1982 PLP 2284 (CLC)

Rent Case No. 119/78 was filed by the respondent/landlord against the appellant' tenant before the Rent Controller on 3rd January, 1978 on the ground of default in the payment of rent from February, 1976 to November, 1977, for damaging and altering the premises and for nuisance. The Rent Application was dismissed by the order dated 12th May, 1979 of the Rent Controller. The‑ respondent filed an appeal being First Appeal No. 355/79 against the said order of the Rent Controller dismissing the Rent Application and, by his order dated 13th September, 1979, the learned V Additional District Judge, allowed the First Rent Appeal on the ground of default in the payment of rent from October, 1976 to November, 1977 and ordered ejectment of the appellant. In these circumstances the appellant/tenant has filed this Second Appeal.

2. I have heard Mr. S. M. A. Mahmood, learned counsel for the appellant and Mr. Rasheedudin Ahmed Khan, learned counsel for the respondent. It is contended by Mr. S. M. A. Mahmood that there were two periods in respect of which the case of the respondent/landlord can be bifurcated as far as the default in the payment of rent is concerned. According to learned counsel, the first period is from February, 1976, to September, 1976, and the second period is from October, 1976 to November, 1977. As far as the first period is concerned, according to learned counsel, the matter was settled through the arbitration of the brother of the respondent/landlord and as the water had been disconnect ed to the premises in question on account of non‑payment of taxes by the respondent/landlord, the amount paid at the rate of Rs. 180 per month to the water man were deducted by the arbitrator and the balance amount was accepted by the respondent/ landlord as payment of rent upto September, 1976. The First Appellate Authority has decided this point in favour of the appellant that as far as the default upto September, 1976 is concerned there is a waiver on the part of the respondent. There is no cross‑appeal or cross‑objection on behalf of the respondent and, therefore, I do not see any justification for disturbing this finding of the learned First Appellate Authority.

3. As regards the other period namely, from October, 1976 to Nov ember. 1977, the submission of learned counsel for the appellant has been that in respect of this period admittedly a Distress Warrant Appli cation was filed by the respondent being D. W. Application No. 383/77 before the Small Causes Court, Karachi and by order dated 18th December, 1977, the following order was passed by the Judge of Small Causes Court, Karachi :‑ "Heard parties advocates. By consent opponent agrees to deposit Rs. 1.200 within 15 days and remaining amount in 3 equal monthly instalments of Rs. 400, first instalment to be paid on or before 5th February, 1978. In case of failure D. W. to issue." On the basis of the D. W. proceedings having been filed and the aforesaid order dated 18th December, 1977 of the Judge Small Causes Court, it was contended by learned counsel for the appellant that the respondent had waived the default, if any, on the part of the appellant. I find no force in this contention. The fact that the landlord is forced to file D. W. proceedings and recover the rent through such proceedings does not automatically amount to waiver on the part of the landlord of his right to take action against the tenant in respect of the default that has bean committed. 1 (De fault is committed in terms of the provisions of the Rent Ordinance and this default is not automatically waived by filing of the D. W. proceedings or by recovery of rent through such pro ceedings. I am, therefore, of the view that by filing of the aforesaid D. W. proceedings and on account of the aforesaid order. dated 18th December, 1977, of the Judge of the Small Causes Court, Karachi, the default committed by the appellant bad not been waived by respondent

4. It was then contended by learned counsel for the appellant that as previously through arbitration the amount payable to the waterman was adjusted, in the second period of default also the appellant was entitled to adjustment. If water was disconnected, the appellant had a separate remedy open to him and that is to approach the Rent Control ler. However, it may be observed that in the instant case, the stand, taken by the respondent ,'landlord was that on account of non‑payment of rent by the appellant, the respondent could not make payment of the taxes, which resulted in the disconnection of water supply. In my view a previous settlement relating to an earlier period where a certain amount was waived by the respondent did not mean that in future also the respondent would be deemed to have accepted that out of the rent payable the amount, if any, paid to the waterman will be liable to be deducted. As observed earlier, if water had been disconnected and for which the responsibility was on the respondent, adequate provisions were available' in the Rent Ordinance for obtaining relief by the tenant.

5. In my view the First Appellate Authority has taken a correct view of the matter and has come to the right conclusion that there was default in the payment of rent on the part of the appellant for the period from October, 1976, and as such the Rent Application was to be allowed. I see no reason or justification to interfere in the order dated 13th September, 1979, passed by the V Additional District Judge, Karachi, in the Rent Appeal No. 355/1979.

6. In the circumstances, the present Second Appeal No. 390 of 1979 is dismissed but with no order as to costs. The appellant, however, is granted time till 31st March, 1982 to vacate the premises. M. Y., H. Appeal dismissed,