1989 PLP 601 (MLD)

10. Mr. Muzaffar Ali Khan raised the following contentions before me:‑ (i) That the learned Rent Controller failed to appreciate that the appellants have been living in the demised premises to the knowledge of the respondents Nos. 1 and 2 or their attorney, as joint tenants and exclusively since 1968 and as such the question of sub‑letting did not arise in the instant case. (ii) Relying upon the decisions reported in PLD 1979 Kar. 597; PLD 1980 Kar. 126; PLD 1982 Kar. 188; 1981 CLC 339; 1985 CLC 332 and 1986 CLC 713, the learned counsel in the alternative and without prejudice to his above contention, submitted that having acquiesced to the transfer of her rights in the demised premises for the last over 11 years by Mst. Jamila Nighat in favour of the appellants, the respondents Nos. 2 and 3 waived rights to seek eviction on the ground of sub‑letting and/or transferring of the rights by the alleged tenant in favour of the appellants. (iii) The counsel further submitted that even if it is presumed that the appellants are not the tenants of the respondents Nos. 1 and 2 then too the appellants have been termed as sub‑lessees of Mst. Jamila Nighat. However, no specific question about their coming into possession of the demised premises in June, 1979 was put to the appellants or in any manner proved on record. (iv) Insofar as default is concerned, according to the learned counsel, on the own showing of the respondents Nos. 1 and 2 the rent for March, 1979 had been paid to them through Rent Receipt No. 691 dated 1‑3‑1979 as is evident from the counter‑foils of the receipts produced on their behalf. The claim of the respondents Nos. 1 and 2 to the effect that the appellants were in arrears of rent from February, 1979 was thus patently false as is borne out from the documents coming out of their own possession. The amount of monthly rent being deposited in Miscellaneous Rent Case filed at the instance of appellants is being regularly withdrawn by the respondents Nos. 1 and

2. The rent for July, 1979, the counsel contended, was remitted by Money Order on 4‑8‑1979 vide Exh. `W and the rent for the months of July and August, 1979 was again remitted by the appellants on 9‑9‑1979 vide Exh. `W' appearing at pages 99 and 97 respectively of the lower Court record. (v) From the above facts it is clearly borne out that the appellants were not deliberate defaulters in payment of rent. (vi) The learned counsel then attempted to deal with the evidence of the remaining defence witnesses but I would not deal with them as I am clearly of the opinion that having failed to cross‑examine the witnesses of respondents Nos. 1 and 2 in respect of what was sought to be proved through these witnesses, their evidence has been left of no value.

11. Mr. K.B. Bhutto, learned counsel for respondents Nos. 1 and 2, on the other hand, made the following submissions:‑ (i) In her written statement the respondent No. 3, who is the tenant of the respondents Nos 1 and 2 has clearly admitted the fact mentioned in para. 1 of the ejectment application to the effect that she is the tenant of the respondents Nos. 1 and 2 in respect of the demised premises. (ii) In reply to para. 2 of the ejectment application wherein it was mentioned that the respondent No. 3 had failed and neglected to pay or tender tire rent of the demised premises since February, 1979, the respondent NoA has not denied it. On the contrary, she has admitted that she could not pay the rent to the respondents Nos. 1 and 2 as the appellants had failed to pay the same to her. In para. 2 of her written statement, the respondent No. 3 has admitted the fact of sub‑letting as pleaded by the respondents Nos. 1 and 2. (iii) Referring to para. 1 of the written statement filed by the appellants the counsel submitted that it is claimed therein that the joint tenancy was obtained for all the three ladies, namely, the appellants and the respondent No. 3 as joint tenants. It is then averred therein that the respondent No. 3 left the demised premises in 1968 and the appellants continued to live together as tenants therein and continued to pay the rent to the attorney of the respondents Nos. 1 and

2. They then claimed to have paid the rent tilk 3 une, 1979 when the partnership amongst the appellants and the respondent No. 3 in a Maternity Home was dissolved. (iv) That as per para. 5 of the written statement filed by the appellants the partnership in Maternity Home known as "Jamila Nighat Maternity Home" stood dissolved in June, 1979 and since the ejectment application was also filed in July, 1979, there was no question of acquiescence and waiver involved in this case. (v) That in para. 3 of their written statement the appellants have denied the act of sub‑letting and claimed themselves to be the tenants of the demised premises in their own rights. The counsel contended that there was difference between a joint tenancy in their own rights and a sub tenancy. They cannot approbate and reprobate about the same matter. (vi) That in para. 4 of their written statement a specific allegation has been made about the demand of pugree of Rs. 1,00,000 having been made by the respondents Nos. 2 and

3. E.W. Muhammad Naqi has during cross examination specifically denied that he ever went to collect rent from the appellants. On the contrary, the opponent used to pay rent to him at his shop. He has also denied to have been approached by the appellants and Mst. Jamila‑Nighat, respondent No. 3 for joint tenancy. The burden was thus upon the appellants to prove that actually the joint tenancy was accepted by the respondents Nos. 1 and 2 which they have failed to prove. (vii) He criticised the evidence of the other defence witnesses by stating that the appellants in their own deposition did not name any defence witness before whom the alleged pugree was demanded by the respondents Nos. 1 and

2. Similarly no question was put to the attorney of the respondents Nos. 1 and 2 during his cross‑examination regarding payment of the rent for the month of March, 1979. The receipt for March, 1979 appearing in the Receipt Ex. 5/A was, according to him, never issued to the appellants. (viii) That it was not possible for the appellants to have paid rent to the attorney of the respondents Nos. 1 and 2 after the dissolution of the partnership in June, 1979 as the ejectment application m question had been filed on 3rd July, 1979. (ix) That the. D.W. Mst. Aisha Bai has admitted in cross‑examination that Mst. Jamila Nighat had not personally paid the rent from 1968 to June, 1979 and that the man of the respondents Nos. 1 and 2 used to come to collect the rent from them. She has then deposed that she did not remember to whom the appellants had paid rent from February, to June, 1979. (x) Lastly, the burden to prove that the payment of rent had been made to the respondents Nos. 1 and 2 for the entire period was squarely on the appellants which they failed to discharge by producing the rent receipts which were being admittedly issued by the attorney of the respondents Nos. 1 and 2.

12. Having heard the arguments of the parties and upon careful examination of the evidence prevalent on record I am convinced that the contention of the appellants' counsel to the effect that the appellants are tenants of the demised premises eversince does not, in the first instance, appear to be without substance. Their residence in the demised premises right from the inception of the tenancy is proved by the deposition of Mst. Aisha Bar. Even if this aspect of the case is decided against the appellants, the alternative plea raised on their behalf, namely, that after the vacation of the demised premises by Mst. Jamila Nighat in the year 1968 when she was married and started living in another flat, they are in exclusive possession of the demised premises is borne out from the various documents prevalent on record, the authenticity whereof has not been doubted by the respondents Nos. 1 and

2. The first document to which a reference may be made is the birth certificate of a female child born on 30th July, 1969 to Mst. Jamila Nighat issued by Naveed Clinic, Karachi. The address of Mst. Jamila Nighat given therein is of Ismail Building, Aram Bagh, Karachi. Mst. Jamila Nighat has also herself admitted in her written statement to which reliance has been placed by the learned counsel for the respondents Nos. 1 and 2 as well to the effect that she vv as not living in the demised premises for some time past and that she had allowed the appellants Nos. 1 and 2 to continue to live therein. The respondents Nos. 1 and 2 thus acquiescenced to the residence of the appellants in the demised premises for a period of over 11 years. The plea of the respondents Nos. 1 and 2 that they did not know about the residence of the appellants in the demised premises for all these long years is unbelievable. However, as already stated, there is overwhelming evidence available on record to establish the residence of the appellants in the demised premises at least from 1968 if not earlier than that. The various authorities to which reference has been made by the learned counsel for the appellants in support of his contention that the right of the respondents Nos. 1 and 2 to seek eviction of the appellants is hit by the principle of acquiescence and waiver lend full support to his case. "

30. It is not disputed that the appellant did not take any action against the respondent in spite of the fact that by the Advocate's notice dated 21 1‑1965 he had required the appellant inter alia to remove his sub‑tenant. It is in evidence of Muhammad Hanif that he came to occupy a portion of the shop 9 or 10 years before he was examined as witness, in the year 1971 or 1972. There is no doubt that the Ordinance does not prescribe any period of limitation for eviction of tenant, but if the provision of section 13(2)(i)(a) of the Ordinance were violated, and if in spite of knowledge of violation the person sleeps over his right and/or does not enforce his right, and does not take advantage or benefit conferred on him by law within reasonable time, which always is the question of fact, then the principle of acquiescence or waiver comes into operation for to hold otherwise might cause not only great hardship but might result in irreparable loss to a tenant. Further, the principle of waiver or acquiescence would also be obliterated in such cases.

31. As regards the submission that there could be no waiver or acquiescence against the statute it may be stated that if law confers any right on advantage on a person exclusively for his own benefit and it does not affect the rights of another person and is not against the public policy, then such a right can be waived and any liability incurred by breach of such provisions may not be enforced and acquiesced." The other authorities are also to the same effect and I think the principles laid down in these authorities are squarely applicable to the facts of the instant case. Therefore, respectfully following the said judgments I would hold that having failed to take action against the appellants for their eviction for a period of over 11 years from the date of their coming into possession of the demised premises, C the right of the respondents Nos. 1 and 2 for their eviction is hit by the doctrine of waiver and acquiescence and their eviction from the demised premises cannot be ordered on this score.

13. In so tar as issue No. 2 regarding wilful default is concerned, there I find that the appellants have failed to prove the payment of rent for the months of February, 1979 till June, 1979. Even if the payment of rent for March, 1979 for the sake of arguments is accepted, then too there is no iota of evidence prevalent on record to hold that the rents for the months of April to June had been paid. It is an admitted fact that the respondents Nos. 1 and 2 had been issuing the rent receipts. It was, therefore, in the normal course of events expected that if the appellants had paid the rent to them as alleged by them then they should have produced the rent receipts which has not been done. The mere statement of the appellants to the effect that rent had been duly paid would not, in the circumstances of this case, absolve them of the responsibility to produce the rent receipts in support of their contention. In para. 12 of the affidavit‑in‑evidence of Mst. Aisha Bai, the appellant No. 2, it is averred that the rent has been duly paid to the attorney of the applicants through Mst. Jamila Nighat upto June, 1979" whereas during cross‑examination she has deposed "I have paid the rent in person from 1968 to June, 1979. Mst. Jamila Nighat has not personally paid the rent from 1968 to June 1979". She has then again stated in cross‑examination "I do not remember when we have paid the rent from February to June 1979". It is thus evident that the statements of the appellant No. 2 in this behalf are inconsistent and derogatory. The rent for the months of July and August was tendered through money order but there is, as already pointed out, no proof of the payment of the rent for .the months of February to June, 1979. The rent receipts (Exh..5/1) containing counter‑foils filed by the respondents Nos. 1 and 2 have been 'described by Mst. Aisha Bai in her affidavit‑in‑evidence as a forged document and hence the appellants could not, firstly, take benefit of counter‑foil available in the said receipt book. Even otherwise no question was put to the witness of the respondents Nos. 1 and 2 with regard to the availability of rent receipts for the payment of rent in the month of March, 1979". Be that as it may, the fact remains that even if it is assumed, as stated above, that the rent for March, 1979 had also been paid yet the default for the subsequent months is established on record.

14. For the above reasons I do not find any justification to interfere with the E findings of the learned trial Court in respect of issue No. 2 to the effect that "there is clear default in payment of .rent from February to June, 1979".

15. In the result, the appeal fails to the extent and in the manner stated above and, consequently, the impugned order is upheld in so far as it directs the appellants to hand over vacant possession of the premises to the respondents Nos. 1 and

2. I would, however, allow four months' time 2o the appellants to vacate and hand over the vacant possession of the demised premises to the respondents Nos. 1 and 2 from the date hereof, subject to their depositing the monthly rent regularly in Court as per tentative order of the learned Rent Controller, failing which, m either case, the appellants shall be liable to be evicted forthwith without notice. The parties are, however, left to bear their own costs. H.B.T./H-114/K Appeal dismissed.