1984 PLP 1044 (CLC)

‑‑Ss. 13 & 15‑‑Default in payment of rent‑Rent tendered by tenant in lumpsum and same accepted by landlady without any protest, objection or reservation before filing ejectment application for same period‑Default committed by tenant, held, will be presumed to have been waived by landlady and ejectment could not be allowed on ground of default. P L D 1975 Lah. 1326 ; 1972 S C M R 262 and P L D 1976 Kar. 862, ref. Rent Case No. 685 of 1978 was filed on 21st November, 1978 by the respondent/landlady for the ejectment of the appellant/tenant from shop No. 817, Ward `C', Hyderabad, in which the appellant had been running his clinic as a doctor on account of the default in payment of rent In paras. 2 and 3 of the ejectment application it is mentioned that Yar Muhammad Soomro was the respondent's husband/attorney and the appellant was the tenant of the respondent in respect of shop in question at a monthly rent of Rs. 50 and he had been paying the rent to the respondent's husband personally every month. In para. 4 it is mentioned that the appellant had not tendered the rent to the respondent's husband from February, 1978 to September, 1978 despite his requests made on several occasions. Para. 5 of the ejectment application is reproduced herein-below :‑ "

5. That the opponent had sent the rent by money order on or about 4th October, 1978 for Rs. 386 only but the same does not absolve him from the question of default and the applicant has a right to seek ejectment of the opponent on this ground. Moreover the rent tende red by the opponent is short by Rs. 14 hence same is not a proper tender of rent to the applicant. The opponent is wilful defaulter in payment of rent and as such liable to be ejected from the premises." In the written statement filed by the appellant an objection about non -service of section 13‑A notice was pleaded. It was further pleaded that respondents husband Yar Muhammad Soomro was a Government servant and it was very difficult to contact him for the reason that he was posted at different places and the respondent being a pardanasheen lady had refused to accept the rent saying that her husband should be contacted. It was further pleaded that the rent had been paid through money order which had been accepted by the husband of the respondent and at the time the ejectment application was filed no rent was due. After recording evidence of the parties, the Rent Controller passed the impugned order dated 30th April, 1980 ordering ejectment of the appellant and accepting the ejectment application of the respondent. Being aggrieved, the present First Rent Appeal has been filed by the appellant/tenant. I have heard Mr. Shamsuddin Memon, learned counsel for the appellant, and Mr. Sulleman Kassim, learned counsel for the respondent.

2. It is an admitted position that an amount of Rs. 386 was sent through money order by the appellant to the respondent's husband /attorney which money order was accepted in the first week of October, 1978 without any protest, reservation or objection. On a question from the Court, Mr. Sulleman Kassim, on instructions of respondent's husband /attorney, inform ed that the money order was addressed to the respondent's husband at Nawabshah where it was accepted by him. It has also come in evidence that Rs. 14 had been deducted by the appellant on account of the money order charges and therefore if the money order for Rs. 386 was treated as a money order for Rs.

400. It amounted to payment of rent for 8 months and it would be for the period from February to September, 1978. As observed earlier, the ejectment application was filed on 21st November, 1978. If this acceptance of the money order for 8 months amounts to a waiver on the part of the respondent, there should be no default for which an ejectment application could have been competently filed on 21st November, 1978. Admittedly there is no written agreement of tenancy in existence at the relevant period. 60 days period provided in section 13 (ii) of the 1959 Rent Ordinance, therefore, is applicable and the period of 60 days had not expired in respect of the rent payable for the month of October, 1978. The only point that requires consideration in this appeal is whether the acceptance of the money order in the first week of October, 1978 by the respondent's husband/attorney amounts to a waiver on the part of the respondent which estopped the respondent from filing an ejectment application on the ground of default in the payment of rent for the period for which the rent had been paid and accepted on behalf of the respondent. It was contended by Mr. Shamsuddin Memon, learned counsel for the appellant, that this a case where the rent had been accepted without any objection and protest and after 11 months of the acceptance of the rent, the ejectment application on the ground of the default was filed for the same period for which the rent had already been accepted. According to learned counsel this was a clear case of waiver on the part of the respondent. On the other hand it was argued by Mr. Sulleman Kissam that a default had been committed by the appellant in the payment of rent which is apparent from the money order itself whereby 8 month's rent had been tendered and according to learned counsel a default once committed could not be washed out. Learned counsel relied upon P L D 1975 Lab. 1326, 1972 S C M R 262 and P L D 1976 Kar. 862.

3. As observed earlier. in this case it is an admitted position that the rent for the period from February to September, 1978 was sent through money order by the appellant to the respondent's husband/attorney a Nawabshah and the same was accepted without any protest, objection was reservation. It is also an admitted position that the respondent's husband attorney was a Government servant and he was posted at different station's outside Hyderabad also and at the relevant time when he 1rrented to a money order he was at Nawabshah. It also appears to be an admitted position that the rent was collected by or paid to the respondent's husband/attorney and not to the respondent personally. No notice had been given prior to the filing of the ejectment application that the appellant was committing default and was making delayed payment of rent. From the admitted facts it is apparent that the rent was accepted for the period in question by the respondent's husband/attorney without any protest or objection and at the time the ejectment application was filed no rent was due for more than 60 days as provided by section 13 (2) (i) of the 1959 Rent Ordinance. In my view, it is a clear case of waiver on the part of the respondent's husband /attorney. If rent was tendered in lump sum some objection or protest should have been made if the respondent's husband/ attorney had any grievance about the lumpsum payment. From the evidence it had not been established that any grievance had been made about late payment of rent prior to the filing of the ejectment application. If rent had been tendered in lump sum and the same had been accepted by the landlady before the filing of the ejectment application it will be presumed that for the period for which the rent had been accepted the default com mitted by the tenant has been waived by the landlord unless a foundation is laid in the case of the appellant that the rent had not been accepted with out any protest, objection or reservation. As already observed, in the instant case the rent was accepted without any reservation, objection or protest whatsoever before the filing of the ejectment case and in the circumstances of this case it will be presumed that the default had been waived by the respondent's husband/attorney and the ejectment could not have been allowed on the ground of the default in the payment of rent for the same period for which the rent had already been accepted. The three judgments cited by learned counsel are distinguishable and do not support the contention of the learned counsel in the facts of the instant case.

4. As a result, First Rent Appeal No. 414 of 1980 is allowed and the impugned order dated 30th April, 1980 of the Rent Controller ordering ejectment of the appellant in Rent Case No. 685 of 1978 is set aside. There will, however, be no order as to costs. M. Y. H. Appeal accepted.