1. ' AFTAB AHMED GORAR, J.---Through this Constitutional Petition, petitioner has impugned the Order dated 21-10-2010 passed by 1st Additional District Judge, Karachi East whereby he dismissed F.R.A.
2. No,209/2009 filed by the petitioner/tenant whereby upheld the order dated 8-8-2009 passed by Ilnd Rent Controller, Karachi East dismissing the rent application filed by the petitioner.
3. ' Brief facts giving rise to the filing of instant petition are that the petitioner filed Rent Case No,516/2007 for ejectment of respondent No,3 from shops Nos.92 and 93 situated adjacent to Hanifia Alamgir Jama Masjid Trust, Area 2-A, Sector 37-K, Near Babar Market, Landhi No,3, Karachi. It was stated in the rent application that the husband of respondent No,3 was tenant of the petitioner in respect of said shops vide tenancy agreement dated 15-5-1978 at the monthly rent of Rs,40 per shop which was subsequently enhanced to Rs,67 per shop i,e, Rs,134 for both the shops excluding other charges. Having come to know about the death of respondent's husband, the petitioner sent Notice dated 24-9-2007 to Mohammad Idrees, son of the respondent, who was in physical possession of the said shops asking him to disclose the names of legal heirs of the tenant and the person in whose name rent receipt is to be issued. In reply he requested to change the receipt in the name of respondent No,3, Mst.Hadeesa-un-Nisa. Although said Mohammad Idrees Khan who is running the business of his late father in the said shops, neither bothered to pay the rent nor got the tenancy agreement executed in the name of the respondent. The last rent paid in the name of late husband of the respondent, without disclosing the fact of his death on 11-2-2003, was for the month of July, 2007 and thereafter no rent till date was paid in spite of reply dated 11-10-2007. It was further averred that after the death of her husband and submission of reply dated 11-10-2007 through her son, she is deemed to be in exclusive occupation and possession of the said shops and being widow and legal heir of the actual tenant and in the light of reply dated 11-10-2007, the respondent has become tenant and has defaulted in payment of rent for four months from August to November, 2007 amounting to Rs,536.
4. ' The respondent failed to file written statement, therefore, she was debarred from filing written statement vide order. Dated 29-8-2008. The learned Rent Controller after framing the point of default in payment of rent;'recording the evidence of the petitioner side, as none appeared on behalf of the respondent, and hearing the counsel for the parties, r' dismissed the rent application vide Judgment dated 8-8-2009. The petitioner preferred appeal against the said order which was also dismissed vide Order dated 21-10-2010, hence this petition.
5. ' Learned counsel for the petitioner contended that the two courts below have erred in law and on facts while passing the impugned orders; that the courts below wrongly observed that petitioner did not mention the fact of default in payment of rent from August to November, 2007 in letter dated 24-9-2007 as at the relevant time there was no default under the law; that five months' accumulated rent was sent through money order which was not permissible under the law; that money order was sent on 14-11-2007 in the name of husband of the respondent although he had expired in the year 2003; that first time rent was deposited in court on 3-12-2007 i,e, after the default in payment of rent had occurred. He prayed for the allowing the petition and setting aside of the impugned orders.
6. ' On the other hand, learned counsel for the respondent contended that the impugned orders are in accordance with the law and sound reasons have been assigned for passing the sane; that no illegality or material irregularity has been committed by the two courts below while passing the impugned orders; that there is no default in payment of rent as when rent was collected by the rent collector, the rent first was sent through money order and on refusal of the landlord to accept the money order the same was deposited in court through M.R.C. No,319/2007. He prayed for dismissal of the petition.
7. ' I have heard learned counsel for the parties and perused the material available on record.
8. ' It appears that the learned Rent Controller as well as learned Appellate Court have based their findings on the following grounds:--
(i) that there was practice of collecting the rent in lump-sum for few months, as such there was no default if the respondent had sent accumulated rent for few months.
(ii) that the petitioner in the letter dated 24-9-2007 did not disclose the fact of alleged default having been occurred for the months August to November, 2007, therefore it cannot be said to be wilful default;
(iii) that the death of the husband was in the knowledge of the petitioner, therefore it cannot be pleaded that they had no knowledge about the death of respondent's husband; ' So far as first ground is concerned, suffice it to say that it is the sole responsibility of the tenant to pay the monthly within time to the landlord and he cannot absolve himself from such responsibility merely for the reason that nobody came to collect the rent from the side of the landlord or that there was a practice for tendering the rent for few months in lump-sum. In the case reported as Muhammad Saleh v. Muhammad Shafi 1982 SCM R 33 honourable Supreme Court held as under:-- "Even otherwise inaction or allowing an opportunity to pass by does not necessarily amount to waiver because when for instance, a tenant consistently fails to pay rent being aware of his obligation to pay it or where there is delay by the landlord in filing an ejectment petition out of decency to the tenant or hesitates in going to the court or for any other reason, the tenant cannot be allowed to take up the plea that the landlord had, by his conduct in failing to take action, waived his right to receive the rent. It has been held that even gratuitous indulgence shown by one of the parties does not constitute estoppel or waiver. Omission to enforce one's legal right strictly cannot give rise to an inference that. The .Right has been abandoned."
9. ' In the case reported in 1986 CLC 393 it was held as under:-- ' It is also not denied that the appellant has been paying the rent in lump sum for more than one month. According to the learned counsel for the appellant this was done as per practice that has evolved in due course of time. It may be observed that such practice has always been disapproved by the superior courts which have always construed it as a sort of concession emanating from the helplessness of the landlord. The Courts have, therefore, been of the view that such condonation of the tenant's lapses by the landlord should not be interpreted as a practice giving licence to the tenant to adopt the same as if it is a perpetual arrangement made with willing consent of the landlord."
10. ' In the case reported in 1986 CLC 93 it was held that the default in payment of rent committed by tenant could not be condoned merely because landlord himself did not go to tenant to collect the rent.
11. So far as other two grounds, as stated above, are concerned, admittedly after the death of husband of respondent's husband her son namely Mohammad Idrees was running the business of his late father in the shop in question. After the death of her husband, respondent No,3 was under legal obligation to tender the rent to the landlord in time and even if she was a parda nasheen lady, she could have tendered the rent through her son who was in physical possession of the shops and was running business therein, but neither she herself nor her son took any step to tender the monthly rent in time, therefore respondent/tenant cannot absolve herself from fulfilling her legal obligation merely on the ground that the landlord in their letter dated 24-9-2007 did not disclose the fact of alleged default having been occurred for the months August to November, 2007 or that the petitioner/landlord was in the knowledge of the death of the respondent's husband.
12. ' The upshot of above discussion is that the constitutional petition is allowed and the order/judgment passed by the Appellate Court and the Rent Controller respectively are set aside.
13. Respondent No,3/tenant is directed to vacate the premises in question and hand over its vacant and peaceful possession to the petitioner within 30 days.