1986 PLP 1778 (CLC)

He managed the said property, received the rent etc. and issued receipts thereof. The respondent to a suggestion in cross‑examination replied that "according to the terms of agreement the opponent had to come to my office and tender rent every month. My times are invariably fixed from 3 to 6 or 7 p. m. in the office and I would always be available during this time." In rebuttal Murtaza Khan attorney of the appellant filed affidavit -in‑evidence and stated therein that it is a fact that the appellant always paid rent at intervals when the landlord /respondent came to collect the rent as the landlord/ respondent had not advised the appellant as to way the rent was to be paid to him. The counsel of the respondent produced letter Exh. 6‑A through this witness. The attorney of respondent to a question in cross‑examination replied "I do not know if opponent had agreed through any letter to pay rent in advance at the Office of applicant". The attorney to another suggestion replied that "it is fact that rent had not been paid since July, 1978. Voluntarily states that rent could not be paid as none came from applicant's side to collect the rent." The appellant filed affidavit‑in‑evidence and stated there in that "I gave no letter in writing to the respondent that I will pay rent regularly monthly as alleged. I reiterate that the rent was collected periodically by the applicant /landlord and in this regard I produce herewith photostat copies of receipts issued between 5‑11‑1974 and 18‑9‑1978 which are attached hereto and marked 1 to x, that immediately the Rent Case No. 263/79 aforesaid in February, 1979 was filed. I sent money orders for the rent *of July, 1978 and February, 1979 which the applicant had not collected, and upon refusal thereof by the applicant I filed Miscellaneous Rent Application No. R.C. 1194/79 in which I deposited not only the rent between July, 1978 to February, 1979 but also all rents since March, 1979 till to date". The appellant to a suggestion in cross‑examination replied that "I am in custody of the originals of all the photo copies produced alongwith the affidavits. It is fact that on some original rent receipts the terms of tenancy are mentioned. I can produce all the originals". The appellant produced the following receipts:‑ S. No. Date. Receipt for Number of Exhibit months. month's.

(1) 1‑7‑1974 July 1974 1 19 (2) 5‑11‑1974 August, September, October . 3 18 (3) 2‑8‑1975 Ist November, 1974 to 30th June, 1975 8 17 (4) 17‑4‑1976. Ist July to 29th, February, 1976 8 16 (5) 12‑5‑1976 March 1976 1 15 (6) 1‑3‑1977 Ist July 1975 to 30‑4‑1977 10 14 (7) 9‑6‑1977 May and June, 1977 2 13 (8) 2‑12‑1977 July to November 1977 4 12 (9) March 1977 to February, 1978 4 11 (10) 18‑9‑1978 March, April, May and June, 1978 4 10 The exhibits 15 and 19 relate to rent for one month only. The exhibit 13 relates to rent for two months. The exhibit 18 relates to rent for three months. The exhibits 10, 11 and 12 relate for four months. Th.e exhibits 16 and 17 relate for eight months. The exhibit 14 relates for ten months. The applicant, who has been occupying upper floor of Bungalow No. 77, Garden East since July, 1974 has produced evidence that he was ready and willing to fulfil his obligation to pay rent but was prevented from so doing by such circumstances as would have prevented a reasonable man from discharging his obligations. While no doubt, the observations of the Hon'ble Supreme Court are entitled to highest respect, in my opinion that do not apply to the present case. In the circumstances of this case I feel that the appellant has discharged the burden of proof in respect of his assertion in the written statement. Mr. Qutubuddin Ahmed the learned counsel for the respondent has contended that printed receipts issued by the respondent clearly show that there are terms and conditions printed on the back of receipts which include the condition that rent is payable every month by the 15th of every month. Payment of rent every month by 15th is, therefore, part of agreement, which is binding on the appellant. On the other hand Mr. Naimur Rehman the learned counsel for the appellant has denied that printed terms and conditions are part of the agreement binding on the appellant. He had submitted that the appellant denied contents of para. 2 of the eviction application in his written statement and stated therein that the rent was collected after lapse of six to eight months. I am of the view that conditions appear to be unilateral because the original tenancy agreement between the parties was oral. The terms and conditions printed on the back of the receipts are generally signed by the landlord and not by the tenant. In these circumstances it cannot be said that the tenant accept the terms‑and conditions printed on the back of the receipts. There is nothing on record to suggest that the appellant had agreed to abide by such conditions. From the evidence it appears that the respondent used to collect the rent in lump sum from the appellant. It also appears from exhibit 12 that the respondent collected rent for the months of July to November, 1977 on 2‑12‑1977 and rent for the months of March, April, May and June was collected on 18‑9‑1978. In these circumstances it has come on record that the respondent himself did not abide by the terms and conditions on the back of the receipts. It seems that not a single question was put to the appellant about payment of rent by 15th of each month. In the instant case the respondent himself accepted the rent in lump sum. If a landlord himself does not stick to the terms and conditions printed on the back of the receipts, then the tenant cannot be blamed for the same. It is argued that the respondent waived the condition No.

6. Any payment of rent in breach of section 15(2) is liable for eviction. Assuming that the respondent can waive the requirement as to payment of rent before 15th of each month. It is shown that the respondent waived it. A waiver is an intentional relinquishment of a known right. There can be no waiver unless the person against whom the waiver is claimed had full knowledge of his rights and of facts enabling him to be effectual action for the enforcement of such right. The conduct of the appellant all along as such was not strictly obliged to remit the monthly rent by money order or he was not strictly obliged to deposit the monthly rent after seeking necessary permission from the Controller. I hold that in the circumstances of the case the appellant had not committed any wilful default and is not liable to be evicted and the Rent Controller has not exercised his discretion judicially and properly. I consider that this is a good ground for exercising the discretion in favour of the appellant/ tenant. As such I exercise discretion in his favour. Mr. Naimur Rehman learned counsel for the appellant contends that the appellant filed, Miscellaneous Rent Case No. 1194 of 1979 in the Court of IIIrd Rent Controller, Karachi and deposited the entire outstanding rent in Court in mid March, 1979, where it is being deposited ever since. The application was filed subsequently, that is, on 1‑4‑1979 that the appellant had not committed any default. I am of the view that this deposit will not exonerate the default committed by him in terms of section 13(2)(i) of the Rent Ordinance. (See 1972 S C M R 262). For the foregoing reasons the order of the Rent Controller is set aside and the eviction application is dismissed but in the peculiar circumstances of the case the parties will bear their own costs. H.B.T. Appeal accepted.