' This is a petition brought by a tenant to challenge the validity of the order of his ejectment passed by the Rent Controller, Lahore, on 6-11-1979, which was affirmed in appeal by the Additional District Judge, Lahore, on 12-7-1980.
2. The order of ejectment followed a concurrent finding on the following two issues : "(1) Whether notice under section 13-A of the Ordinance VI of 1959 is required to be served upon the respondent, if so, whether it has been served ?
(2) Whether the respondent is defaulter in the payment of rent."
3. As regards the first issue, the admitted position is that the property in question had been purchased on 30-6-1972 by Abdul Rashid, the respondent landlord, from Abdul Hamid, the transferee of the property, but that the new landlord had not served any notice as required under section 13-A of the West Pakistan Urban Rent Restriction Ordinance VI of 1959. However, the Controller and the Appellate Authority had found that as the tenant by tendering rent to the respondent had acknowledged him to be the new landlord, he was estopped from raising the objection. For this they had relied on Nazar Hussain v. Aslam Shah (1). The contention as raised before me is that a notice in the manner prescribed by law was necessary and in the absence of such a notice, the tenant was under no liability to pay rent to the new landlord. Reliance has been placed on E. A. Evans v. Muhammad Ashraf (2) and Sardar Begum v. Lahore Improvement Trust (3).
4. Section 13-A, prescribed that "the new owner shall send an intimation of such transfer in writing by registered post, to the tenant of such building or rented land . The rule enunciated by the Privy Council in Nazir Ahmad v. K. E. (4) that "where a power is given to do a certain thing in a certain way, the thing must be done in that way, or not at all", has to be applied if the provision of the law is meant for public benefit and not for the benefit of an individual, for it is open to an individual to waive a benefit given to him by law. It is commented in Maxwell's Interpretation of Statutes, 12th Edition, at page 328 that : "Everyone has a right to waive and to agree to waive the advantage of a law made solely for the benefit and protection of the individual in his private capacity, which may be dispensed with without infringing any public right or public policy."
' One of the examples cited is Stylo Shoes, Ltd. v. Prices Tailors, Ltd. (5) where a question arose whether a notice to determine an existing tenancy under the Landlord and Tenant Act, 1954 had not been served "by leaving it for (the tenants) at (their) last known place of abode in England" as required by section 23(1) of the Act. The tenants there had in fact received the notice and had intimated to the landlords that they would not be willing {{FOOT NOTE}}
(1) PLD 1977 Lah. 210 (2) PLD 1964 C S 536
(3) PLD 1972 Lah. 458 (4) AIR 1936 P C 253 {{FOOT NOTE}} ' to give up possession of the premises and had issued an originating summons for a new tenancy.
It was held that the notice had been properly served and that even if it had not been duly served, the tenants must in the circumstances be taken to have waived any invalidity in the service. The same principle has been stated in Craies on Statute Law, Seventh Edition, page 270, in the following words "So also if a statute simply enables a particular class of persons to do or refrain from doing some particular thing under certain circumstances, it is optional with those persons whether they avail themselves of the privilege afforded them by the statute, or whether they waive their right of doing so."
' For the exception from this rule, it has been stated : "But the conditions in an enabling Act which have been prescribed for the purpose of protecting or benefiting the public cannot be dispensed with."
' In Prepn Perkash v. Mohan Lal (1), the criterion laid down had been "whether these prohibitions were really made for the benefit of the judgment-debtor only or in the interest of the society at large, i,e,, on grounds of public policy". In the afore cited Evans' case, the majority view in the Supreme Court had been expressed in the following words :- "We are inclined, therefore, to take the view that reading the provisions of the Act as a whole section 30 was not intended to protect private rights, for, mere allottees did not by the allotment alone acquire any right in the property but were designed as a matter of public policy to give general protection to such occupants not only as to ir-removability for a reasonable period but also as to occupation upon payment of a reasonable rent."
' The other cited case of Mst. Sardar Begum related to service of notices under sections 9, 11 and 16 of the Land Acquisition Act of 1894, which can easily be held to be a matter of public policy. Can we say that the provision of section 13-A was meant for the good of the society at large and not for the benefit of a party in a particular case governed by that provision? Section 13-A presupposes knowledge on the part of the tenant as to the previous landlord and his liability to pay rent to that landlord. It is only when a new owner steps in by sale, gift, inheritance or in any other manner, that the tenant has to be notified of the change so that he pays rent to the new landlord instead of the old one. The position under the Displaced Persons (Compensation and Rehabilitation) Act is different because there the tenant does not know the owner until upon the issuance of the P. T. D. a notice as prescribed under section 30 has been served on him. There is thus a marked distinction between the two provisions. I am, therefore, not inclined to the view that the provision of section 13- A of the Ordinance is anything but for the benefit of the tenant. That being so, he can waive or agree to waive it. This view finds support from the case of Nazar Hussain v. Aslam Shah already relied upon by the Tribunals, where it has been held : " . . . Section 30, on the other hand, provides that the normal procedure under the West Pakistan Urban Rent Restriction Ordinance or under the Transfer of Property Act shall come into force only if {{FOOT NOTE}}
(1) AIR 1943 Lah. 268 {{FOOT NOTE}} ' a notice in accordance with the provisions of subsection (1) of that section is served upon the person in possession and a default is committed by him in the payment of the rent within 90 days of such service. The analogy of that section cannot, therefore, be applied to a case under section 13-A.
' If in a given case the tenant is proved to know about the death, acknowledges the heir or the transferee as the landlord and starts paying rent to him, a fresh tenancy will be deemed to have been created in favour of the person who has received the property by devolution or transfer."
' The' finding on the first issue is, therefore, in accordance with the law.
5. On the other issue I find that the period of default alleged had been from January, 1975 until the date of institution of the ejectment application, i,e,, 26-11-1977. The petitioner/tenant's case was that he had paid rent up to May, 1975, where after he had received a notice (Exh. P. 3) from the landlord asking him to vacate the premises on the ground that he required the same for personal use, that he (tenant) remitted rents through money order for five months thereafter but that as the same were not received by the landlord he sent no more money orders nor did he remit the rent in any other manner. This was held by the Tribunals to amount to a wilful default. Learned counsel for the petitioner referred me to Rehmat All v. Khadeja Hakim (1) to say that where the landlord had himself refused to receive rent, he could not turn round and hold the tenant a defaulter. It has been observed in this authority that : "In cases where rent is tendered by the tenant once or twice, but is refused by the landlord, and no further payment of rent is made by the tenant, the real question is whether the tender of further rent was not made in the belief that rent would not be accepted by the landlord ; because if that be the position and it be clear that the landlord is not willing in any circumstance to accept the rent, if it is tendered to him, then the Court must incline in favour of the tenant, and exercising its discretion in his favour, decline to eject him."
' But this observation is followed by the remarks "It is, however, in the interest of the tenant to protect himself from an order of ejectment, by tendering rent to the landlord periodically, so as not to run the risk of being declared a defaulter, even if he does not accept the rent."
If the landlord had moved for ejectment for default in payment of rent for those months only the rents for which had been tendered but refused, the tenant could have a case and the discretion could have been exercised in his favour but a refusal by the landlord can hardly be held to discharge a tenant from his obligation to pay rent for the subsequent months too. He remains under a liability to the landlord to pay rent as and when the same became due. {{FOOT NOTE}}
(1) PLD 1967 Lah. 29 {{FOOT NOTE}} ' This view finds support from Yousaf Shah v. Ghulam Jan Khan (1), in which it has been clearly laid down that "It is well settled that the mere refusal of the landlord to accept the rent tendered on an earlier occasion does not absolve the tenant of his continued liability to pay or tender the same for each successive month."
' The period for which no rent had been tendered is considerable and as such the default cannot but be held to have been wilful. The finding on the issue is thus fully justified.
6. The writ petition, therefore, fails and is accordingly dismissed in limine. {{FOOT NOTE}}
(1) 1975 SCMR 464 {{FOOT NOTE}}