2016 PLP 1 (YLRN)

ABDUL RASOOL MEMON, J.

This constitution petition calls in question the judgment dated 11.07.2007 passed by IVth Additional District Judge, Karachi East whereby appeal filed against order dated 23.12.2003 passed by learned VIIIth Senior Civil Judge and Rent Controller, Karachi allowing Rent Application No.702 of 1996 has been set aside and Rent Application has been dismissed.

2. Precisely setting the facts of the case are that the petitioner Muhammad Jamal filed a rent case under section 15 of Sindh Rented Premises Ordinance, 1979 against the respondent Manzoor Ahmed in respect of shop No.1 situated on plot No.15-A in Block-6, PECH Shahrah-e-Faisal popularly known as White House Plaza, originally owned by the parents of the petitioner namely, Yousuf and Ghulam Afroz; Father of the petitioner had let out shop No. 1 to father of respondent on 27-12-1981 at the rate of Rs.800/- per month. The father of the respondent expired on 17-04-1992 leaving behind four sons and seven daughters. It was further pleaded that after the death of Muhammad Yousuf the previous owner having 50 paisa share, his other legal heirs and Mst. Gul-e-Gulshan relinquished their share in favour of the petitioner through registered gift deed and the petitioner sent a Circular to all of the tenants on 19-04-1993, which was acknowledged by them including the present respondent regarding change of ownership. It was alleged that the respondent deposited the rent for the month of May, 1992 and June, 1992 on or about 19-07-1992 and thereby committed the default in payment of rent for two months. It was further alleged that though as per agreement, the rent was Rs.800/- per month but instead of that the respondent deposited Rs.600/- from the beginning. The petitioner after acquiring ownership wanted to reconstruct the building and after obtaining permission to dismantle the said plaza, he negotiated with all tenants to vacate the shops and offices in their possession out of them 45 tenants vacated the shops and remaining tenants demanded huge amount for vacating the shops and offices, therefore, the petitioner filed the instant ejectment application against the respondent on the ground of default and reconstruction of the building.

3. The respondent No.1 contested the matter and filed written statement wherein a plea was raised that shop in question was obtained on paying Rs.500,000/- as Pagree' and monthly rent was fixed at Rs.600/- per month and not Rs.800/; It was further claimed that petitioner s sister Mst. Shahnaz Khatoon, she was also sharer in the property demanded rent and since then rent was being deposited in M.R.C. No.507 of 1992. He also denied to have been served with circular of change of ownership.

4. With regard to reconstruction of building, it was pleaded that demolition permission obtained from KBCA was cancelled on 6.3.1996.

5. Parties filed their affidavits in evidence and produced relevant documents relied upon by them. They were cross-examined. However, they did not produce their witnesses for cross-examination on their affidavit in evidence.

6. From the pleadings of the parties, following points for determination were framed in the case:

(1) Whether the applicant is entitled for vacating the case property on the ground of reconstruction? (2) Whether the opponent is willful defaulter of the monthly rent? (3) What should the order be?

7. The learned trial Court decided point No.1 in negative and point No.2 in affirmative and allowed the ejectment application vide order dated 23-12-2003, with direction to the respondent to vacate the premises within 60 days.

8. The said order was assailed in First Rent Appeal No.23/2004, which was allowed through impugned order dated 11.7.2007 passed by the learned 4th Additional District Judge Karachi East. The conclusion para of the judgment is reproduced hereunder:-- "

10. The rent receipts, which have been produced on record, also suggest that from the beginning of the tenancy the receipt of Rs.600/- was being issued by the respondent's father. The principle of waiver and acquiescence is therefore applied with full force in the above case as the consent of the land lord right from the beginning of tenancy is led to believe that either the rent was actually agreed between the parties as Rs.600/- and Rs.800/- wrongly crept in the agreement that the landlord had forgone his right to claim, by his continuous and incessant practice that on the payment of Rs.600/- he felt agreed despite of knowing all the facts, further it was not mere silence on the part of the landlord but by issuing the receipts of Rs.600/- reflects the clear and decisive act of the landlord as `waiver by conduct'. I therefore can not subscribe the findings of the learned rent controller on this point in question, therefore, its judgment is set-aside and appeal is allowed, which renders the rent application dismissed."

9. Learned counsel for the petitioner contended that as per agreement dated 27.12.1981 executed between the predecessor of land lord and tenant in para No.3 the rate of rent was specifically mentioned at Rs.800/- per month; that said agreement is admitted by the respondent in his cross-examination and in the written document and being admitted fact needs not to be proved; that the presumption of truth is also attached to the agreement which is written document and its violation by the tenant does not give rise to take a plea of waiver at appellate stage. He further submitted that plea of waiver is a mixed question of law and fact though was not raised before the trial Court, but the appellate Court considered it, which is contrary to law; that mere silence to claim as enforcement of right would not amount its waiver; In support of his contentions, he has placed reliance on the cases of 'Messrs Hilal Trading Company through Managing Director v. Swami Narain Temple Estate Trust Building and 2 others' (2013 CLC 1727), Lal Khan through Legal Heirs v. Muhammad Yousaf through Legal Heirs' (PLD 2011 Supreme Court 657), Arshad Khan v. Mrs. Fauzia Nasir and 2 others' (2005 CLC 787), Fasih Hashmi v. Muhammad Rafiq' (1990 CLC 1218) and Syed Hamid Hussain v. Mst. Humaira Ghias' (1986 CLC 1873).

10. Conversely, the learned counsel for the respondent argued that there is not mere silence on the part of petitioner but his father received rent paid by the respondent at the rate of Rs.600/- per month and never objected thereof, therefore, this is not mere silence on the part of land lord but by issuing receipts of Rs.600/- is clear and decisive act on his part as waiver by conduct, as such, the judgment of the appellate Court is in accordance with law and the petition is liable to be dismissed. He has relied upon the cases of `Najamuddin v. Zamir Ahmed' (PLD 1982 Karachi 188), Yaqoob Ali v. Ismail' (1987 CLC 526), Maiul Haq and others v. Land Acquisition Collector, Swabi' (2004 MLD 324), Mst. Anwari Begum through Attorney v. Mst. Asghari Khanum and 7 others' (2009 MLD 1279), AIR 1992 Supreme Court 184, AIR 1966 Allahabad 214 and also referred Articles 113 and 114 of Qanun-e-Shahadat, 1984.

11. I have considered the arguments of both the learned counsel and have gone through the case record so also law cited by them.

12. It is an admitted fact on record that the relationship is not disputed between the parties. However, ejectment of respondent is sought on the grounds of default in payment of monthly rent and reconstruction of building of demised premises. It is also an admitted fact that on the ground of reconstruction the plea of the petitioner was not accepted by the learned Rent Controller vide his judgment dated 23-12-2003 in Rent Case No.702/1996 and the said finding of the Rent Controller was not agitated by the petitioner by filing Rent Appeal or objection to appeal filed by the respondent, therefore, the said findings of the Rent Controller has attained finality.

13. So far the findings of learned appellate Court as to the application of principle of waiver and acquiescence in the case is concerned, it is an admitted fact on record that plea of waiver was neither raised in the written objections/written statement filed by the respondent before the Rent Controller nor in the grounds of appeal but the appellate Court on its own introduced this plea in utter violation of settled principle that unless such plea is specifically raised before the lower Court and parties are given opportunity to lead evidence in rebuttal of such plea, it can not be allowed to be raised for the first time in appeal. In this respect, I am fortified by a judgment in the case of 'Danish Iqbal v. Syed Zaheerul Hassan' (1986 CLC 981).

14. Admittedly there is an agreement of rent executed on 27.12.1981 by the predecessors in interest of the parties and the said document is not disputed by the respondent; not only this but he in his cross-examination has stated in clear terms that he was depositing Rs.600/- of rent in M.R.C. No. 507/1992. Relevant part of his statement is reproduced hereunder:- "It is correct that I was depositing rent at Rs.600/- instead of Rs.800/- per month."

15. It is settled principle of law that mere silence to claim or enforce a right for some time does not amount to waiver of right. Reliance is placed on the case of Mst. Bilqis Sultana v. Settlement Commissioner, Lahore and 2 others (PLD 1975 Lahore 185.)

16. In view of the above circumstances, I am of the opinion that the execution of agreement i.e. 27-12-1981 is admitted and in para No.3 of the said agreement it is clearly mentioned that rate of rent was Rs.800/- per month and the respondent admitted in written statement so also in his affidavit in evidence that he was/is paying the rent at Rs.600/- per month and even in M.R.C. it was being deposited at Rs.600/-, therefore, the non-payment of rent as per terms of rent agreement amounts to wilful default and thus the finding of the Rent Controller dated 23.12.2003 in Rent Application on the point of default is in accordance with law and the findings of learned appellate Court in this regard are not sustainable in law, which requires interference of this Court in exercise of writ jurisdiction. With profound respect, the citations relied upon by learned counsel for the respondent are not relevant to the facts and circumstances of his case.

17. In view of the above, I allow this petition and set aside the impugned judgment dated 11.07.2007 passed by learned IVth Additional District Judge Karachi East and upheld the judgment of the trial Court dated 23.12.2003. RR/M-22/Sindh Petition allowed.