1990 PLP 1324 (CLC)

By this common judgment I propose to dispose of F.RA. No.599/84 and F.RA. No.600/84. The two appeals have arisen in the following circumstances. The appellant in the two appeals is the landlord and owner of a building constructed on Plot No. 579, Block No. 17, Federal `B' Area, Karachi wherein the two respondents are tenants in respect of two shops at a monthly rent of Rs. 150 each. There was an agreement between the appellant and each of the respondents which was valid for a period of eleven months which expired on 30‑11‑1980. Thereafter, the respondents were asked by the appellant to vacate their respective shops but they refused to vacate the same. They also tendered rent for the months of December, 1980 and January, 1981 by money orders but the same was refused by the appellant as the tenancy of the respondents had been terminated. Besides that the respondents had also made additions and alterations to the demised premises without permission of the appellant. Consequently the appellant filed separate eviction applications against the two respondents, under clauses (i) and (vi) of section 15 (2) of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as "the Ordinance"). The respondents filed their respective written statements denying the aforesaid allegations. According to them although the tenancy agreements had expired after elevent months but the agreements were renewable. It was however, admitted that the rent tendered by the respondent, through separate money orders had been refused by the appellant but the reason according to the respondents was that the latter wanted enhanced rent for the premises. The respondents also denied to have made any additions or alterations to the demised premises as according to them they had only put a temporary shade for protection against sunlight which could always be removed. From the evidence recorded by tine learned Controller it was further established that the respondents were in occupation of the demised shops since 1972 for which they had executed different tenancy agreements from time to time with the appellant. It was also established that the appellant had received a depose of Rs.360 from each of the respondents which was still lying with him. Beside: that an attempt was also made by the respondents to establish that the appellant had accepted rent from them for the months of Nov. 1980 to May 1981, although admittedly no receipts had beer, issued by him. A money order receipt was also produced by the appellant which was placed on record by the learned Controller as Exh. 6‑C. However this according to the appellant, was a clear deviation from their earlier stand in the written statement that rent had been tendered by them to the appellant after the expiry of the tenancy agreement but the same was refused by him. On the basis of such evidence the learned Controller concluded that the statement of the respondents that rent was paid to the appellant from November. 1980 to May, 1981 had sufficient force. The reason for drawing such conclusion according to the learned Controller was that had the respondents not paid rent to the appellant, the latter would have filed an ejectment application on the ground of default. Consequently conclusion was reached by the learned Controller that the respondents had paid rent to the appellant as alleged by them. The learned Controller further concluded that the tenancy continued and the respondent were not liable to be ejected from the demised premises. I have heard Mr. Zafar Hadi Shah, learned counsel for the appellant and Mr. Nooruddin Ramzan learned counsel for the respondents in the two appeals. Clause (i) of section 15 (2) of the Ordinance, as it stood before its omission therefrom in 1984 by Sindh Ordinance No. IV of 1984 provided as follows: "

15. Application to Controller.‑‑(1) Where a landlord seeks to evict the tenant otherwise than in accordance with section 14, he shall make such application to the Controller. (2) The Controller shall, make an order directing the tenant to put the landlord in possession of the premises within such period as may be specified in the order, if he is satisfied that: (i) the tenancy has ceased to be valid under section 6"section 6 of the Ordinance which was also omitted by the same Ordinance provided: "

6. Tenure of tenancy.‑‑No tenancy shall, at a time, be valid beyond such period as the landlord and tenant have, by mutual agreement, fixed before or after the commencing of the tenancy: Provided that nothing in this section shall affect any tenancy existing immediately before coming into force of this Ordinance." A perusal of the above provisions would therefore indicate that tenancies which existed immediately before coming into force of the Ordinance were not affected either by clause (i) of section 15 (2) of the Ordinance or section 6 thereof. However, since in the present case, admittedly, the tenancy agreements existing between the appellant and the respondents at the time of coming into force of the Ordinance had expired and new tenancy agreement had been executed between the parties commencing from Ist January, 1980, therefore, according to Mr. Zafar Hadi Shah, the present case, did not fall within the purview of the proviso to section 6 of the Ordinance. Consequently according to the learned counsel since the tenancy agreement commencing from 1‑1‑1980 was valid only for eleven months and the same had admittedly expired on 30‑11‑1980 and after that no fresh agreement had been executed between the appellant and the respondents, the latter had become liable for ejectment under clause (i) of section 15 (2) of the Ordinance. The contention of Mr. Nooruddin Ramzan, learned counsel for the respondents, on the other hand, was that tenancy in fact commenced from 1972 and as the same was renewed from time to time, it still existed in view of the protection enjoyed by it under the proviso to section 6 of the Ordinance (as it then stood). It was further argued by Mr. Nooruddin Ramzan that in any case since the appellant did not file an eviction application immediately after the expiry of the agreement but waited for thirteen months before filing the same he had clearly waived his right to eject the respondents under clause (i) of section 15 (2). The learned counsel also draw support from the fact that the deposit of Rs. 360 which was lying with the appellant had not been returned by the latter to the respondents which according to him further established that the tenancy had not been terminated. From the admitted facts, it has doubtlessly been established that respondents had been originally inducted into the demised shops in 1972. However, admittedly a number of tenancy agreements were executed by the parties thereafter from time to time. Tenancy is created by an agreement between the parties and its duration or termination depends either upon the intention of the parties (which can be gathered from the terms of the agreement) or the law for the time being in force governing such tenancies. Although as pointed out above there were several agreements executed between the parties but since the same are not on record, nothing can be said about the terms agreed therein. However, the last agreement commencing from 1‑1‑1980 which is on record clearly indicates that a fresh tenancy had been created ‑ by the parties since the parties themselves decided to terminate the previously existing tenancy after expiry of the earlier tenancy agreement. Consequently a new tenancy came into existence after execution of the fresh agreements between the appellant and the respondents. Since these agreements came into existence after commencement of the Ordinance, they were clearly not protected under the proviso to section 6 of the Ordinance. For the same reason, the respondents were liable to be ejected from the demised shops under section 15 (2) (i), therefore, the argument of Mr. Nooruddin Ramzan that tenancy continued since 1972 hardly appears to be tenable in view of the circumstances just stated. The argument is therefore, repelled. Turning to the next argument, it has been contended by Mr. Noor uddin Ramzan that not only the appellant had waived his right to invoke clause (i) of section 15 (2) of the Ordinance but the fact that he had accepted rent from the respondents after expiry of the respective tenancy agreements on 30‑11‑1980 had given existence to fresh agreements. Waiver means forbearance by a party to assert its right/According to A I R 1965 SC 1405, it is an agreement to release or not to assert a right. In the case of Muhammad Saleh v. Muhammad Shafi (1982 S C M R 33) it was held that in order to establish waiver by conduct it must be shown firstly that the person entitled to the right had knowledge of the breach thereof and consequently, that he had acquiesced or failed to act, not withstanding that knowledge. It was further held that mere inaction or allowing an opportunity to pass‑by does not necessarily amount to waiver as omissian to enforce one's legal right strictly cannot give rise to an inference that the right has been abandoned. In Mst. Bachi Bai v. Ghulam Abbas (P L D 1972 Kar. 278), it was held that "a litigant's conduct might amount to waiver when it is coupled with an estoppel but it cannot be said that a landlord's delay in asserting his remedies under section 13 (6) of the West Pakistan Urban Rent Restriction Ordinance, 1959 can possibly create an estoppel or amount to election which is but another form of estoppel. It was further held in that case that if no period of limitation for fil'mg a particular application by a party has been prescribed under the law the delay by the party in filing an application would not be inconsistent with the continuance of his right. In Shaukat Ali v. Sakhawat Hussain (1984 C L C 34), it was held that to prove waiver there should be some clear and decisive act or conduct beyond mere silence. The consensus of these authorities therefore, clearly is that in order to constitute waiver there must be an intentional relinquishment or abandonment of an existing legal right. I may further add that such abandonment of right must also be responsible for inducing the defendant to alter his position to his disadvantage or bringing about a situation when it would be inequitable to give the plaintiff the relief sought by him as was held in A I R 1965 S C 1405. The facts, of the present case indicate that the appellant after expiry of the tenancy agreement on 30‑11‑1980 not only refused to enter into a fresh agreement with the respondents but he even failed to accept rent from the respondents in respect of the demised shops. Although an attempt was made by the respondents to create evidence that rent had been paid to the appellant after the expiry of the tenancy agreement but such evidence was not only unworthy of any credit but the same could not be permitted since the same was diagonally opposed to the respondents' case and outside their pleadings. Although no doubt, there was a delay in filing of the ejectment application since admittedly thirteen months had elapsed between expiry of the validity of the tenancy agreement and filing of an eviction application by the appellant before the learned Controller but this by itself cannot constitute waiver, firstly because no period of limitation was prescribed for initiating proceedings against the tenants more so when the cause of action was a continuous one. Besides that an inference also could not be drawn from the conduct of the landlord that he had relinquished his right to proceed against the tenants for their ejectment from the demised premises. The very tact that no fresh agreement was executed by the applicant after expiry of the tenancy agreement after 30‑11‑1980 and no rent was accepted from the respondents thereafter by the appellant fails to indicate that the appellant had by his conduct waived his right to proceed against the respondents. The next argument of Mr. Nooruddin Ramzan that since the security deposit lying with the appellant had not been returned to the respondents, the same constituted waiver also does not appear to be tenable because all the circumstances are to be taken into consideration while determining the question of waiver. Since the appellant had refused to execute a fresh tenancy agreement with the respondents or to accept rent from them the mere fact that security deposit had not been returned to the respondents could in no case indicate that the appellant had abandoned his right to file ejectment applications against the respondents. Since the law as it then stood gave the landlord a clear right to eject his tenant after the tenancy had ceased to be valid under section 6 of the Sindh Rented Premises Ordinance, the learned Controller under the circumstances appears to have erroneously exercised his discretion in favour of the tenants. I have therefore no option but to reverse the findings of the learned Rent Controller on the point. The other ground raised by the appellant in his eviction applications before the Rent Controller in regard to additions and alterations has not been pressed by Mr. Zafar Hadi Shah, therefore, any discussion on the point would be futile. The upshot of this entire discussion is that these appeals are allowed and the two orders passed by the learned Controller in the two cases before him are set aside and the respondents are directed to put the appellant in possession of the two shops within three months from passing of this judgment. There will, however, b6 no order as to costs. AA./M‑1080/K Appeals allowed.