' The premises in dispute consisting of a shop and godown on the ground floor and a residential accommodation on the first floor were transferred by the Settlement Department to the respondent and a P. T.
0. Dated 31-5-62 was issued in her name. Subsequently the P. T. D. Has also been issued to the respondent.
2. The appellant being the occupant in possession of the godown on the ground floor of the aforesaid premises was served with a notice of transfer on 13-7-63 in the first instance and subsequently by a fresh notice dated 5-5-66 by registered post as required under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958.
3. On 7-3-68 the respondent filed application under section 13 of the Rent Restriction Ordinance, 1959 (hereinafter referred to as the Ordinance) for ejectment of the appellant on the dual grounds of non-payment of rent and damage caused to the premises. As to the non-payment of rem. The case of the respondent was that the appellant had committed default in the payment of rent with effect from 1-1-63 until the date of the application for ejectment. The appellant contested the ejectment application and his plea in the written statement was that the respondent had demanded Rs, 15 per month as rent for the premises in the first notice served upon him, in reply to which by his letter dated 29-7-63 he had offered Rs, 8 per month as the rent of the premises proportionately on the basis of the latest Municipal assessment for the entire building at Rs,
32. He further pleaded that the respondent made no response to his offer of rent and remained quiet until 14-7-65, when the respondent alleged that the appellant had made alteration in the premises. It was then that the appellant remitted by Money Order dated 27-7-65 all the arrears of rent for 38 months from 1-6-62 to 31-7-65 at the rate of Rs, 8 per month which was received by the respondent. Subsequently, the appellant remitted by Money Order at the same rate the monthly rent up to April, 1966, which was also received by the respondent. However, a fresh notice was received by the appellant dated 5-5-66 in which the respondent admitted that the proportionate rent of the disputed premises according to the municipal assessment was Rs, 8 per month and it was requested that the arrears be paid accordingly as well as alleged damage caused to the building be repaired. The appellant repudiated the allegation of damage by his reply letter dated 18-5-66 in which he reiterated his assertion that he had been paying the rent regularly at the aforesaid rate of Rs, 8 per month for which he holds Money Order receipts up to the month of April, 1966. According to the appellant the respondent continued to receive rent remitted by the appellant through Money Order up to the month of November, 1966, but thereafter he refused to accept the same, although the appellant has been regularly remitting the rent by Money Order each month.
4. The learned Rent Controller rejected the ground of damage to the premises but found in favour of the respondent and ordered ejectment of the appellant by his order dated 30-6-71 on the other ground holding that the appellant was guilty of default in the payment of rent from July, 1963 to July, 1965. The. Appeal filed by the appellant against the aforesaid order of ejectment was also dismissed by the learned Additional District Judge and Appellate Authority, Sukkur by his judgment dated 10-11-73. The appellant has now come up in second appeal to challenge the order of eviction passed against him.
5. It was first contended on behalf of the appellant that the Controller had no jurisdiction to entertain the application for ejectment as on the date of the application the appellant was not in fact in arrears of rent. It was pointed out that admittedly for the period for which the two Courts below held the appellant as a defaulter the arrears of rent were tendered in August, 1965, and accepted long before the institution of proceedings. Notwithstanding the default in the payment of rent during the aforesaid period, therefore, the appellant was not in arrears on the date of the application for eviction. My attention was invited to subsection (2)(i) of section 13 of the Ordinance in support of the submission which may be reproduced as under:- "(2) A landlord who seeks to evict his tenant shall apply to the Controller, for a direction in that behalf. If the Controller, after giving tenant a reasonable opportunity of showing cause against the application, is satisfied that-
(i) the tenant has not paid or tendered rent due by him in respect of the building or rented land, within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord, or in the absence of any such agreement, within sixty days from the period for which the rent is payable;
(ii) the Controller may make an order directing the tenant to put the landlord in possession of the building or rented land and if the Controller is not so satisfied, he shall make an order rejecting the application."
' The argument was that the important words in the aforesaid provision are "the tenant has not paid or tendered rent due by him" which clearly import that the tenant must have remained in arrears until the commencement of the proceedings to give the Controller jurisdiction to order his eviction. In other words, according to the learned counsel, if the tenant subsequent to having committed default in payment of the rents in the past tenders rent and the same is accepted by the landlord, the effect of the default is wiped out and he is no longer exposed to the liability of being ejected on that ground. Learned counsel invited my attention to the interpretation of other clauses of section 13 which employ the same language, in two judgments reported as Motibai Boman Irani v. Abbasbhoy Moosaji (11, and Adamali Hasan All v. Rubab. Bai (2). In the first case Abdul Hafeez Memon, J. Agreed with the view of the Additional District Judge that under section 13, subsection (2)(ii)(a) it is not sufficient for the landlord to prove that the tenant had sublet the premises once upon a time as such a transaction in the past cannot form the basis of ejectment.
According to this view the act of subletting must continue until the commencement of ejectment proceedings as the word 'has' used in the above provision connotes the continuous existence of subletting. Similarly, in the second case cited by the counsel, Qadeeruddin Ahmed, J. Held while interpreting subsection (3)(i)(b) that this provision takes into consideration the premises which were in the occupation of the landlord at the time of making the application. Without going into the two interpretations of the other clauses of section 13 it may at once be stated that the situation contemplated in the two provisions construed in the aforesaid two cited judgments is entirely different from the one contemplated in subsection (2)(i) of section 13 which is relevant for the present purposes. In the provision under examination the Legislature clearly provided that in case it is found that the tenant has failed to pay or tender rent "within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord, or in the absence of any such agreement, within sixty days from the period for which the rent is payable", he is exposed to the (1) PLD 1978 Kar. 851 (2)PLD 1965 Kar. 408 liability of being ejected by the Controller. The foregoing words of the subsection put into inverted commas clearly negate the interpretation put forward by the learned counsel. If the intention of the Legislature was to confine the ground of non-payment of rent for ejectment only to cases where the tenant continues to remain in arrears, nothing prevented it from employing such clear language. Reading the subsection in its entire context, therefore, I am of the opinion that once the tenant has committed default by not paying or tendering rent within the prescribed period he would be liable to be ejected notwithstanding subsequent payment of the arrears of rent unless he can make out a case of waiver on the part of the landlord. I, therefore, find no force in the submission of the counsel.
6. It was next urged by the learned counsel for the appellant that on the date of the application for ejectment on 8-3-68 the respondent was entitled to claim arrears of rent only for a period of 3 years prior to the date of the application, for, it is well established that the word 'due' refers to the rent due in law and recoverable in an action at law vide PLD 1968 SC 230. It was, therefore, contended that the ejectment cannot be sought on the basis of arrears of rent for a period falling beyond the limit of three years from the date of institution of proceedings. There can be no quarrel with the proposition of law submitted but it is not material for the present purposes. As already noticed the, ejectment application was made on 8-3-68 and could, therefore, cover a period of three years extending backwards up to 8-3-65. The ejectment of the appellant was ordered for non-payment of rent for the period between July, 1963 to July, 1965. Admittedly the appellant paid the arrears of rent on 4-8-65, therefore, from 8-3-65 to 4-8-65 is the period of default for which the rent was due and recoverable by process of law on 8-3-68. There is, therefore, no substance in this contention as well.
7. It was lastly contended on behalf of the appellant that in any case the admitted facts of this case clearly make out a case of waiver on the part of the respondent in accepting the accumulated arrears of rent for 38 months in August, 1965, and in accepting the rent thereafter for more than a year. Reliance was placed on Masood Hussain v. Muhammad Saeed Khan (1), in which the tenant committed default by not depositing monthly rent of one month in terms of the order passed under section 13(6) of the Ordinance. The landlord failed to take objection for nearly one year. It was held that the provisions contained in clause (6) of section 13 deal with private rights intended to mean for the benefit of the landlord only and, therefore, on the general principles their application may be waived by him. However, it was contended on behalf of the respondent that after termination of tenancy by notice to quit acceptance of rent will not constitute waiver. In this behalf reliance was placed on several reported judgments. However, it is necessary only to refer to M. Fazil Zahir v. Begum Jan (2), in which Anwarul Hag, J. (as his Lordship then was) examined the question of waiver by the landlord's acceptance of rent subsequent to default at some length. It was held that the liability to ejectment arises on account of the commission of default in the payment of rent, and there is no provision in section 13 of the Ordinance that such liability is waived if the landlord accepts rent for a period subsequent to that for which default has taken place, or at a date subsequent to the filing of his application for the tenant's eviction. It may at once be pointed out that there is an essential distinction between the facts of the reported case and the case in hand, inasmuch as, his Lordship was dealing (1) PLD 1965 Lah. 11 (2) PLD 1966 Lah. 53 with the case where waiver was claimed on the basis of acceptance of rent "for a period subsequent to that for which default had taken place", where as in the present case rent arrears were accepted by the landlord for the period for which default had been committed and on the basis of which ejectment was being sought. It may further be pointed out that his Lordship noticed the case of Masood Hussain earlier referred to and distinguished it, but did not disagree with the dictum laid down therein. Learned counsel also invited may attention to Ismail v. Muhammad Siddik (1), Subhan Ali v.
Satdai (2) and Muhammad Shafi v. Abdur Rahim (3). But after carefully examining these cases I find that none of these judgments has displaced the dictum laid down in the case of Masood Hussain. All that is laid down is that mere acceptance of rent by a landlord after the tenant commits default in the due payment of rent does not wipe out his liability to be ejected. None of the cases cited at the bar is an authority for the wide proposition canvassed by the learned counsel that the defence of waiver of rights on the part of the landlord by accepting rent subsequent to default is completely ruled out. On the contrary in the case of Ismail v. Muhammad Siddik it was laid down that something more than mere payment and acceptance of rent must be established to prove waiver on the part of the landlord. The question that arises for consideration in the present case is whether there exist on the record circumstances showing the conduct of the respondent to the effect that she intended to waive her right of ejectment for the default committed by the appellant for the two years period between July, 1963 and July, 1965. In this behalf the important fact which cannot be ignored is that the respondent kept quiet until July, 1965, after receiving reply to her first notice under section 30, in July, 1963, whereby her demand of rent at the rate of Rs, 15, was repudiated by the appellant and rent at the rate of Rs, 8 per month was offered. The respondent served a fresh notice on 14-7-65 after which the appellant paid all the arrears of rent at Rs, 8, which were admittedly accepted by the respondent. It has been established that even thereafter until November, 1966, the respondent continued to accept rent remitted by Money Order.
Applying the rule of limitation whereby only three years' rent prior to the date of action for recovery can be claimed it seems that the respondent allowed her right to eject the appellant on the basis of arrears for the period prior to 8-3-65 to lapse by passage of time This is a factor which reflects upon her intention and cannot be ignored. Finally the respondent waited for the long period of about 3 years to commence proceedings for ejectment after the period of default. Accordingly this is not a case of mere acceptance of rent but the aforesaid circumstances clearly show the conduct on the part of the respondent leading to the inference that she had knowingly relinquished her right to eject the appellant. The term 'waiver' implies the intentional relinquishment of a known right after knowledge of the facts. It implies the intentional forbearance to enforce right and necessarily, therefore, assumes the existence of an opportunity for choice between the relinquishment and the enforcement of the right. When the respondent accepted the rent in August, 1965, if she had any intention to enforce her right of ejectment she would not have accepted further rent for another period of fifteen months without resorting to ejectment proceedings in the meantime. No explanation was given why the action for ejectment was not taken during this time I have therefore, come to the conclusion (1) PLD 1961 Kar. 111 (2) PLD 1964 Kar. 206 (3) PLD 1967 Pesh. 223 that it has been established on the evidence on record that the respondent had waived her right to eject the appellant and, therefore, she was not entitled to the relief claimed.
8. In view of the foregoing discussion, the appeal is allowed and the order of eviction is here by set aside. There will, however, be no order as to costs.