1. ' KHILJI ARIF HUSSAIN, J.----Civil Miscellaneous Application No,219-K of 2011 was listed for hearing and with the consent of the parties we have heard the appeal along with C.M.A. No,219-K of 2011.
2. This appeal with the leave of the Court is directed against the judgment passed by the learned Single Judge in Chamber of the High Court of Sindh, Karachi, Circuit Court at Hyderabad, whereby the learned Single Judge set 'aside the concurrent findings and facts recorded by the learned Rent Controller and Appellate Court and directed the appellant to vacate the premises in question within four months from the date of the order.
3. ' Brief facts to decide the appeal are that the respondent filed ejectment application under - section 15 of the Sindh Rented Premises Ordinance, 1979, alleging that he is the co-owner of the premises in question being the shop No,8, situated in Shams Market, Station Road, Hyderabad ("said Shop") and the appellant is tenant in respect of the said Shop. The respondent being the co- sharer was entitled for 'half of the rent to be paid by the appellant, whereas other half was to be paid to coowner/landlord respondent No,2 Kamil Ahmed. Respondent No,1 Dr. Ishtiaq Hussain filed ejectment application alleging therein that the appellant did not pay the respondent's share of rent from October, 1995 to January, 1996 and from January, 1996 to December, 2002. After filing written statement, framing the issues and recording the evidence, learned Rent Controller vide his order dated 30-10-2007, dismissed the rent application by holding that the appellant has hot committed default. The respondent filed appeal aggrieved by the order of the learned Rent Controller, which too was dismissed by the learned IV Additional District Judge, Hyderabad, vide judgment dated 26-01-2009. The respondent impugned both the orders by filing the writ petition under Article 199 of the. Constitution of the Islamic Republic of Pakistan, 1973, which was accepted through the impugned order.
4. ' Heard Mr. Rafique Ahmed, learned Advocate Supreme Court, for the petitioner and Dr. Itifaq Hussain, respondent No,1, in person.
5. ' Learned counsel for the petitioner contended that the petitioner is regularly depositing rent in Miscellaneous Rent Application, initially filed by him in January, 1996 and after enhancement of the rent on application filed by the respondent, he started depositing the enhanced rent in another Miscellaneous Rent Case. He further contended that the respondent has been withdrawing the rent periodically and at no point of time raised objection that the rent for the month of October, 1995 was deposited in January, 1996 and that the appellant has committed default. He further contended. That much after January, 1996,on the enhancement of the rent under the order of the Court, the appellant started depositing rent in another Misc. Rent Case, which too was withdrawn by the respondent. The learned High Court committed error of law in upsetting the concurrent findings of the facts by the two Courts below and based on the evidence on record.
6. ' On the other hand, respondent No,1, who appeared in person, admitted that he had withdrawn the rent of October, 1995 on its deposit by the appellant in January, 1996 and thereafter regularly withdrawing the rent and filed the Rent Case for committing default in the year 2003. He- contended that once the default has been committed, the respondent has a right to file the ejectment proceedings at any time. In support of his contention he relied upon the case of Badruddin v. Muhammad Yousuf (1994 SCMR 1900), Joseph Dean v. Mrs. Miratur Ruqayya (1993 CLC 896), Haji Qasim through Legal Heirs v. Syed Rahim Shah (1999 MLD 1014) and Nadeem Ahmed Alvi v. Omar Haleem (1996 MLD 791).
7. ' We have taken into consideration respective arguments advanced by the parties and perused the record.
8. ' From the perusal of the record it appears that the respondent has not specifically pleaded the period for which the appellant has committed default and alleged that the appellant has not deposited rent in Court in time in respect of the said Shop from January, 1996, to December, 2002.
9. In the affidavit-in-evidence the respondent again not specified the time when the rent for the months of January, 1996 up to December, 2002 were deposited by the appellant. It further appears that the appellant, on refusal of respondent No,1/landlord, started depositing rent in Court in Miscellaneous Rent Case filed sometime in January, 1996, when he for the first time deposited rent for the month of October, 1995 to January, 1996 and thereafter and he started depositing rent in another Miscellaneous Rent Case upon the enhancement of rent by the order of Court. The respondent/landlord admittedly withdrawing rent from die office of the Rent Controller regularly since 1996 and not alleged default, if any, committed by the appellant and for the first time filed the Rent Case in the year 2003.. The respondent despite having knowledge of deposit of rent for the month of October, 1995 in January, 1996, did not raise any objection and instead of filing ejectment proceedings on the ground of default filed Rent Case No, 201 of 1996 for the enhancement of rent and for the first time filed ejectment application after seven years cannot claim ejectment on the ground of default as apparently he has waived his right in that respect on the principle of acquisition/waiver by his conduct. Respondent No,1 relied upon the case of Badruddin (supra) where this Court held that the landlord even on the basis of time barred, rent would be entitled to file ejectment case on the ground of default is not applicable to the facts of this case, whereas in the case is Haji Qasim (supra) High Court of Sindh had not accepted deposit of rent in Miscellaneous Rent Case as a valid tender instead of depositing the rent in compliance of tentative rent order passed by the Rent Controller.
10. ' For the foregoing reasons the appeal and C.M.A. No,219-K of 2011 are allowed, the impugned judgment of the High Court of Sindh is set aside and the orders passed by the Rent Controller and