The dispute in this case ii about a house bearing Municipal No. 6-7/78 (15) Toghi Road, Quetta. The respondent (hereinafter referred to as the "landlord") has filed an application for the eviction of the appellant (hereinafter called the "tenant") from that house. In the course of proceedings the Rent Controller on 15-7-1979 passed an order directing the tenant/appellant to deposit the arrears of rent within the date fixed therein and the future rent, in accordance with section 13(6) of the West Pakistan Urban Rent Restriction Ordinance VI of 1959 (hereinafter referred to as the Ordinance). As the tenant made default in the payment of rent for the month of June, 1980 the landlord applied on 1-6-1981 that the defence of the tenant should be struck off and the landlord be put in possession of the house. The tenant filed a reply in which he took the stand that (i) that the default pertained to the month of June 1980 which amounts to waiver in view of the decision in PLD 1965 Lab. 11. (ii)
That the respondent has been depositing the rent continuously and legally speaking there is no default in depositing the rent. If at all there is any delay of two or three- days in respect of the depositing of the rent pertaining to the month of June 19'0 that is not legally considerable in view of the legal objection. In fact the respondent was seriously ill and had undergone an operation with the result that the delay of two or three days had occurred.
2. The application of the landlord ~ was beard on 17 7-1981 and 25-8-1981 and was fixed for orders on 31-8-1981. However, on 30-8-1981 ,the tenant made an application and filed a medical certificate. After considering the objections made on behalf of the tenant the landlord Controller struck off the defence and passed an order of eviction on 31-8-1981. The present appeal is against this order.
3. Mr. Mohammad Moquim Ansari, Advocate, appearing for the appellant has raised two-fold contentions before me, (i) that the application for stricking off the defence was belated and amounts to waiver. (ii) That the learned Controller has not afforded opportunity to the tenant/appellant to prove his plea of defence namely illness due to which delay in depositing the rent took place. I enquired from the learned counsel if any application explaining the reasons for default was made when the rent was tendered on 17-7-1981 and his reply was in the negative. I have also see the challan whereby the rent has been deposited. It is found that the appellant had surreptitiously made payment of rent without disclosing to the Court the month for which the rent was to be paid. The challan contain manipulation/erasures. (I have shown the same to the counsel for the appellant and have encircled the same). The learned counsel for the appellant could not give any satisfactory explanation as to why this erasion was mad or why the month for which the rent was tendered was not mentioned. In my opinion this was done by the tenant with a apparent desire that the default may not be detected as the challan was being presented for approval of the Court on 17-7-1981 and the due date had already expired.
I am constrained to hold that the plea of illness is an afterthough inasmuch as it was not put forward before the Controller when he had 8 sought permission from him to deposit the rent on 17- 7-1981 and surreptitiously filled in the challan without mentioning the month/months for which the rent was being tendered.
4. It is submitted by Mr. Mohammad Moquim Ansari that the default in payment of rent was made for the month of June, 1980 while the application was filed on 10-6-1981 after about one year therefore the landlord should be deemed to have waived the default and in support of his submission relied on Syed Masood Hussain and others v. Muhammad Saeed Khan and others (PLD 1965 Lah. 11). Such a plea of waiver also came up for consideration before the Karachi Bench in PLD 1972 Kar. 278 and in M. A. Yahya v. Nawab Abdul Malik Estates Ltd. (1982 CLC 772); and in the latter case Mr. Justice Naimuddin referring Munir's book entitled "Principles and Digest of the Law of Evidence" 1969 Edition quoted page 359 which reads :-- "Waiver is an intentional relinquishment of a known right, or such conduct as warrants an inference of the relinquishment of such right ; it implies consent to dispense with or forego something to which a person is entitled. It is contractual and may constitute a cause of action. It is an agreement to release or not to assert a right. Mere omission to claim or enforce a right for some time does not amount to waiver of the right." (Italics is mine)."
In the present case it is not alleged nor proved that the landlord had acquired knowledge of default made which could show that he had consciously or knowingly waived the right. Rather the fact by the perusal o the challan has come to light that the tenant/appellant has surreptitiously made payment of rent without disclosing the month for which he had tendered the rent and even manipulations/erasures have been made so thatcould not be known. The default came to light when the landlord made application for the refund of the rent and came to know that some rent has been tendered without mentioning the period for which it relates. I such circumstances mere delay in the assertion of the right would not defeat it.
Without knowledge of the right there can be no waiver. When a tenant deposits monthly rent no notice is issued to the landlord either by him or the Court. No duty is cast under the law on the landlord to enquire every month whether the tenant is depositing the rent or not, therefore, whenever the landlord acquires knowledge of the default he can, during the pendency of the proceedings, make the application, for no time has been prescribed for making an application under section 13(6) of the Ordinance for striking off the defence of the tenant. Knowledge of the right and its intentional) relinquishment are sine qua non to establish a plea of waiver.
The case relied upon by the learned counsel for the appellant does not lay down the principles of general application that if application for striking off the defence is made later, it should be presumed that the landlord has waived the benefit of Clause (6 )of section 13 of the Ordinance. The view taken in PLD 1965 Lab. 11 were considered in PLD 1972 Kar. 278, 1982 CLC 772 and 1982 SCMR 33 and dissented. The Supreme Court of Pakistan in Muhammad Saleh v. Mohammad Shafi (1982 SCMR 33) has held :- "To establish "waiver by conduct" it must be shown firstly that the person entitled to right had knowledge of the breach thereof and secondly that he had acquiesced or failed to notwithstanding that knowledge therefore mere failure to object or to take action due to ignorance of breach of right cannot be said to give rise to any `waiver by conduct'."
5. Now there remain the contentions of the learned counsel that the tenant should have been given opportunity to lead evidence in support of his plea that he has failed because of his illness. The grievance of the learned counsel for the appellant before me was that the tenant/appellant should have been given opportunity to lead evidence. From the record it transpires that after the reply filed on behalf of the tenant the matter was fixed for 11-7-1981 and 25-8-1981 but the tenant neither made his own statement in Court nor examined any witness and when the case was adjourned for orders, the application for bringing on record the medical certificate was made. It has been rightly contended by the counsel appearing for the landlord/ respondent that the stand taken in the reply filed by the tenant to the application dated 10-6-1981 made by the landlord and the subsequent plea was contradictory. In the reply the tenant has said: "In fact the respondent was seriously ill and had undergone an operation with the result that delay of two or three days had occurred", and the medical certificate enclosed with the later application disclosed that Mohammad Yaqoob was an O.P.D. Patient up to 26-7-1980 and was admitted in Hospital on 18-8-1980. What was his condition up to 26-7-1980 was not proved. I am therefore constrained to hold that the plea of illness is not bona fide, "an afterthought inasmuch as it was not put forward before the Controller when he had sought permission for depositing of rent on 17-7-1980. In the circumstances of the case he was not entitled to indulgence by the Controller as he had not come with clean hands. Besides the plea of illness could not advance his case. A Division Bench of this Court in Abdul Majeed v. Saadullah (PLD 1963 Quetta 16) has observed at page 20: "But to entitle- the tenant to a condonation it seems imperative that be must without any avoidable loss of time offer to make good the payment, explaining at the same time the circumstances for the delay. In the present case however, even accepting the allegations of the appellant regarding his illness, we have no hesitation in holding that the default on his part was negligent if not willful. If he had really fallen ill it should not have made him forget his obligation in respect of the case that he was fighting against the landlords to retain possession of the disputed premises and if he was prevented from attending the Courthimself to deposit the arrears as directed by the Controller on the due date, he could easily have commissioned someone to do so.
He could have easily got in touch with his counsel for the purpose."
This D. B. Judgment of this Court was followed in PLJ 1974 Karl. 2 and 1982 CLC 859. A case on all force is found in Pir Inayat Shah v. Agha Muhammad (1982 SCMR 1195). Mr. Justice Mushtaq Hussain (as he then was) who wrote the judgment for the Bench has observed :- "The, tenant failed to deposit the rent. He however, neither brought these defaults to the notice of the Court nor did he ask for condonation of the delay when the landlord applied for of the defence of the tenant he explained the default on the ground of illness which was duly brushed aside by the Rent Controller and the appellate Court."
4. It has been urged before us that the failure to deposit rent was on account of illness, a circumstance which was not under the petitioner's control. This is an untenable excuse since the petitioner was not required by law to go to deposit the rent personally and any member of the family or a servant could have gone and performed this duty."
The circumstances relied upon were/duly considered by the Rent Controller and he came to the conclusion that they were not, of a nature which could prevent the appellant from complying with the orders of deposit of rent. Even if the contention as contained in the reply is accepted at its face value, it does not establish the illness was of such a nature which prevented him to go or contact his lawyer. Even if 1 were to examine the circumstances, I would have come to the same conclusion that the circumstances were not such as to prevent the appellant from depositing the rent by the due date. In other words this is not a case where it can be said that there was no default within the meaning of law. The Supreme Court of Pakistan in Ghulam Muhammad Khan Lundkhor v. Safdar Ali PLD1967SC530, has held about the consequences of default as follows : "Having regard to the language of this subsection we find it difficult to accept that the Legislature intended to leave it to the discretion of the Rent Controller to decide whether he would or would not in a given case enforce the default clause. The Legislature itself having provided for the consequence of a default has used mandatory words to direct the Rent Controller to enforce the consequence. The object of this subsection is not so much to afford the landlord an expeditious method of realising the rent but rather to protect a tenant who is mindful of his obligation from eviction. In interpreting the provisions of Ordinance it must not be overlooked that the provisions thereof purport not only to curtail seriously the rights that a landlord enjoys under the general law, as contained in the Transfer of Property Act, of evicting a tenant by merely serving upon him a notice to quit but also to co-relatively give special benefits and protections to tenants under certain conditions. Upon general principles, therefore, where a statute grants a privilege upon certain conditions the person seeking the privilege must show that he has strictly complied with those conditions. Unless those conditions are strictly fulfilled the privilege will not be available or the other party deprived of his rights under the law (vide Maxwell, page 285, 11th Edition)."
As a result I find that the defence was rightly struck off and no justification is made out for interference, in appeal. The appeal has no merits and is accordingly dismissed with costs throughout. Since there is scarcity of houses in the Town. I allow the appellant 2 months" time to vacate the house.
S. A. H.