1. ' This First Rent Appeal under section 21 of the Sind Rented Premises ordinance, 1979 (hereinafter called the Ordinance), is directed against the order dated 13-5-1980, passed by the III Rent Controller, Karachi, in Rent Case No, 3851 of 1975, whereby the defence of the appellant has been struck off and he has been directed to put the respondents into vacant possession of the disputed premises.
2. ' The facts giving rise to this appeal briefly stated, are as follows : The respondents filed an application under section 13 of the then Sind Urban Rent Restriction Ordinance, 1959, for eviction of the Appellant on the ground of default in payment of rent for the month of January, 1975 to February, 1976 and the gas and electricity bills, and bona fide requirement of the premises for personal use and occupation.
3. ' On 9-7-1976, the Controller passed tentative order of deposit of rent directing the appellant to deposit arrears of rent from January, 1976 to June, 1976, at the rate of Rs, 400 per month for 18 months amounting to Rs, 7,200 minus the amount paid in Court within 40 days from the date of the order. By the aforesaid order he further directed the appellant to continue to deposit future rent at the same rate before 15th of every month. Thereafter, on 9-1-1980, the respondents filed an application under section 16(2) of the Ordinance for striking off the defence of the appellant on the ground that the rent for the month of May, 1979 was not paid within the due date as per report of the Nazir dated 3-1-1980.
4. ' The appellant filed objections to this application stating that he was depositing monthly rent very regularly every month in advance alongwith the other charges and that the rent for the month of May, 1979, had been deposited in advance on 10-5-1979, by him, and therefore, the allegation of committing default for this month was false on the face of it.
5. ' However, subsequently the parties filed written arguments and in the written argument the appellant took the stand that in compliance with the tentative rent order dated 9-7-1976, the opponent was depositing monthly rent regularly and he had also deposited the rent for the month of May, 1979 on 2-7-1979, as June, 1979, was the month for vacation and the Nazarat was not accepting the rent during that month and, therefore, the opponent on the first opening day of the Court i,e. On 2-7-1979, deposited the rent for the month of May, 1979. He annexed alongwith the written arguments photostat copy of the rent receipt issued by the Nazarat for the month of May, 1979, dated 2-7-1979, marked as Annexure "A".
6. ' The Controller by the order dated 13-5-1980, impugned in this appeal, struck off the defence of the appellant and directed him to hand over vacant possession of the house to the applicant within two months of the order. He has stated that he had gone through the Nazir's report and the written arguments filed by the learned counsel for the parties, and that the appellant had admitted default in the deposit of rent for the month of May, 1979, in the written arguments but he had explained that since during the month of June, 1979, there was Summer Vacation, therefore, he deposited the rent on 2-7-1979. The Controller found that this explanation had no force.
7. ' Aggrieved by this order the appellant has come up in this appeal under section 21 of the Ordinance as stated hereinbefore.
8. ' I have beard Mr. Mirza Said Baig, learned counsel for the appellant and Mr. Talmiz Burney, learned counsel for the respondents.
9. ' The learned counsel for the appellant submitted (1) that the deposit of rent on 2-7-1979, was in accordance with law as civil Courts at Karachi were closed during the month of June due to Summer Vacation, (2) that the default, if any, was waived by the respondents; (3) that no opportunity to lead evidence to prove that the default was not wilful, was afforded to the appellant by the Controller.
10. ' In support of the first submission the learned counsel for the appellant relied on Ghulam Muhammad Khan Lundkhor v. Safdar Ali, Visumal Chatumal Khilnani v. Ali Bakhsh and others, Muhammad Ishaq v. Abdul Hague and another and Moinul Hague G. Shaikh v. Mst. Zulekha and 4 others.
11. ' In support of the second submission the learned counsel for the appellant relied on; Syed Masood Hussain and others v. Muhammad Saeed Khan anal others, and in support of third submission the learned counsel for the appellant relied on Syed Toghan Shah v. Shah Muhammad Madani Abbas and Syed Muhammad Akram Shah v. Ch. Ghulam Nabi.
12. ' In reply Mr. Talmiz Burney, the learned counsel for the responden submitted that the appellant's case in the first instance was that he ha deposited the rent for the month of May, 1974 in advance, the plea that re for the month of May could not be deposited during Summer Vacatio of the civil Courts at Karachi besides being incorrect, was an afterthough He further submitted that there was in any case no explanation as t why rent for May could not be deposited on 1-7-1979, when Cour- re-opened after Summer Vacation and he heavily relied on Fahim Ansari Kalim Qamar Shaikh.
13. ' Now, so far as the first submission of Mr. Baig is concerned that the appellant had not made any default in deposit of rent for the month o May, 1979, it is admitted at the Bar that the rent for the month of May 1979 according to the order of the Controller, had to be deposited before 15-6-1979, and the case of the appellant in the objections dated 27-1-1981 filed to the application under section 13(6) of the Ordinance, was that h had deposited the rent in advance on 10-5-1979, which he changed in th written arguments filed after about two and a half months on 16-4-1982, b' stating that :1 2 3 4 5 6 7 8 "He is also deposited the rent for the month of May, 1979, on 2-7-197 as the June, 1979 was the month for vacation and the Nazir was no accepting rent during that month and, therefore, the opponent on th 1st opening day i,e, 2nd July, deposited the rent for the month o May, 1979."
14. ' This is quite contrary to the earlier stand. Further, no affidavit was file in support of the allegation, nor has any application made for summoning any witnesses to support the plea, or otherwise, any evidence produced However, Mr. Baig submitted that the rent for the month of May during, the last 5 years was always deposited by the appellant on the re-open in of the Court on second of June.
15. This may be so but from the statement of rent account filed by the learned counsel for the appellant before the. Controller which is available at pages 83-85 of the original record, I appears that a sum of Rs, 90 was deposited on account of electricity charge on 14-6-1978, which fact leads to the conclusion that rent amount could be deposited during the month of June. In any case, the civil Court in Karachi re-opened on 1st July, 1979, and there is no explanation as t. Why rent was not deposited on 1st July, 1979.
16. ' Now, taking up the cases cited by the learned counsel for the appellant in support of the first submission, 1 may first refer to Ghulam Muhamma' Khan Lundkhor's case. In this case Mr. Baig referred to two passages a page 538. The first . Passage contains the principle that it is necessary for the Court to decide in each case as to whether there has, in fact, been a default] and the second passage the meaning to be given to the word "default" used in subsection (6) of section 13 of the Ordinance. It is further observed that this much can safely be said that it cannot possibly excuse non-compliaace which is avoidable. Applying this test to the present case, if Nazarat wa 'open and receiving rent during the month of June, or on 1st July, then non-deposit of rent before 15th June, could not possibly be excused.
17. ' In case of Visumal Chatumal Khilnani the rent was not deposited on the !Presumption that the same will not be accepted during the vacation. In case of Muhammad Ishaq it was pleaded that the appellant had ona fide believed that since during the month of June Civil Courts at Hyderabad had remained on vacation he could deposit the rent before 15th tine, and this statement of belief was not controverted by filing any counterffidavit. It will be seen that in the present case it is not the case of the appellant that he had believed that rent for the month of May would not e accepted due to vacation during the month of July. Indeed his assertion n the first instance, as already stated, was that he had deposited the rent in advance and there is evidence that a sum of Rs, 90 was deposited by him on account of electricity charges in the month of June, 1978. Therefore, he could not have assumed or even formed any such belief that the rent of May could not be accepted in June.
18. ' In the case of Moinul Haque G. Shaikh, Fakhruddin G. Ebrahim, J. Relying on Visumal and Muhammad Ishaq's cases, held that the tenant was entitled to assume that because of the closure of Court rent would not be accepted during the vacation, and default was not committed in the circumstances of the case.
19. ' The cases relied upon in this case are distinguishable on facts from the present case as in the present appellant himself had deposited a sum of Rs, 90 in the month of June, 1978 in Court, therefore, he could not have made any such assumption. Nor was his case one of the assumption but was that of definite assertion and that too as an afterthought.
20. ' Indeed the case cited by Mr. Talmiz Burney, learned counsel for the respondent, namely Fahim Ansari v. Kalim Qamar Shaikh is quite nearer to the facts of the present case.
21. ' In the case of Fahim Ansari Sajjad Ali Shah, J. Referred to an unreported Judgment of Z. A. Channa, J. In Second Appeal No, 115 of 1973 in which the plea taken by the tenant against the default was very much same as in the case before him, and as urged in the case now under consideration. In the Second Appeal the learned Judge examined the Nazir and came to the conclusion that even9 during the vacation the office of the Nazir was open and the rent cculd be deposited in the Court in compliance with the tentative rent order and such plea was not available to the tenant. I may here quote for convenience sake the whole paragraph from the Judgment in Fahim Ansari's case which contains the submission of the counsel in that case as well as the observations of Sajjad All Shah, J.
22. It reads : "Mr. Iqbal Kazi counsel for the respondent contended that it is obvious from the evidence of Nazir that in spite of the fact that there was vacation in the District Court in the month of June,' but office of the Nazir always remained open and the rents were being accepted for deposits as per tentative rent orders and the tenant in this case has committed default for not depositing the rent in the month of June, 1978 before 15th of that month as stipulated in the tentative rent order, when according to the evidence of the, Nazir in that month from lst to 4th rents were deposited in as many as 3,268 cases. In these circumstances the finding of the learned Additional District Judge that plea was available to tenant that he could not deposit the rent in the month of June, for the reason that the Court was closed because of winter vacation, is not sustainable for the reason that even if there was vacation in the civil Court. The office of the Nazir was open and the rents were being accepted for deposits in compliance of the tentative rent orders as has been testified by the Nazir who had brought the register. So far the default in the payment of rent on 1st July, 1978, is concerned, the plea of the tenant is that he offered to deposit the rent on that day but his request was declined by the office of the Nazir is not substantiated and there is no evidence on the record to show that any such offer was made by the tenant on that day it was declined by the office of the Nazir. It appears that purposely no such question was suggested to the Nazir, when he was being examined in this Court by the counsel for the appellant because he would have replied in the negative. It is submitted by Mr. Iqbal Kazi that even if the tenant assumed that he was not liable to deposit rent during the vacation then on 1st July, 1978, which is the opening day of the Court, it was incumbent upon him to have made sincere efforts for deposit of rent and if the office of the Nazir was not prepared to do so, he should have gone to the Rent Controller to obtain the order or permission to deposit the rent as the Nazir has testified in clear terms that even on 1st July, in emergency rents are accepted for deposits if such orders are obtained from the Rent Controller and produced in the office. In these circumstances since there is nothing on the record that this was done by the tenant, there appears no plausible explanation for not depositing the rent before 15th of June, 1978, as well as for not depositing the rent on 1st July, 1978. In support of the contention that the rent could be deposited even during the month of vacation for the reason that office of the Nazir is always upon to accept such rents in compliance with tentative rent orders, the learned counsel for the respondent has drawn my attention to the Judgment of this Court dated 13-9-1978 of my learned brother Z. A.
23. Channa, J. (as he then was) in Second Appeal No, 115/73 in which the plea taken by the tenant against the default was very much same as in the case. In that case the learned Judge examined the Nazir and came to the conclusion that even during the vacation the office of the Nazir is open and the rent could be deposited in the Court in compliance with the tentative rent order and such plea is not available to the tenant. In the result the learned Judge was pleased to dismiss second appeal filed by the tenant. Mr. Iqbal Kazi has further submitted that against the judgment petition for special leave to appeal was filed in the Supreme Ccurt in Appeal No, K-214/78 which was dismissed by the order of the Supreme Court dated 4-4-1979, and copy of that order has also been produced before me which is on the record. In these circumstances I find no force in the contention of the learned counsel for the appellant that the tenant could not deposit rent for the month of May, 1978, before 15th of June, 1978 for the reason that month of June, 1978 was vacation and subsequently after re-opening of the Court it could not be deposited on 1st July, 1978, for the reason that it was a bank holiday and the office of the Nazir declined to accept the same. On the other hand there is sufficient evidence on the record to show that even during the vacation rent could be deposited because the office of the Nazir is open and accepts the deposit of rent in compliance with the tentative rent order and even on 1st July, the rents can be accepted if such orders are obtained from the Rent Controller."
24. Therefore, I am of the view that the Controller was right in holding that the default was wilful.
25. ' Now, taking up the second submission that the respondents had waived the default, it was submitted by Mr. Baig that the respondent had afterwards withdrawn the rent and, therefore, must have come to know of the default. Consequently, he must be deemed to have waived the default.
26. However, I find from the record that the application for striking off the defence due to default in payment of rent for the month of May, 1979, was made on 9-1-1980, and from May, 1979 to 9-1-1980, no application for withdrawal of the rent was made by the respondent and, therefore, it cannot be said that the appellant had knowledge of default. Indeed the respondent had filed an application for withdrawal of rent on 19-1-1980, on which order was passed on 14-2-1980, but it was much after the respondent had filed application for striking off the defence of the appellant. In these circumstances there could not be any question of waiver. I have dealt with the question of waiver in great detail in M. A. Yahya v. Nawab Abdul Malik Estates Ltd., and has quoted a passage from "the Principle & Digest of Law of Evidence", by Munir, 1969 Edition (Printed in Pakistan), page 359, which reads as follows :- "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."
27. ' I have also referred therein to the case of Riaz & Kandawalla Ltd., Karachi v. Trading Corporation of Pakistan, Karachi, wherein it was observed by Zafar Hussain Mirza, J. At page 306 of the report as follows - "Even, otherwise waiver arises by the intentional relinquishment of a known-right, claim or privilege.
28. In other words the term implies the intentional relinquishment of a known-right after knowledge of the facts. It implies the intentional forbearance to enforce a right, and necessarily, therefore, assumes the existence of an opportunity for choice between the relinquishment and the enforcement of the right."
29. ' And I have not agreed with the case of Syed Masood Hussain and others v. Muhammad Saeed Khan and others, to which reference was made by the learned counsel for the appellant. The reasons of not agreeing with that case are contained in paragaph 18 of my judgment in M. A.
30. Yahya's case.
31. Now, taking up the last point that no opportunity was given for leading any evidence it may be repeated that the case of the appellant was that he had paid rent in advance and non-deposit of rent by the due date was also admitted and that plea was changed only in the written arguments after about 2 and a half months. In any case, if appellant wanted to lead any evidence in support of the new plea he should have applied for summoning ' the Nazir or any other person. Indeed no such ground has been taken in the memorandum of appeal. Therefore, this ground also has no force.
32. ' I, therefore, find no merits in this appeal and dismiss it, leaving the parties to bear their own costs.
33. PLD 1967 SC 530 PLD 1968 Kar. 521 PLD 1978 Kar. 898 1979 CLC 65010 11 1 2 3 4 PLD 1965 Lab. 11 PLD 1964 Pesh. 101 PLD 1967 Lab. 957 PLD 1981 Kar. 231 PLD 1981 Kai.. 231 1982 CLC 772 P L P 1979 Ku. 300