica tion shall be dismissed summarily and if he is the respondent his defence shall be struck off, and the landlord put into possession of the property without taking any further proceedings in the case". In my humble opinion, the subsection does not impose any duty on the landlord not to be silent, therefore, it does not lend any support to the view that a landlord's delay in asserting his remedy under this sub section would by itself amount to delay, therefore, with great respect, I am not able to follow the view taken in Syed Masood Hussain's case. (8) 1 am also not able to accept learned counsel's argument that a land lord waives his right under this subsection if he draws out the rent deposited in Court after default by the tenant in compliance with the Rent Controller's order. This is because the tenant has to deposit rent for the landlord's benefit, and his obligation so to do does not come to an end because of his default. Further, as the subsection does not impose any restriction on the landlord's right to draw out the rent deposited he is free to do so at his convenience, so that even if he does so after a tenant has committed default, this would not in any way be inconsistent with his desire to prosecute his remedies against the tenant in the main eviction case or under subsection (6). I am, therefore, of opinion 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." I respectfully agree with the above reasoning. The view taken by Dorab Patel, J. in Mst. Bachi Bai's case has been followed by M. A. Rashid, J. in S. M. Hamid Ali and 2 others v. C. R. Machado (1), wherein the learned Judge has also noticed the case of Syed Masood Hussain and others v. Muhammad Saeed Khan and other. It may he useful to reproduce the relevant observations hereinbelow which appear at page 819 of the report: "As regards the second point the learned counsel for the appellant relies upon Jalfluddin v. Azizuddin P L D 1963 Lah. 436 in order to put forward the proposition that the principle of waiver is not foreign proceedings under the Ordinance. The second authority relied upon by him is that of Masood Hassan v. Muhammad Said Khan P L D 1965 Lah. 11 which is to the effect that where a landlord fails to take objection for nearly one year the default should be held to have been waived by the landlord. The learned counsel has also referred me to the case of Bachi Bai v. Ghulam Abbas (P L D 1972 Kar. 278) where the main principle laid down is that the delay in asserting the default by itself does not amount to waiver. But the learned counsel has tried to distinguish this ruling on facts of the two cases. The contention of the learned counsel is that in Bach! Bai's case there was a persistent and continuous default in the deposit of tentative rent till the applica tion was made and in the case before me there is only one initial default at the time of first deposit of arrears of rent. But nevertheless Bachi Bai's case lays down a law on the question of waiver. In this ruling Patel, J. has laid down the definition of 'waiver' and if delay would amount to such waiver. While relying upon the Privy Council's judgment in Dawsons Bank Ltd. v. Nippon Mankwa Kabshahi Al R 1935 P C 79 and the passage of waiver as contained in Halsbury's Law his Lordship has observed that waiver is an agreement to realise or not to assert a right and therefore, in the absence of any period prescribed for filing an application for the striking off the defence under the Ordinance, the delay by itself does not amount to waiver although it may be an evidence of such waiver, while laying down this law the ruling as contained in Syed Masood Hussain's case has been dissented from. I am in respectful agreement with the view taken in Bach,` Bai's case."

19. Mr. Abdul Matin, learned counsel for the respondents has also brought to my notice an unreported judgment in Second Appeal No. 275 of 1973 (Rubab Bai and others v. Fakhri Printing Press) wherein on the question of delay in making the application under section 13,;6) of the Ordinance it was observed by S. A. Nusrat, J. as follows :‑ "The learned counsel further contended that no period of limitation is prescribed for filing of application under section ` 13(6) of the Rent Ordinance and any question of waiver, therefore, did not arise. The above contentions of the learned counsel have much force and I have no hesitation in accepting the same." A photostat copy of the judgment submitted by Mr. Abdul Matin, Advocate is placed on record. A petition for Special Leave to Appeal was filed in the Supreme Court against the judgment in IInd Appeal No. 275 of 1973, but the leave was refused as would appear from the order dated 27‑2‑1980, a photostat copy whereof (1) P L D 1976 Kar. 817 is filed by the Advocate and is placed on the record. On the question of delay in filing the application under section 13(6) of the Ordinance it was observed by the learned Judges of the Supreme Court as follows : "Learned counsel then submitted that the respondents had not filed their application for striking off the petitioner's defence promptly. It is true that the respondents did not file their application for striking off the petitioner's defence promptly, but nothing turns on this delay."

20. In Midnapore Zemindary Co. v. Kumar Chandra, the landlord whc was entitled to additional rent had not chosen to claim it for many years, On these facts it was observed that `the fact that the landlord had not chosen to claim additional rent for so many years' (underlining* is mine) cannot in the circumstance of this case amount to waiver of his right to additional rent.:

21. Now, remains the case of Ghulam Muhammad and 2 others v. Zia Anwar and 3 others cited by the learned counsel for the appellants to be discussed. In this case an application for ejectment of the tenant was filed on the ground that he had sublet the shop. In defence it was pleaded that the shop in question had been taken on rent by one of the partners for the benefit of the partnership firm, on consideration of the evidence it was observed as follows :‑ "As discussed above there is ample evidence on the record to show that the respondents did have the knowledge after the user of the shop by the firm at least since 1967 (Exh. R/1) though according to the evidence on record the firm had been doing its business in the shop since 1961/63. There is no allegation of default in payment of rent. This fact supports the contention of the appellants that the, respondents have been accepting rent from the firm throughout. Admittedly the respondents had an unfettered right to treat the appellants as their tenants and waive their right to eject them on account of subletting. This view applies both to contractual as well as statutory right. Reference be made to Halsbury, Vol. 14, III Edn., page 637 A person who is entitled to the benefit of a stipulation in a contract or of a statutory provision may waive it, . . . . . . . . . Waiver of this kind depends upon consent and the fact that the other party has acted upon it is sufficient consideration. Where the waiver is not express, it may be implied from conduct, which is inconsistent with the continuance of the right. It seems that, in general, where one party has, by his words or conduct, made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, then, once the other party has taken him at his word and acted on it, the party who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relation ship ..The Privy Council in Dawsons Bank Ltd. v. Nipyon Mankwa Kabushahi Kaisha Japanese Cotton Trading Co. Ltd. A I R 1935 P C 79 dealt with as. " . . . . waiver is contractual and may constitute a cause of action ; it is an agreement to release or not to assert a right." This could be express or may be inferred from circumstances. "Waiver" is an implied agreement not be assert one's contractual or a statutory right. In view of the above, the act of the respondents to go on receiving rent for years knowing that it is the firm and not Ghulam Muhammad, who was doing business there, amounts to waiver. They, therefore, shall be estopped to turn round and invoke their right which they abandoned by their conduct and accepted the firm as their tenant." This case is distinguishable on facts as in this case the landlord had the knowledge that the shop was being used by the firm for several years and rent was being accepted by him from the firm, and therefore the plea of waiver was accepted.

22. I may mention that a learned Single Judge of Lahore High Court in Muhammad Hafeez v. Muhammad Suleman and another (1979 C L C 757) has taken the view that mere neglect on the part of the landlord does not mean waiver, specially when no period of limitation has been prescribed by law for seeking ejectment of the tenant on the plea of subletting.

23. I, therefore, find no substance in this appeal and accordingly dismiss it, leaving the parties in the circumstances of this case to bear their own costs.

24. Mr. Shaikh Mir Muhammad requests that the appellants may be allowed six months' time to vacate the shop as they are doing business therein for a long time. Mr. Abdul Matin however, submits that the appellant has already been allowed two months' time by the Controller and one month more time by the First Appellate Court and therefore he may be allowed one month more. Since the appellants are carrying on business it would be just and fair if they are allowed 4 months more time to vacate the shop premises. I accordingly allow them 4 months' time from the date hereof to vacate the shop premises and handover its possession to the respondent. M. Y. H. Appeal dismissed.