P L D 1975 Lahore 1326 (PLP)

M. A. Bajwa for Respondent. Date of hearing : 24th June 1975. The point to be determined in this case is as to whether tender of the rent on 2‑4‑1968 to the respondent landlord would amount to waiver of forfeiture of the tenancy when the ejectment application was filed on 3‑4‑1968.

2. The facts of the case are that ejectment application was filed by the respondent against the appellant on the ground of default in the payment of rent from September 1967 onwards. The application was resisted and the only relevant issue, on the basis of the pleadings of the parties, was: as to whether the rent for the period was paid or tendered to the respondent in time or not. It was found by the learned Controller that since the rent was not paid within time, therefore, the appellant was liable to be ejected. The finding in this behalf has been affirmed by the learned lower appellate Court. The appellant has now come up in second appeal and has challenged the validity of the impugned orders passed against him.

3. So far as the order of the learned lower appellate Court is concerned, default for a period of six months has been found to have been proved against the appellant. It is also admitted therein that amount of Rs. 480 was sent by money order by the appellant on 2‑4‑1.968 to the respondent, which was received by him on 10‑4‑1968.

4. It his been vehemently argued that since the amount of arrears of rent Was tendered prior to the institution of the ejectment application and the same was later on accepted, therefore, there was no rent outstanding against the appellant and the ejectment application was liable to be dismissed on that ground. It has been argued with reference to the relevant provision as con tained in section 13(2)(1) of the West Pakistan Urban Rent Restriction Ordinance; that if the tenant has not paid or tendered rent due by him then he can be held to be liable for ejectment. On the contrary, the learned counsel for the respondent has argued that since the amount was not paid nor tendered within sixty days from the period for which it was payable, there fore, even if the amount so tendered was accepted it would not adversely affect the maintainability of the ejectment application. He in this regard has relied upon certain authorities to show that in case of proved default, the learned Controller under the said provision, is obliged to pass an order of ejectment against the tenant. The relevant provision as relied upon by both the learned counsel for the parties is as follows:‑ "13.‑(2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied that‑ (i) the tenant has not paid or tendered rent due by him in respect of the building or rented land, within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord, or in the absence of any such agreement, within sixty days from the period for which the rent is payable. . ."

5. Their Lordships of the Supreme Court in Samiullah v. Mian Muhammad Saleem, District Judge, Rawalpindi arid 2 others (1971 S C M R 725) have inter preted the said provision in the following manner: "It is thus evident that it is only when a tenant has not paid the rent and that rent is still outstanding against him that a landlord is entitled to maintain an application for eviction of his tenant under section 17(2)(1) of the (Cantonment Rent Restriction Act of 1963) Act" The facts of the case as referred to above are that the appellant Samiullah, before the Supreme Court, occupied a shop as a tenant under respondent No. 3, Haji Muhammad Yousaf. On 8‑7‑1962 the latter served a notice under section 106 of the Transfer of Property Act on the former terminating his tenancy with effect from 31‑7‑1462. Thereafter the landlord filed a suit, on 14‑9‑1962, in the civil Court for ejectment. While the suit was pending, the Cantonment Rent Restriction Act, 1963 was promulgated, which placed certain restrictions on the tenants in the Cantonment areas. In consequence thereof the suit was liable to fail and it was, therefore, permitted to be with drawn on 6‑6‑1963. On agreement between the parties the landlord was allowed, on the same date, to withdraw the arrears of rent which had been earlier deposited in the Court by the tenant. Thereafter the landlord made an application under section 17 of the said Act on 5‑8‑1963 for ejectment of the tenant inter alia on the ground of default in the payment of rent. The tenant was ejected by the Controller and the learned lower appellate Court found him guilty of non‑payment of rent and on that ground it upheld the order of his ejectment. The provision as contained in section 17(2)(1) is quite similar to that as contained in section 13(2)(1) of the Urban Rent Restriction Ordinance. In that case the amount deposited by the tenant was withdrawn with the leave of the Court by the landlord, though in the proceedings initiated against the tenant under the Transfer of Property Act. It is also correct that the amount of rent in that case had been received by the land lord prior to the institution of the ejectment application while in the present case the amount was remitted one day before the institution of the ejectment application, which was later on duly received by the landlord.

6. It has been argued on behalf of the appellant that since the amount of rent remitted one day before the institution of the ejectment application was accepted later on by the landlord, therefore, he waived his right to get the appellant ejected on account of default made by him for the relevant period. . I am afraid, this contention has no force in the eye of law as well as in the circumstances of the case. Much reliance has been placed upon the authority, of the Supreme Court, as referred to above, by the learned counsel for the appellant. In that case the ejectment proceedings were filed against the tenant under the Transfer of Property Act, which contained the relevant provision with regard to waiver of forfeiture of lease by the landlord. There is no such provision in the West Pakistan Urban Rent Restriction Ordinance, 1959.' The rent was deposited by the tenant in that case in the proceedings under the Transfer of Property Act and since the same was received with the leave of the Court as well as orb the basis of the consent of the parties before the institution of the ejectment application filed under the Cantonment Rent Restriction Ordinance, 1963, therefore, so far as the period of default in that case was concerned, the landlord waived his right of forfeiture of tenancy by receiving the amount of arrears of rent. If such amount had been received by the landlord during the proceedings initiated under the Cantonment Act of 1963, then the situation would have been different. Since the landlord had waived his right of forfeiture of lease in the above cited case, before the insti tution of the ejectment application, therefore, it was found by their Lordships of the Supreme Court that there being no amount outstanding as arrears of rent against the tenant in relation to the period of default, on the basis of which ejectment application was filed, the same was not competent. The contention that such waiver can be applied to every proceedings has no substance. Unless it is so provided in the relevant law, it cannot be availed of against the party concerned. Reliance in this respect can be placed upon Dr. M. Fazil Zahir and others v. Mst. Begum Jan and others (P L D 1966 Lah. 53) and Sheikh Muhammad Nawaz v. Muhammad Azeem and others (P L D 1961 Lah. 788). The latter case has been relied upon by the learned Judge in 1966 Lahore. It has been held in 1966 Lahore while relying upon 1961 Lahore, that on the reasoning adopted in this authority it would appear that the liability of a tenant for eviction in respect of buildings and tenancies governed by the Ordinance is to be regulated by the provisions of the Ordinance alone and the principles of the Transfer of Property Act are not to be imported. According to clause (i) of subsection (2) of section 13 of the Ordinance a tenant is liable to be evicted if the Controller after giving the tenant a reasonable opportunity of showing cause against the ejectment is satisfied that the tenant has not paid or tendered rent due from him in respect of building o r rented land within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement within sixty days from the period for which the rent is payable. It has further been found that the liability to ejectment arises on account of the commission of default in the payment of rent and there is no provision in section 13 of the Ordinance that such liability is waived if the landlord accepts rent for a period sub. sequent to that for which the default has taken place or on a date subsequent to the filing of his application for the tenant's eviction.

7. The above discussion would show that the provision as contained in clause (i) of subsection (2) of section 13 of the Ordinance provides a statutory forfeiture of tenancy on the part of the tenant if he fails to pay or tender rent due by him within the period as specified in that provision. It has been argued on behalf of the appellant that if the amount of rent is tendered before the institution of the ejectment application and the same is later on accepted then there will be no default with regard to the period subject matter of the ejectment proceedings. This contention has no force. Such interpretation of the relevant provision would defeat the very purpose of the same. It has been clearly provided in the said provision that rent has to be tendered or paid within the period specified therein and if it is not done in the like manner. then default will be committed by the tenant. In the present case though the amount of rent remitted by the appellant before the institution of the ejectment application was duly received by the landlord after the filing of the application, that did not render his application incompetent, as under the law he did not waive his right of getting the appellant ejected, who had already defaulted in the payment of rent even at the time when he remitted the arrears of rent.

8. The learned counsel for the appellant has also relied upon Abdul Bashir v. Muhammad Ra(iq Khan Sherwani (P L D 1974 Kar. 45) in order to show that in case of acceptance of arrears of rent by the landlord he waives forfeiture of lease. I am afraid the case relied upon does not help the appellant. In that case the tenant had paid to the landlord according to the latest assessment made by the Karachi Municipal Corporation and had already been sending rent at the said rate by money order, which was refused to be received by the landlord. The point involved in that case was: as to which of the assessed rental value was relevant. It was found by the High Court that the assessment which was made effective from 1st of July 1960 was the relevant assessment and the tenant was liable to pay rent accordingly and since he had paid rent according to the assessment and the landlord and not accepted the rent at the said rate, therefore, the tenant had not committed any default.

9. For the aforesaid reasons, there is no force in the appeal, which is hereby dismissed. The parties are, however, left to bear their own costs in the circumstances of the case. K. B, A. Appeal dismissed.