Waiver

One of the grounds on which relief can be refused by Court exercising writ jurisdiction is when the petitioner is guilty of delay and laches

Petitioner, when invokes extraordinary remedy under Art. 199 of the Constitution, then he should come to the Court at the earliest possible opportunity

Inordinate delay in making the motion for a writ is indeed an adequate ground for refusing to exercise discretion in favour of the petitioner, thus, when the petitioner is guilty of laches or undue delay in approaching the High Court, the principle of laches or undue delay disentitles the petitioner from discretionary relief under Article 199 of the Constitution from the High Court, particularly, when there is no plausible explanation on the petitioner's part for his blame-worthy conduct of approaching the High Court with undue delay

Court cannot come to the rescue of persons, who are not vigilant regarding their rights, however, it is unjust to give the petitioner a remedy where, by his conduct, he has done that which may fairly be regarded as equivalent to "waiver".

To prove a waiver of right by conduct there should be some clear and decisive act or conduct and it must be shown that the person entitled to the right had knowledge of its breach and that he had acquiesced or failed to enforce the same notwithstanding such knowledge.

Intentional relinquishment of a known right or voluntary relinquishment or abandonment of a known existing legal right constitutes waiver.

Waiver of one party did not estop another party from raising legal objections and the same did not get foreclosed merely because of having been waived in another set of proceedings, or even at the same stage in the proceedings.

Compromise was arrived at between accused and legal heirs of the deceased, whereby legal heirs of the deceased had waived their right of Qisas without accepting any Diyat or compensation, and prayed that accused be acquitted of the charge

Genuineness of compromise arrived at between the parties was duly verified by the Sessions Judge

Out of nine legal heirs of the deceased two were minors

Mother of said minors appeared before the court and recorded her statement on their behalf, with the assertion that she had waived the right of Qisas on behalf of the minors being their mother and natural guardian, and that she had forgone the Diyat

Validity

In view of S.309, P.P.C., there could be no waiver of right of Qisas to the extent of minors, only right available would be compounding of right of Qisas, which could be exercised by 'Wali' of minor on their behalf

Such right was further protected by the Proviso contained in subsection (2) of S.309, P.P.C.; there must be an acceptance of "Badal-e-Sulh" and value of the same would not be less than the value of Diyat

Waiver of right of Qisas by mother of the minors on their behalf without accepting any compensation, was neither legal nor just

Condition provided in S.310, P.P.C. of "Badal-e-Sulh", was to be observed being a legal requirement and without determination of value of "Badal-e-Sulh", the right of Qisas could not be allowed to be compounded

Settlement arrived at between the parties only would amount to waiver or compounding of right of Qisas, and order of acquittal was not its ultimate result

Discretion lay with the court to make an order of acquittal or conviction of the offender, keeping in view the facts and circumstances of the case and nature of the offence

Accused was acquitted of the charge under S.302(b), P.P.C.; he would remain in custody until he paid the amount of 'Badal-e-Sulh' determined as Rs.32,00,000 as per requirement of S.311, P.P.C.

Said amount would be deposited in the National Savings in the names of minors in equal shares until they attained majority.

Such plea for being mixed question of fact and law could not be allowed to be raised in appeal and constitutional petition, unless same was specifically raised before Trial Court and parties were given opportunity to lead evidence in support and rebuttal thereof

Principles.

Principles.

Such plea for being mixed question of fact and law, if not raised before lower court, could not be raised for the first time in appeal

Principles.

Waiver could consist either of positive act or relinquishment or a conduct such as would warrant an inference of relinquishment of right.

"Waiver" meant that when a person, by conduct, had the intention to waive a right, or when a person had a choice between relinquishment and enforcement of a right, and did not claim it, and opted for lapsing of a right, expressly by declaration or by a conduct, the same amounted to a waiver.

Waiver would be an intentional relinquishment of a known right.

Defendant's pleas were that plaintiff had knowledge about suit sale; that he was asked to purchase suit land, but he showed his unwillingness to purchased same, thus, plaintiff had waived his right of pre-emption

Validity

Waiver would be an intentional relinquishment of a known right

In order to constitute a valid waiver of right of pre-emption, offer should be to the effect that vendor wished to sell suit land; vendee or other person was ready to pay fixed price and if pre-emptor wished to exercise right of pre-emption, he could purchase same at same price

Waiver could not be inferred from circumstances based upon surmises and conjectures

Offer in general terms by vendee or vendor of his intention to sell land to a stranger would not constitute a waiver of such right

Right of pre-emption neither would stand waived nor could be deemed to have been waived by oral statement of defendant about plaintiff having knowledge of suit sale or offer/refusal to purchase suit land in absence of proof of active participation of plaintiff in finalization of suit land

Nothing was available on record to show that on whose behalf offer of purchase was made to plaintiff; that at how much price vendor was selling suit land and how much price was offered by plaintiff

Defendant had failed to prove waiver of such right

Suit was decreed in circumstances.

Court has to scan the evidence; oral, documentary or circumstantial, as the case may be, to decide whether a party has waived his right by an overt or covert act.

Suit was resisted on three grounds; i.e. that plaintiff had not fulfilled the essential requirements of the Talb; that suit was time-barred; and that plaintiff had waived his right of pre-emption

Sale-deed in respect of suit property was registered on 28-12-2004 while Talb-e-Khusumat was made on 25-4-2005

Suit, in circumstances was within the prescribed period of limitation and was not barred as claimed by the defendant

Defendant had claimed that suit property was offered to the plaintiff, but he refused to purchase the same and in that respect plaintiff had waived his right of pre-emption

Defendant had to prove the notice as envisaged under S.12 of North-West Frontier Province Pre-emption Act, 1987, which he had failed to do so

Defendant thus could not rely upon the general defence of "waiver"

Plaintiff had fulfilled the essential requirements of Talbs as prescribed under S.13 of North-West Frontier Province Pre-emption Act, 1987, Appellate Court had rightly decreed the suit

Order of Appellate Court could not be interfered with by High Court, in circumstances as same was not arbitrary, capricious or outrightly absurd.

Trial Court dismissed suit of the plaintiff mainly on the grounds of non-performance of Talbs in accordance with law, having no superior right of contiguity and waiver of pre-emption right

Appellate Court upheld the judgment and decree of the Trial Court on the ground that Talb-e-Muwathibat could not be made legally through an agent

Performance of Talb-e-Muwathibat was a pure question of fact which in the case was not only alleged in the plaint, but the plaintiff had examined sufficient evidence in that behalf

Under S.14 of North-West Frontier Province Pre-emption Act, 1987, where a person was unable to make demands under S.13 of the Act, his guardian or agent could make the required demands on his behalf

Record had shown that plaintiff was aged 100 years who had appointed his son as his special attorney

Intention of the plaintiff was clear and unambiguous to authorize his agent to do all requisite acts for performance of demands of pre-emption as he was unable to perform those acts being an aged person

Demand in the case, in circumstances, was legal and Appellate Court was not justified to dismiss suit on that ground

Regarding superior right of pre-emption of the plaintiff, it was evident from Shajra Khistiwar that suit property consisted of two Khasra Numbers whereas one Khasra number was `Ghair Mumkin Rasta' which was adjacent to the property of vender, vendee and the plaintiff/pre-emptor

Plaintiff, in circumstances, had proved contiguity with the suit property through evidence

As the right of pre-emption would accrue after the completion of sale, same was not lost because before the completion of sale, property was offered to the pre-emptor and he refused to buy

Findings recorded by Trial Court on all those grounds were devoid of any force as same were based on misreading of evidence

Appellate Court below was also not justified in law by holding that Talb-e-Muwathibat could not be made legally through agent

Concurrent judgments and decrees of both the courts below were set aside and suit for pre-emption was decreed in favour of the plaintiff and against the defendants.

Waiver is an intentional relinquishment of one's known right and unless there is cogent evidence reflecting the person's conduct clearly indicative of the abandonment of his right he cannot be said to have deliberately forgone his right.

Defendants had produced a letter issued by Additional Settlement Commissioner confirming that the disputed property had been permanently transferred in the name of defendant's predecessor-in-interest which was not challenged by plaintiff before any forum

Plaintiff had acquiesced into the existence of such title document which she could not subsequently deny, particularly at belated stage after filing the suit

Silence of plaintiff for a considerable period, regarding her interest in the disputed property would amount to waiver on her part

No exception could be taken to the judgment delivered by Single Judge which was well reasoned and was in accordance with the provisions of law

Intra court appeal was dismissed.

Failure of a person entitled to pre-empt to outbid purchaser would not amount to waiver.

Statutory provision enacted in public interest relating to form of contract between company and public bodies created by or under a statute

Validity

Compliance with such provision could not be waived.

No waiver against law.

Defined.

Meaning and effect.

Connotation elaborated. The dictionary meaning of the word "waiver" is "to abandon, relinquish, desert, to relinquish (a right, claim or contention) either by express declaration or by some intentional act which by law is equivalent to this". "Waiver" is, inter alia, described to mean "forsaking the assertion of a right act at the proper time"; "an intentional relinquishment of a right a man is entitled to"; "an intentional relinquishment of a known right"; "it may consist either of a positive act of relinquishment or of conduct such as would warrant an inference of relinquishment of the right". Thus the word "waiver" means to forego, to waive a claim or right, or not to put forward the same.

Waiver was a conscious and deliberate relinquishment of one's right.

Finding of trial Court endorsed by Appellate Court that mere presence of pre-emptor did not constitute waiver was not correct

By clear conduct on the part of pre-emptor, it was proved on record that he was not interested in the purchase of suit property

Pre-emptor having definite knowledge of sale had actually acquiesced in it by taking active participation in completion of sale in favour of vendee

Right of pre-emption would not be available to preemptor, who through his conduct had waived such right

Concurrent findings of fact were based on misreading of evidence and misinterpretation of law of waiver and estoppel, thus, were liable to be set aside in exercise of revisional jurisdiction under S.115, C.P.C

Defined and explained.

Essential ingredients of doctrine of waiver were that person relinquishing or abandoning his rights and privileges was fully aware and cognizant of his rights and privileges and had neglected or ignored to enforce knowingly and consciously by some decisive act or conduct.

Qanun-eShahadat (10 of 1984), Art. 114.

Waiver Waiver cannot be projected as an excuse to deprive citizens of their rights under the Constitution.

To establish conduct by waiver it must be shown that person entitled to a right had knowledge of breach thereof and that he had acquiesced or failed to act notwithstanding

Mere failure to take action due to ignorance of breach of his right, cannot be said to give right to any waiver by conduct.

Waiver Once litigant had opted to avail a particular remedy, other remedies would be deemed to have been waived.

No evidence was produced to prove that plaintiff had ever evinced such an intent and conduct and was, therefore, estopped to assert his right

Plea of waiver and collusion was not proved in circumstances

Qanun-e-Shahadat (10 of 1984), Art. 118.

Proposition relating to waiver being a mixed question of facts and law has to be settled in the light of facts of each case as such no absolute rule could be laid down

Each case has to be decided in the light of its own facts and not by virtue of a precedent as, ordinarily, like human conduct and nature, facts of each case might also differ.

Waiver is a conscious abandonment of a known right; which would consist either of a positive act of relinquishment or of conduct such as would warrant an inference of relinquishment of the right.

What constitutes waiver.

Waiver is intentional relinquishment/abandonment of a right by owner of such right, which has to be proved by cogent, unequivocal and unimpeachable evidence

Waiver is not to be readily inferred or implied; it has to be established by express evidence.

Transfer of Property Act (IV of 1882), S. 116.

Plaintiffs were not capable of doing such conscious act due to their minority.

Waiver Waiver being a mixed question of law and fact is to be raised specifically.

Waiver is an intentional relinquishment of known right and unless there is cogent evidence reflecting the person's conduct clearly indicative of abandonment of his right he cannot be said to have deliberately foregone his such right.

Estoppel is the foundation of waiver and mere omission to assert a right does not constitute waiver.

Waiver being a question of fact has to be decided on proof of such fact by the evidence in each case

Relinquishment of right is not to be inferred readily and there should be evidence to induce the Court to hold that the party intentionally wanted to forego his right.

Fact that plaintiff having agreed to purchase land then showed his inability to arrange for funds and thereafter introduced vendees/defendants as purchasers in his stead constituted waiver.

There could be no waiver unless person against whom .waiver was claimed had full knowledge of his rights and of facts enabling him to take effectual action for enforcement of such rights.

Waiver Factum of waiver could be proved by oral evidence.

Waiver is a mixed question of fact and law.

Burden to prove question of waiver being on defendants, they failed to discharges such onus due to closing of evidence on their side by Trial Court

Finding of such issue must have been recorded in favour of plaintiff on failure of defendants to discharge the burden of proof of same

Mere presence of plaintiff was, however, not sufficient to give rise to the inference that he had waived his right of pre-emption

Lower Appellate Court was thus fully justified in reversing finding of Trial Court on issue pertaining to waiver.

[Waiver].

Waiver Legal objection would not get foreclosed merely because of having been waived in another set of proceedings or even at some stage in the same proceedings, there being no estoppel against law.

Mere failure to rile eviction application could not be deemed to be waiver by conduct.

Waiver Pre-emptor's conduct showed that he was not only present when the sale price was settled and earnest money was paid but he also accompanied the vendor and the vendee to Revenue Officer for the attestation of mutation

Pre-emptor ­such conduct evinced that he was not at all interested in the purchase. of the property but had waived his right of pre-emption

Waiver of right of pre­emption could result either from express relinquishment or from conduct from which such relinquishment of right could be inferred.