1986 PLP 249 (MLD)

Syed Nazir Kazmi for Appellant. Aftab Kazilbash for Respondents. Date of hearing: 9th December, 1985. This appeal is directed against the order of eviction passed by Vth Senior Civil Judge and Rent Controller, Karachi on 20‑12‑1982.

2. The only ground on which the ejectment was ordered, was that the appellant had failed to pay rent between 1‑4‑1979 to 31‑7‑1979. The application for ejectment had been made on 20‑1‑1982 and it 'lad been alleged that the appellant wanted to transfer the shop to someone else since April, 1979. It was further alleged that 33 months' rent from November, 1978 to March, 1979 was due from the appellant. It was also alleged in the application that the shop has been closed since April, 1979. In the written statement, the appellant took up the position that rent has been deposited in Court in Miscellaneous Rent Application No.4690/79 on refusal to accept rent by money‑order twice. In the written statement it was admitted that the shop was lying closed because the electric connection was unlawfully disconnected and loss was caused to the appellant because the appellant had the business of electric decoration and supply of amplifiers and loudspeakers. It was denied that the appellant wanted to transfer the shop to someone else.

3. The issue of default in payment of rent was framed.

4. Syed Israr Hussain filed his affidavit on behalf of the respondent and stated that since April, 1979 the rent was in arrears and that money‑order sent by the appellant in August, 1979 was refused as the rent has been sent after committing default. He denied in cross-examination that he wanted to give the shop on 'Pugri' to some one else. He stated that the ejectment case had not been filed before 1982 as the husband of the appellant was not here. He denied the suggestion that the rent was allowed to be accumulated as he wanted to create ground of ejectment. The appellant's husband Mushtaq had stated that the respondent wanted to give the shop on Pugri and further stated that they have avoided to accept `the rent on one pretext or the other and that he remitted rent by money‑order on 2‑8‑1979. He further stated that respondent disconnected the electric supply and, therefore, shop was closed down. In cross‑examination he admitted that rent was not paid from April, 1979, and that no action was taken to pay the rent. He stated that money‑order was also sent in September, 1979: He admitted that previously he used to pay the rent of the shop from month to month and that he had gone abroad in 1976 and returned on 28‑8‑1979 He also admitted that disputed shop was lying locked from 1976 to 1979 except for intermediate openings‑ His Sala used to work in the shop in his absence also. D.W. Abbas Haider had stated that in his absence nobody from the appellant's side had come for seeking transfer of shop to someone else. In cross‑examination, he stated that electricity of the shop was disconnected on 2‑8‑1979.

5. The Rent Controller ordered the ejectment on the ground that rent of April, 1979 to July, 1979 had not been paid in time.

6. Mr. Nazir Kazmi, Advocate has argued on behalf of the appellant and stated that the tenancy was quite old one and that the money‑order was sent because the respondent had refused to accept the rent when it was tendered. The learned counsel has admitted that there was non‑payment of rent during the period from April, 1979, to July, 1979 therefore, the delay in payment of rent should be condoned and that in any case discretion should be exercised in favour of the tenant particularly when no action was taken by the respondent between July, 1979 till 20‑1‑1982. He also said that the rent was agreed to be paid, periodically. I do not find 'any justification for this submission that rent was to tie paid periodically and not from month to month because the appellant's husband has clearly stated that he used to payment It from month to month, previously and, therefore, mere payment of 4 months' rent in April, 1979 in lump sum will not make it a practice of payment in lump sum for several months. I do not find any evidence t the effect that there was any tender of rent orally by anyone on behalf of the appellant. No such position has been taken in the written statement that rent tendered orally by the appellant was refused by the respondent. Even in the two money‑order coupons sent by the appellant on 2‑8‑1979 and 18‑9‑1979, there is no mention that the rent had been tendered by the appellant but had been refused by the respondent. It is relevant to mention that these two money‑orders were sent when the husband of the appellant had returned to Pakistan and, therefore, the appellant could not say that she being a lady did not know the implications of the tender of rent.

7. Moreover, the allegations made by the appellant's husband in para. 4 of his affidavit of evidence that the respondent had tried to avoid to accept the rent which was tendered for 3 times by the opponent through him or through any member of the mission does not appear to be correct. In the first instance, no one has been examined on behalf of the appellant to show that anyone had tendered the rent and the statement made by Syed Khursheed Akbar alias Mushtaq Haider that he had tendered the rent thrice is evidently incorrect in view of his admission in cross‑examination that he was out of Pakistan from 1976 to 28th July, 1979 and, therefore, it is obvious that he could not have tendered the rent till 28‑7‑1979 nor he could be a witness to any such tender.

8. It is, therefore, apparent to me that there is no satisfactory proof of any tender of rent for April and May, 1979 and it was only sent by money‑order on 2‑8‑1979 by which date it was already very late. The rent of April, 1979 could have bean paid by 29th of June, 1979 and rent of May could have been paid' by 30th July, 1979 the non‑payment of rent could have resulted in the eviction of the tenant.

9. I have to consider whether the discretion could be exercised in favour of the tenant for not evicting him. The one reason could be that the 'respondent had waited for more than 2 years before bringing the eviction application and, therefore, they should be deemed to have waived their right. Counsel relied upon P L D 1983 Kar. 489 where in respect of an application for eviction filed after two years it was held by a learned Judge of this Court that default is waived. However, this was a case of default committed in respect of deposit of rent as directed by the Rent Controller and, therefore, cited case is not applicable to the present case where ordinary arrears have been proved. In respect of waiver there must be a conscious application of mind that the right which is available to a litigant is being waived. In the present case, there is no such conscious application of mind by the respondent, therefore, the question of waiver does not arise in this case. Since the arrears involved are of more than two months, therefore, ordinarily the discretion should not be exercised in such a matter. The discretion can, however, be exercised in favour of a tenant when the tender of rent had been proved but no such tender has been proved within the stipulated time of 60 days. Moreover, the fact that the shop has remained closed from 1976 till 1979 and even during the pendency of the case shows beyond doubt that the appellant hardly needs the premises in dispute otherwise he should have seen to it that electric connection can be easily got restored from the Office of the Rent Controller. But no such efforts was made by the appellant and, therefore, exercise of discretion against the landlord in favour of a tenant, who has shown the least interest in running business from 1976 till date, is really not justified. The shop should not have been allowed to be closed from 1976 till today, and this alone could `have been a ground for eviction of the tenant. However, it is certainly a good ground for refusing the discretion. I, therefore, dismiss this appeal. Since the shop is already lying closed, therefore, their is hardly any justification to grant any, time for vacating the premises but I would still allow two months' time to the appellant to vacate the shop provided the rent is deposited in time. M. Y. H Appeal dismissed.