' This is an appeal against the order, dated 27-5-1981, passed by the learned Senior Civil Judge and Rent Controller, Moro, in Rent Application No,34 of 1981, ordering the ejectment of the appellants from the tenement in question. The brief facts leading to the filing of the above appeal are that the property in question was transferred by the Settlement Department under a P.T.D., dated 17-7-1969 to the respondent. Upon the transfer of the above property, the respondent served a notice, dated 3-8-1971 under section 30 of the Displaced Persons (Compensation & Rehabilitation) Act, 1958 Exh.27. It seems that in spite of the service of the above notice, no rent was tendered by the late Demands, (who expired in or -about 1972-73) or by the appellants, who are successors in interest of late Demands. The respondent filed the above rent case on 25-9-1978 for ejectment against the appellants on 3 grounds, namely, default, causing damage to the property and personal requirement. The above application was resisted by the appellants. The learned Rent Controller on the basis of the pleadings of the parties framed the following 6 issues:-
(1) Whether there exists relationship as landlord and tenant between the parties?
(2) Whether notice under section 30 of the D.P. Act was served upon deceased Demands, whether it is illegal on account of demand of excessive rent, if so what is its effect?
(3) Whether opponents have committed default in payment of rent?
(4) Whether opponents have damaged the disputed house and impaired its utility?
(5) Whether disputed house is required by the applicant for his own use?
(6) What should the order be?
2. In support of the application respondent filed affidavit of her husband and attorney Muhammad Usman Exh.19 and affidavits of Muhammad Hussain and Ellahi Bux, Exhs. 22 and 23 respectively. The respondent also filed a copy of the above notice, dated 3-8-1971, under section 30 of the Displaced Persons (Compensation & Rehabilitation) Act, 1958 Exh.27 and the delivery receipt Exh.28. On the other hand appellant No,1 filed his affidavit Exh.34 alongwith the money orders slips Exhs.36 to 49 and also affidavit of one Aslam Exh.35. The learned Rent Controller after hearing the parties allowed the rent application on two grounds, namely, default and personal requirement, but rejected the 3rd ground. The appellants being aggrieved by the above order have filed the present appeal.
3(a) In support of the above appeal Mr. Naraindas, learned counsel for the appellant has contended as follows:-
(i) That the personal requirement has not been proved.
(ii) That there was waiver of the default on the part of the respondent, and, therefore, the learned Rent Controller's finding on the above ground is not sustainable.
(b) On the other hand Mr. Sardar Akbar F. Ujjan, learned counsel for the respondent has urged as under:-
(i) That the personal requirement stands proved.
(ii) That there was no plea of waiver raised by the appellant before the learned Rent Controller.
(iii) That there was in fact no waiver.
3.Adverting to the question of personal requirement, it may be observed that the respondent in para.9 of the rent application as well as in the affidavit of evidence has made the averment that the premises were required by her for personal requirement. She has not stated, as to whether she is residing in her own house nor she has stated whether the accommodation in her occupation was insufficient nor she has given the number of the members of family. I am, therefore, inclined to hold that the learned Rent Controller's finding on the question of personal requirement is not sustainable as there is not sufficient material on record to hold that the respondent has been able to prove bona fide personal requirement.
4.(a) As regards the default, it may be observed that the appellants have admitted the receipt of the notice dated 3-8-1971 Exh.27 and its acknowledgment receipt Exh.28. It is an admitted position that in spite of the receipt of the above notice no rent was tendered either by deceased Dewandas or by the appellants after his death in 1972-73. The first money order was sent on 12-3-1978 after the expiry of several years, which was refused by the respondent.
It may be stated that it is true that the appellants have not raised any plea of waiver in their written statement nor the same was raised during the argument before the learned Rent Controller and, therefore, there is no reference to the above plea in the order under appeal. In this regard, it may be observed that it is a well-settled principle of law that a plea of waiver or estoppel is to be expressly pleaded. However, it has been urged by Mr. Naraindas, learned counsel for the appellants that the plea of waiver being a legal plea which can be spelt out from the evidence on record, the same can be raised even at the first appellate stage. It may be pointed out that a plea of waiver is a mixed question of fact and law, and, therefore, it should be raised before the first Court. Be that as it may, I have examined the above plea on merits and find that there is substance in it.
(b) Mr. Naraindas in support of the above plea has referred to the following cases:-
(i) Haji Dawood v. Mst. Rahima Bai and another PLD 1980 Kar.
126. In the above case a learned Single Judge of this Court maintained the concurrent finding of the two Courts below to the effect that there was waiver on the part of the landlord as he impliedly permitted the subletting of the premises.
(ii) Muhammad Younus v. Dr. S. Muzammil Ali, 1981 CLC 327, in which I have held that if a landlord after commission of default continues to accept rent without any protest and does not take ejectment proceedings within a reasonable time, presumption arises as to the landlord having waived such default.
(iii) Messrs Badruddin H. Mavani v. Government of Pakistan, Ministry of Food and another, 1981 C L339. In the above case a D.B. of this Court while considering the question of waiver in relation to certain contract for export of rice held that the waiver, abandonment, or lapsing of a right legally capable of being waived, abandoned or lapsed may either be expressly waived by the persons concerned or may be inferred from his conduct and all other attending circumstances of the case.
(iv) Najmuddin v. Zamir Ahmad, PLD 1982 Kar. 188, in which a learned Single Judge of this Court while dealing with the question of sub-letting observed that though under section 13(2)(i) and (a), no period of limitation is provided for filing of an ejectment case, but if a landlord in spite of the violation of the above provision and in spite of the knowledge of violation sleeps over his right and/or does not enforce his right and does not take advantage or benefit conferred on him by law, principle of acquiescence or waiver will come into operation.
(v) Muhammad Ahmad v. MRs, Qamar Anwar Shaikh, 1980 CLC 664, in which a learned Single Judge of this Court while dealing with the question of sub-letting observed that the waiver implies the intentional relinquishment of a known right after knowledge of the facts. In the above case in spite of the knowledge of sub-letting for about 3 years no ejectment proceedings.
(c) In the present case the default is continuous from 1971 onwards after receipt of a notice under section 30 of the Displaced Persons (Compensation & Rehabilitation) Act, 1958 till the filing of the rent case in 1978. In other words, the default was recurring month to month till the filing of the case.
It is an admitted position that at no point of time the respondent accepted any rent from the appellants' predecessor-in-interest or from the appellants after the commission of above defaults, and, therefore, the question of waiver does not arise on the proved facts. In this view of the matter the cases relied upon by Mr. Naraindas cannot be pressed into service in which the landlords in spite of the knowledge of the breach on the part of the tenants warranting ejectment of the tenants continued to accept rent for a number of years without any protest or reservation. It may be pertinent to take up an example in order to understand in what circumstances a plea of waiver can be pressed into service. Say, if a tenant commits a default for the months of August and September, 1984, the landlord accepts the rent for the above months and continues to accept rent without any protest or reservation, say up to 1987. In 1988 the landlord will not be entitled to file a case for ejectment on the ground of default for the above months of August and September, 1984 as the plea of waiver will be available to the tenant. But in the instant case this is not the situation as pointed out hereinabove. The above appeal has no merits, and, therefore, it is dismissed with no order as to costs. However, I allow months' time to the appellant to handover the vacant possession on the condition that in case the appellants fail to handover the vacant possession on the expiry of the above period of 4 months, the learned Rent Controller shall issue a writ of ejectment without any further notice to the appellant.