P L D 1976 Karachi 817 (PLP)

Jaliluddin v. Azizuadin P L D 1963 Lah. 436 ref. Masood Hussain v. Muhammad Said Khan P L D 1965 Lah. 11 dissented from, Fazalbhoy for Appellants. M. Ziauddin Qureshi for Respondent. Date of hearing : 23rd February 1976. This is second appeal under the West Pakistan Urban Rent Restriction Ordinance, 1959, hereinafter referred to as the Ordinance against an order of ejectment passed on failure of the appellant to comply, within the directed time, with the order to deposit the arrears of rent. The respondent-landlord had brought an application for ejectment against the appellant on 3-3-72, claiming that he needed the premises for his personal bona fide use and that the tenant-appellants were in default of payment of rent for the previous five years. On 3-1-73 the learned Rent Controller passed the following order under section 13 (6) of the Ordinance : "Counsel for parties present. Quantum of rent is not disputed but the period is disputed. The counsel for opponent says that Rs. 3,727 is only due but the counsel for applicant says that the rent is due from 1-1-1966 to December 1972 amounting to Rs. 6,

770. But the applicant is only entitled to the rent for three years prior to filing of case. Therefore the opponent is directed to deposit the rent at Rs. 80 p.m. from 10-3-1969 to 31-12-72 amounting to Rs. 3,680 in the Court tentatively before the 15th February, 1973 and also to deposit tentative rent for current and future months before 15th of each calendar month. The rent for January 1973 will be deposited before 15th February 1973 and so on. Put off to 22-2-73 for issues." As against the directions contained in this order the opponent-appellant deposited the arrears of rent together with the rents for the months of January and February 1973 on 24-2-73. According to the order he was directed to deposit the arrears of rent before the 15th February 1973 and to deposit the future rent before the 15th of every month. 14 months passed by and the landlord did not take any action against the default committed by the tenant in this regard. Future rent was however being deposited before the due date. On 2-4-74 an application was moved claiming that default had been committed of the order under section 13 (6) of the Ordinance and, therefore, defence of tenant-appellant should be struck off and the landlord be put in possession. In reply to this application it was asserted by the appellants that the default was not wilful inasmuch as the first appellant Mr. S. M. Hamid Ali was a Professor in Jamia Millia, Malir and was busy, during the month of February 1973, in organising a conference, and that in that state of mind he completely forgot about the date before which the arrears of rent bad to be deposited. The second appellant S. M. Asif Ali was away to Mecca on pilgrimage and the third appellant Mst. Rais Jehan being a pardanashin lady could not comply with the order. The second ground taken is that the lapse of 14 months amounts to waiver and, therefore, it should be held that the penal action for such a default would not lie. So far as the first point is concerned there is a mere statement made in the application in rejoinder, to the application under section 13 (6) of the Ordinance filed by the respondent-landlord. There is no sworn affidavit to substantiate the contentions raised therein. But in any case negligence has never been found to be a ground for condonotion of the default. A person who is negligent or is absent minded is always to suffer for his such traits. If any authority is needed we may quote the case of Abdul Majid v. Saadullah and others (P L D 1963 Quetta 16). As regards the second point the learned counsel for the appellant relies upon Jaliluddin v. Azizuddin (P L D 1963 Lah. 436) in order to put forward the proposition that the principle of waiver is not foreign to proceedings under the Ordinance. The second authority relied upon him is that of Masood Hussain v. Mohammad 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 Bachi Bai s case there was a persistent and continuous default in the deposit of tentative rent till the application was made and in the case before me there is only one initial default at the time of the 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 Menkwa Kabushahli (AI 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 o any period prescribed for filing an application for the striking off the defence B 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 Bachi Bai's case. In addition there is another factor which strengthens the case of the landlord in the present proceedings. The landlord is a blind old man. The fact of default came to his knowledge through his counsel only in January 1974 when an application was moved on his behalf for the withdrawal of rent deposited till then. The application for striking off the defence of the tenant-appellant was moved on 2-4-74. This shows that the delay in moving the Rent Controller for action under section 13 (6) of the Ordinance was not that of 14 months as asserted by the learned counsel but only of 3 months. In a case where there is no knowledge of default the question of waiver would not arise in spite of the delay because in order to waive a right it is essential to show that the party waiving such right has by 'words or conduct made to the other party a promise or assurance'. In the absence of knowledge of default the question of promise or assurance to the other party would no arise. In view of this discussion I would hold that the order of the learned Rent Controller to strike off the defence of the appellant-tenant and to direct putting the landlord in possession of the promises in dispute was a valid and legal order and does not require any interference. I would, therefore, dismiss the appeal with costs and direct the tenant/appellant to place the landlord in possession within a period of two months from today. S. Q. Appeal dismissed.