ASLAM RIAZ HUSSAIN, J.-This is tenant's petition for leave to appeal against the judgment of a learned Single Judge of the High Court dated 14-12-1980. Muhammad Saleh, petitioner, was a tenant under Muhammad Shaft, respondent, in respect of property bearing No. D-239 to 243, situated at Shikarpur Road, Sukkur.
2. In 1976 the landlord (Muhammad Shafi, respondent) filed an ejectment application against the petitioner. On 7-4-1977 the learned Rent Controller passed an order under section 13(6) of the West Pakistan Urban Rent Restriction Ordinance directing the petitioner to deposit an amount of Rs.
1,902.50 as arrears of rent for the period between 9-6-1973 to 31-1-1977. It was ordered to be deposited in three instalments by the 15th of February, March and April, 1977. The petitioner was further ordered to deposit the monthly rent at the rate of Rs. 67.50 in the Court before 15th of each calendar month.
3. The petitioner failed to deposit the first two instalments of the arrears of rent inasmuch as instead of depositing the same before 15th of February and March, 1977, he deposited the same on the 15th of the said months.
4. Subsequently, on 6-7-1977 the ejectment application was dismissed in default. But on an application filed by the respondent/landlord under Order IX, rule 9, C. P. C. Read with section 151, C.
P. C. It was restored on 11-12-1977.
5. During the period from July, 1977 (when the ejectment application was dismissed in default) to December, 1977 (when the same was restored) the petitioner kept on sending the monthly rent to the landlord by money order which the latter refused to receive. But the petitioner admittedly stopped tendering or depositing the monthly rent after the ejectment applica--tion had been restored.
6. On 4-2-1979, the landlord filed an application for striking off the petitioner's defence for non- compliance with the order of the Rent Controller under section 13(6) of the aforesaid Ordinance whereby he had been directed to deposit the arrears of rent, as well as the future monthly rent. It was urged that he (the tenant) had not paid any rent after December, 1977 and had also been guilty of one day's default in depositing the instalments of the arrear of rent in the month of February and March, 1977. The learned Rent Controller allowed the application, and struck off the petitioner's defence by his order dated 4-3-1979, and directed the petitioner to vacate the premises in dispute within 30 days.
7. The petitioner filed an appeal before the learned Additional District Judge, Sukkur, who dismissed the same on 13-10-1979. The petitioner then filed the second appeal before the High Court which too was dismissed vide the impugned judgment. Hence, the present petition.
8. It was contended by the learned counsel for the petitioner before us firstly, that provisions of C. P.
C. Are not applicable to proceedings under the West Pakistan Urban Rent Restriction Ordinance.
He contended next that when the ejectment application was restored on 11-12-1977, the order for depositing the monthly rent under section 13(6) of the Ordinance did not revive automatically.
9. He submitted lastly that, in any case, the fact that the landlord had not objected to the delay in the deposit of the arrears of rent or the non---deposit of the rent for more than one year after December, 1977 after the petitioner tenant stopped tendering went to show that he had waived his right of asking for the striking off the petitioner's defence. In support of this contention he relied on S. Masood Hussain v. Muhammad Saeed khan (PLD 1965 Lah. 11), Zahurul Hasan & Bros. v. Abdul Husain and others (PLD 1977 Kar. 252), Sh. Abdul Ali v. Zaheer Ali Jaura (1982 CLC 153 ).
10. The first of the above-noted two contentions has no merit. The learned counsel himself admitted that although the provisions of C. P. C. Are not applicable in terms to the proceedings under the West Pakistan Urban Rent Restriction Ordinance yet the Rent Controller may, in his discretion, follow and apply them if he considers it necessary to do so. (See PLD 1976 SC 422), and that in any case the principles thereof are applicable to proceedings under the said Ordinance.
11. As for the second contention, it has been repeatedly held that once a suit or appeal, dismissed for default is restored by the order of the Court under Order IX, rule 9, C. P. C. All ancillary orders passed in the suit of appeal before the dismissal also stand revived and become operative since that date with all their legal implications.
In Saranatha and others case (AIR 1934 Mad. 49) it was held that as a matter of general rule, where a suit dismissed for default is restored, all interlocutory orders also stand restored. This view was relied upon by the Sind High Court in Abdul Rahman v. The Federation of Pakistan (PLD 1955 Sind 248) while holding that an order of restoration under Order IX, rule 9, C. P. C. Not only restores the suit but also the interlocutory orders that may have been passed in plaintiff's favour. 3n that judgment Mr. Justice Inamullah Khan referred, with approval, to Chitaley's commentary under Order IX, rule 13, C. P. C. Which is a pari materia provision. The relevant portion of the said Commentary reads as follows :- "The effect of setting aside an ex parte decree is to restore the parties to the position they previously occupied and the Court should proceed to decide the suit as it stood before the decree- --------Any attachment that has been issued or any sale that has taken place in pursuance of the ex parte decree, becomes null and void The same view was taken by the High Court of Patna in Bankim Chandra and others v. Chandi Prasad (AIR 1956 Pat. 271) and it was held that on restoration of the suit, all ancillary orders passed before its dismissal in default also revive and become operative with retrospective effect.
We are, therefore, of the view that when the ejectment application was restored by the learned Rent Controller, on 12-12-1979, the order for depositing monthly rent under section 13 (6) of the Ordinance also stood revived with retrospective effect, and as such non-compliance with the same rendered petitioner's defence liable to be struck off.
12. The last contention, namely, that the mere fact that the landlord had not objected to the late deposit of the monthly rent after December, 1977, goes to show that he had waived his right of applying for the striking off the petitioner's defence has also no force.
(We may mention here that for the purpose of considering the afore--mentioned question we are overlooking the, delay of one day each in the deposit of arrears of rent in the months of February and March, 1977).
As already mentioned, in support of the above-mentioned contention, the learned counsel relied on PLD 1977 Kar. 252, 1982 CLC 153 and PLD 1965 Lah. 11.
Of these, the first judgment is not relevant as it does not relate to the question of `waiver' by the landlord of his right under section 13(6) of the Ordinance. The remaining two cases are, however relevant for this purpose. But in the case of Sh. Abdul Ali the facts were different. In that case, an application for ejectment filed by the landlord was accepted without the learned Rent Controller, first having passed an order for deposit of rent under section 13(6) of the aforesaid Ordinance. The plaintiff landlord had not objected to the omission of the learned Rent Controller to pass the order but the tenant objected that his ejectment could not be ordered without, in the first instance, passing an order under the said subsection. It was under these circumstances that the learned Court observed that since the provisions of section 13(6) were meant for the benefit of the landlord, he could waive the same.
12. In the case of Syed Masood Hussain (PLD 1965 Lah. 11) the facts appear to be similar to the case in hand as the landlord in that case also had not taken any objection to the tenant's non- compliance with the order under section 13(6) to deposit the monthly rent, for a period of more than one year but there is a significant difference which must be mentioned. 1n the present case the petitioner had committed default in the deposit of rent for as many as 13 months before the respondent landlord took objection and asked for striking off his defence, whereas in the case of Masood Hussain in the default on the basis of which the defence was required to be struck off was only for one month and moreover the delay in depositing it was only of one day.
13. In the case of S. Masood Hussain the learned Judge of the High Court, relying mainly on 41-Ar- Rm. Vellavan Chattlar v. Government of Province of Madras (AIR 1949 Mad. 747), 'Bodi Vankataswa mi v. Adada Mehalakshmi (AIR 1949 Mad. 747), Jalal Din v. Azizuddin (PLD 1963 Lah, 436) and Maxwell on Interpretation of Statutes (11th Edn.), p. 376, held that since the provisions of section 13(6) of the Ordinance have been enacted for the benefit of the landlord, he could, waive the same, and since in the case in hand the landlord had not objected to the non-comp--liance of the order of deposit of rent for a period of more than one year, he bad evidently waived the said right.
14. This view was, however, dissented from by Mr. Justice Dorab Patel in Mst. Baehi Bai v. Ghulam Abbas (PLD 1977 Kar. 278). In that case the Rent Controller bad passed an order under section 13(6) of the Ordinance directing the tenant to deposit the monthly rent pending the disposal of the ejectment proceedings. But the tenant was late in depositing the same continuously for a period of about 1-- years. The landlord then filed an application for striking off her defence. It was contended on behalf of the tenant that since the landlord had not objected earlier notwithstanding the persistent delay in the deposit of the monthly rent by the tenant the (i.e. The landlord) was now barred by waiver from applying for striking off the tenant's defence. On these facts it was held that a litigant's conduct might amount to waiver when it is coupled with an estoppel but it cannot be said that a landlord's delay in asserting remedies under section 13(6) of West Pakistan Urban Rent Restriction Ordinance, 1959, can possibly create any estoppel or amount to election which is but another form of estoppel. It was observed that sub--section (6) of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, does not impose any duty out the landlord not to be silent, therefore, it does not lend any support to the view that landlord's delay in asserting his remedy under this subsection would, by itself amount to delay. As the Ordinance does not prescribe the period within which such an application has to be filed, mere delay by a landlord in filing such application cannot by itself amount to waiver. The delay by the landlord in this case in filing his application was not inconsistent with the continuance of his right because as the Ordinance has not prescribed any period for filing an application for striking off the defence of a tenant. Similarly it cannot conceivably be contended that the tenant had altered her position to her detriment on account of the landlord's delay. Therefore, this is not a case in which waiver can be said to have ripened into an estoppel.
15. While coming to the above-noted conclusion the learned Judge in the case of Mst. Bachi Bai also referred to and distinguished the authorities relied upon by the High Court in the case of Sayed Masood Hussain namely PLD 1947 P C 160 and AIR 1949 Mad. 747. The learned Judge observed that the Madras case turned upon the plea of - n express waiver by the Advocate for the defendant and, therefore, it had no relevance whatsoever to the question whether the delay by party in enforcing his remedy amounted to implied waiver. As to the Privy Council case reported in PLD 1947 P C 160 the learned Judge observed that although the Judicial Committee did not hold that the Government can waive its immunity under section 80, C. P. C. And that waiver could also be inferred from conduct, but on the facts of the case it rejected the appellant's plea that the Province of Madras had waived its immunity under section 80.
16. Having given our careful consideration to the above-noted question, we are inclined to agree with the view taken by Mr. Justice Dorab Patel in Mst. Bachi Bai's case. In this we are fortified by the definition of the word "waiver" given in Wharton's Law Lexicon which reads as follows:- "The passing by an occasion to enforce a legal right whereby the right to enforce the same is lost. A common instance of this is where a landlord waives a forfeiture of a lease by receiving rent or distraining for rent which has accrued due after the breach of covenant causing the forfeiture became known to him." As stated in Bigelow (6th Edition), pp. 728-729: Waiver differs from estoppel by representation in two important respects. Firstly, waiver is generally created upon knowledge of all the facts by both the parties but in cases of estoppel by representation knowledge of the facts by the representee destroys the estoppel. Secondly, in cases of waiver there should be some clear and decisive act or conduct beyond mere silence, as pure silence by a party in regard to a` right perfectly known to the other can rarely mislead a man of average intelligence."
17. Reading the above-noted definition and quotation together it evident that in order to establish "waiver" by conduct" it must be shown that the person entitled to the right had knowledge of the breach thereof , and secondly, that he had acquiesced or failed to act, notwithstanding that knowledge. Therefore, mere failure to object or to take action due to ignorance of the breach of his right cannot be said to give rise to any "waiver by conduct". In support of this reference may be made to Yyvyan v. Vyvyan ((1861) 30 Beav. 65), Maxan v. Payne ((1873) 8 Ch. App. 881), Federal Supply Co. v. Angehrn ((1910) 26 T I R 626 (P C)), R. v.Essex Justice Ex pane Pakistan ((1927) 2 K B 475), Dhanukdhari Singh v. Nathuni Sahu (6 C L J 62), Nari ati oath Bhattacharjie v. Deckuran Nanji (AIR 1924 Born. 370), Zamorin Raja Avergel v. Unikat Karnawan (AIR 1922 Mad. 290) and Rhat Fatima Bibi v. Anwar Fatima Bibi (AIR 1939 All. 348).
18. Even otherwise mere inaction or allowing an opportunity to pas-2 by does not necessarily amount to waiver because when, for instance, sic tenant consistently fails to pay rent, being aware of his obligation to pay it, or where there is a 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 falling 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 estopple of waiver. Omission to enforce one---s legal right strictly can not give rise to an inference that the right has been abandoned. Reference, may be made to Shehnshah Shahalam Co-operative House Building Society Ltd. v. House Building Finance Corpora--tion (PLD 1972 Kar. 178). In that case the learned Judge observed as follows:- "Instead the Corporation took a long time to enforce the penalty clause but this was with a view to safeguard its own interest and was merely to consider the ways and means of helping the appellants to retrieve the position. So, it was a case of more indulgence shown to the appellants rather than any waiver."
19. As a result of the above discussion, we are of the view that in the absence of anything having been brought on the record to show. That the respondent-landlord had refrained from taking any action or had failed to apply for striking off the petitioner's defence, even though he knew all the time that the tenant had failed to deposit the monthly rent from January, 1978 onwards as ordered by the Rent Controller, it cannot be said that he had in any manner, waived his right to request for striking off the petitioner's defence either by conduct or by implication.
As a result of what has been observed above, we feel that the petition has no merit and is, consequently, dismissed.
20. Before parting with this case, however, it may be mentioned that we have considered and decided the case on the arguments urged before us by the counsel and on the basis of the assumption made by the learned Judges in the cases of S. Masood Hussain (PLD 1965 Lah. 11), Sh.
Abdul Ali and Mst. Bachi Bai (PLD 1977 Kar. 78), that the provisions of section 13(6) of the Urban Rent Restriction Ordinance are only for the benefit of the landlord, and as such could be waived by him.
Another view is, however, possible and could have been canvassed with some force, namely, that the said provision is not merely for the benefit of the landlord but is based on public policy. The Rent Restriction Ordinance has been enacted to regulate the relationship between tenants and landlord, with a view to protect the interest of each class or section, and the provision of section 13(6), requires the Rent Controller to direct the tenant to deposit the arrears of rent and the future rents as an evidence of good faith on his part and to prevent him from using the proceedings as means of avoiding paying the rents due from him, just as section 22 of the Punjab Pre-emption Act requires the pre-emptor to deposit the 1/5th of the probable value of the land or property, in the Court by way of a guarantee of his bona fides, and to ensure that the suit is not frivolous. Failure to make such deposit renders suit for pre-emption liable to rejection. Similarly, a default in the deposit of rents as ordered by the Rent Controller, renders the tenant's defence liable to be struck off. In fact, the provision in this case is much more stringent and provides that in case the tenant avoids the payment and commits default, his defence must be struck off. The relevant portion of the aforesaid mandatory provision may be reproduced below for facility of reference:- If the tenant makes default in compliance of such an order then it' be is the applicant, his defence shall be struck off and the landlord put into possession of the property without taking any further proceedings in the case..."
A question, therefore, can legitimately be raised as to whether the landlord has any right to waive away the power of the Rent Controller under the said provision to strike off the tenant's defence. In other words, would such an order become illegal or ineffective if the landlord refuses to press it into service or waive it expressly. We think not. This view finds support from the dictum of this Court in E.
A. Evans v. Muhammad Ashraf (PLD 1964SC536). In that case, leave was granted, litter alia, to consider whether the occupant of an evacuee house could construct or opt out of the valuable right given to him by section 30 of the Act and even if he could opt out of it the agreement in that case was void being wholly without lawful consideration.
The counsel for the appellant in that case urged that since the production under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, had been given as a matter of public policy, a private person could not be permitted to impair the integrity of a rule laid down for the common protection of a particular section of the public. On the other hand it was argued on behalf of the respondent that the protection was a personal one for the benefit of the occupant alone, arid as such, it is open to the occupant to waive a protection or contract out of it, particularly, since there is nothing in the statute itself which can be construed as a prohibition against it. In support of this contention, the learned counsel relied on Maxwell's Interpretation of Statutes, 11th Edition, page 376, which reads as under: "Everyone has a right to waive and to agree to waive the advantage of a law or rule 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. Where in an Act there is no express prohibition against contracting out of it, it is necessary to consider whether the Act is one which is intended to deal with private rights only, or whether it is an Act which is intended as a matter of public policy, to have a more extensive operation."
The learned Court after considering these contentions came to the following conclusion:- "We are inclined, therefore, to take the view that reading the pro--visions of the Act as a whole section 30 was not intended to protect 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 irremove-ability for a reasonable period but also as to occupation upon payment of a reasonable rent."
The Court then referred to the view of the British Courts, in relation to the rights created by similar statutes and observed that: "---.. Thus the view which has prevailed in England in construing Rent Acts which created similar statutory tenancies and contained similar protective provision is that:- "Notwithstanding the absence of any express statutory provision, it is impossible to contract out of the Acts, whether by a provision in a lease or tenancy agreement or otherwise, nor can the doctrine of estoppel exclude the Acts. An Agreement by a tenant to pay more than the rent permitted by the Acts, or obliging him (even indirectly) to give up possession where the Acts do not require him to do so is void so far as it conflicts with the Acts and will not be specifically enforced at the suit of the landlord."
Finally it came to the conclusion that:- "We are of the view, therefore, that a person protected by section 30 of the Act of 1958, could not lawfully contract out of the protection for, such a contract would be void being against public policy."
21. However, as already mentioned, we have decided the case in hand on the assumption made by the learned Judge of the High Court in the case mentioned earlier that an order under section 13(6) is only for the benefit of the landlord, and on the arguments urged before us by the learned counsel for the parties. As such the view mentioned here may be considered and decided, if urged, in any other suitable case.