1. ' The appellant is a tenant in respect of a shop on Plot No, 3-G-12/1 Nazimabad. The respondent filed an ejectment application against the appellant on the ground of reconstruction of the building and default in payment of rent. The appellant denied the respondent's claim. On 12th November, 1976 the learned Controller passed an order for deposit of rent in the following terms :- "Hence I direct the opponent to deposit the amount of Rs, 15 for the rent of February, 1977. The opponent is further directed to deposit the rent for March, 1977 in Court in this case at rate of Rs, 60 p. m. Before the 15th of April, 1977. The opponent is further directed to deposit the future rent at the rate of Rs, 60 p. m. Before 15th of each following months in this case. The deposit made in Miscellaneous Rent Case No, 2179/76 be transferred to this case."
2. ' The respondent filed an application on 24th May, 1977 under section 13(6) of West Pakistan Urban Rent Restriction Ordinance for striking off the defence of the appellant on the ground that the rent order has not been complied with. This application was granted on 30th September, 1978. However, an appeal filed against that order was allowed on 17th May, 1979. On 3rd March, 1980 the respondent filed another application for striking off the defence on the ground that the appellant has made default in deposit of rent for June, 1977 and for the month from August, 1977 to June, 1978 within the time prescribed by the rent order. The appellant pleaded that due to harassment and confusion created by the attorney of the respondent and disturbance in the city he forgot that no rent was deposited by him from 20th May, 1977 until 7th August, 19 77 with the consequence that the rent for the month of June, 1977 which ought to have been deposited before 15th July, 1977 was not made". The appellant has further stated that when he deposited Rs, 120 on 8th August, 1977 he was labouring under the impression that he had already deposited the rent for the month of June, 1977, and treated this deposit towards the rent for the months of July and August, 1977. From the statement of account it is clear that the appellant deposited Rs, 120 on 8th August, 1977 thereafter till October, 1978 rent was deposited @ Rs, 60 p. m. Within the prescribed time. Thereafter, it seems that he started depositing rent in advance for two months or three months and sometimes even for four months. All these payments would be in time if Rs, 120 deposited in August, 1977 are treated towards rent for July, and August. However, if it is treated towards the month of June and July, then there is a clear default in all the subsequent months as claimed by the respondent. The learned counsel for the appellant has further con- tended that the calculation made by the Controller is erroneous as the appellant did not deposit the rent for the month of June, 1977 but thereafter, he has been continuously and regularly depositing the rent within the prescribed time.
3. ' Mr. Ishaq Shams the learned counsel for the respondent contended that unless rent for earlier month has not been deposited the payment of subsequent months will not be legal. In this regard the learned counsel has relied on Amanat Khan v. Begum Jan (1). In that case the tenant had failed to pay rent for the period from August to December, 1974. He later tendered rent for January, 1975 to June, 1975. He further claimed adjustment of the unpaid rent towards repair charges but failed to prove it. It was held that "even upto date the rent for the period in question was neither tendered nor paid to the landlord and this default on his part was wilful and contumacious. A fortiori the rent remitted for the subsequent period from January, 1975 to June, 1975 by money order in July, 1975 did not amount to valid tendered rent without having cleared the arrears due from August, 1974 to December, 1974."
4. ' This observation was made in respect of rent payable by a tenant to the landlord directly and not with regard to deposit of rent made under the order of Controller. If the tenant defaults in depositing the rent for a particular month on the date fixed by the Controller, but thereafter when the rent
(1) 1979 SCMR 608 ' for the succeeding month falls due he deposits the rent within time, then it cannot be presumed, unless the circumstances warrant such a conclusion, that such deposit has to be adjusted towards the rent for the month in respect of which default has been committed. The possibility is always there the tenant may have defaulted to deposit rent for a particular month but without realising it and unmindful of such default, continues to deposit for the subsequent months regularly. If under such impression he continues to deposit regularly thereafter, then the default will be only for one month. However, if the rent deposited during subsequent month is adjusted in respect of the month for which the default has been committed, then there will be successive defaults in all the subsequent months although the tenant has regularly deposited without realising that he has defaulted in an earlier month. The explanation offered by the appellant cannot be ruled out because having defaulted to deposit the rent for the month of June, 1977 he continued to deposit the rent regularly and when he realised the default, he deposited three months rent on 31st October, 1978 which covered the rent for October, November, 1978 and June, 1977. The subsequent deposits support such calculation. Where such a situation arises, then, unless the deposit made after the default is intended to be first adjusted towards the rent in respect of which default has been committed, the benefit should be given to the tenant and he should not be subjected to successive defautls.
5. ' Mr. Rashiduddin the learned counsel for the appellant has contended that due to the disturbance in the city during June, 1977 the appellant was not able to deposit the rent. The Courts have taken judicial notice of the disturbances during the year, 1977 but there can be no presumption of general nature that during the whole year there had been such disturbances that the entire life in the city had paralysed. At least some specific dates with particulars of incidents should be mentioned.
6. Mere allegation that there were disturbances during the year 1977 by itself is not sufficient. If the appellant would have deposited the rent after some reasonable delay, then possibly subject to proof, it could have been a strong argument that due to disturbances he was unable to deposit the rent within time fixed by the Controller. But presently the appellant has pleaded that he had completely forgotten to deposit the rent for June, 1977. This plea does not have any relation with the disturbances because the appellant had forgotten to deposit and was not prevented by disturbances from depositing the rent. The plea of forgetting to deposit the rent cannot justify the default. This is not the appellant's case that due to some disease he had temporarily lost his memory and did not deposit the rent. On the plea taken by the appellant the default stand admitted and proved.
7. The learned counsel for the appellant contended that as the respondent filed application for striking off the defence in respect of the default committed for the month of June, 1977 on 3rd March, 1980 he should be deemed to have waived the right to object to it. In the present case the appellant had not paid the rent for the month of June, in due time, but on 31st October, 1978 he deposited Rs, 180 which can be adjusted towards1 the rent for October, November, 1978 and June, 1977 in the previous months deposits were made regularly. The respondent withdraw the amount from Court on 21st October, 1978. The question arises whether in the circumstances, the default has been waived. From July, 1977 when the rent for June, ought to have been deposited the respondent did not raise any objection. The learned counsel for the appellant has relied on. Masood Hassan v.
8. Muhammad Saeed Khan (1), where the landlord did not take objection to the default for more than one year, it was held to have been waived. Referring to various authorities it has been held that "the provision contained in clause (6) of section 13 by all means deal with private rights intended to mean for the benefit of the landlord only and on general principle their application may be waived by them". It was further held that "by his failure to bring the default to the notice of the Court for a period of one year the landlord should be deemed to have waived his right to object in this behalf.
9. In S. Y. Muhajir v. Mst. Aisha Jamal (2) where application for striking off the defence for default in payment of rent was filed after two years, the right to object was held to have been waived. In Muhammad Shafi v. Allah Ditta (3) a delay of 5 to 6 months in bringing to the notice of the Rent Controller the default committed by the tenant was not considered to be waiver by the landlord mainly because he was a blind person and was persistently pursuing his application against the tenant. In Muhammad Bux etc. v. Abdul Majeed (4) where the landlord was an old man of 80 years and had submitted his application against the tenant for striking off his defence within three months of the default having been committed, it was held that it did not constitute waiver. In S. I. H.
10. Zaidi v. M. Shujaat Usman (5) where the landlord applied for striking off the defence within five weeks of the default, it was held that this delay will not amount to waiver.
11. In Jalal Din v. Azizuddin (6) after the order for deposit of rent was passed the landlord accepted the rent directly from the tenant but no application for striking off defence was filed. However, in argument the landlords counsel contended that the defence should be struck off under section 13(6). This contention was repelled but the first appellate Court struck off the defence. In Second Appeal it was observed that the conduct of the respondents in receiving rent from the appellants during the pendency of the case was also pleaded as estoppel against them.
12. "Of course there can be no estoppel against the provisions of a statute, but there is considerable force on the contention that as the provisions of section 13(6) of the Ordinance are for the benefit of the landlord, on general principle their application may be waived by them."
13. The observations made by Zafar Hussain Mirza, in Muhammad Ahmad v. Qamar Anwar Shaikh (7) may be of some relevance. In this case rent in arrears were accepted by the landlord for which default had been committed and on the basis of which ejectment was sought. It was contended that by accepting accumulated rent for more than 38 months and in accepting the rent thereafter for more than a year, the landlord has waived the E default. While distinguishing this case on facts with Masood Hussain's case it was observed that it is not more acceptance of rent but circumstances which were enumerated clearly shows the conduct on the part of the landlord/respondent leading to the inference that she had knowingly relinquished her right to eject the appellant. It was further held, "the term `waiver'I implies the intentional relinquishment of a known right after knowledge of
(1) PLD 1965 Lab. 11 (2) PLD 1983 Kar. 489
(3) PLD 1966 Kar. 523 (4) 1983 CLC 2555
(5) PLD 1980 Lah. 158 (6) PLD 1963 Lah. 436
(7) 1980 CLC 664 ' necessarily, therefore, assume the existence of an opportunity for choice between the relinquishment and the enforcement of the right."
14. In none of the aforestated cases decided after 1972 the case of Bachi Bai v. Ghulam Abbas (I) has been noticed. Dorab Patel, I. While dissenting from Masood Hussain's case observed, "as I have pointed out earlier, a litigant's conduct might amount to waiver when it is coupled with an estoppel.
15. But I do not see how a landlord's delay in asserting his remedies under subsection (6) can possibly create an estoppel or amount to election which is but another form of estoppel". In Masood Hussain's case reliance was placed on Vellayan Chettiar v. Government of the Province of Madras
(2) where it was held that the Government could waive its immunit under section 80, C. P. C. And that waiver could be inferred from the circumstances. In Bachi Bai's case while referring to the Privy Council case it was pointed out that "in such cases waiver arises, not because of inaction by the aefendant but because the provisions of the Civil Procedure imposed a duty not to be silent. It is only because of this obligation not to be silent that the failure of a Government to plead its immunity under section 80 amounts to waiver. This principle can be extended to subsection (6) only if it is expressly or impliedly imposes a duty on the landlord to take action and not to remain silent when a tenant has failed to comply with an order for deposit of rent". After examining the provision of subsection (6) the learned Judge observed. 'In my humble opinion, the subsection does not impose any duty on the landlord not to be silent, therefore, it does not lend any support to the view that a landlord's delay in asserting his remedy under this subsection would by itself amount to delay, therefore, H with great respect, I am not able to follow the view taken in "Syed Masood Hussain's case". And further that withdrawal of rent after the tenant's default will not, by itself, amount to waiver or lead to an estoppel or election.
16. Subsection (6) of section 13 provides a summary remedy to a landlord if the tenant defaults to deposit the rent or arrears in terms of the order passed by the Controller. It has consistently been held that the defence will not be struck off unless the default is wilful. I When any default is alleged the Controller should give notice and opportunity to the tenant to prove the circumstances which prevented him from depositing the rent. According to rule laid down in Ghulam Muhammad Khan Lundkhor v. Safdar All (3) default under subsection (6) which is avoidable cannot be excused. Only defaults which are unavoidable or due to causes beyond the control of the tenant can be condoned or may not %mount to wilful default leading to striking off th defence. It, therefore, follows that unless allegation of default has been.j made by the landlord the tenant cannot come forward to explain the reasons for non-compliance. Nor will the Controller embark upon an inquiry to determine whether any default has been committed and if so is it excusable. Such an inquiry is possible only in cases where the landlord agitates the controversy before the Controller. In these circumstances if the landlord wants to press in service the provisions of subsection (6) he should file application seeking relief under it. In my humble opinion in
(1) PLD 1972 Kar. 278 (2) PLD 1947 P C 160
(3) PLD 1967 SC 530 ' such circumstances (if I may say so with respect to the view expressed in Bachi Bai's case) there is an implied duty on the landlord to file such an application and not to remain silent over the matter.
17. Subsection (6) provides a remedy to a landlord and unless he makes out a case of default Controller can grant that relief. Considering the matter from this point of view there can be no doubt that failure of the landlord not to make an application for striking off the defence for unreasonably long period will amount to waiver.
18. From a perusal of these authorities it seems that where the delay in bringing the default to the notice of the Controller is for a period of one year or more. The Courts have treated such delay as waiver on the part of the landlord to object to the default. Where the landlord withdraws the money and does not apply for striking off the defence for sufficiently long period such delay will also constitute waiver. In the present case according to the appellant, the first default was committed in respect of the month of June, 1977 and the application under section 13(6) was filed on 3rd March, 1980 i. e. Almost after two years and about 9 months and in between the respondent had withdrawn the money as stated above. This delay will constitute waiver.
19. ' The impugned order is set aside and the appeal is allowed.