' This appeal is directed against the order dated 22-9-1981, passed by the learned Xth Senior Civil Judge and Rent Controller, Karachi, in Rent Case No.121/78.
2. The relevant facts leading to the filing of the above appeal are that the respondent filed the aforesaid rent application on the grounds of personal requirement and default. The above application was resisted by the appellant.The learned Rent Controller passed a tentative rent order on 30-1-1979, for depositing the arrears of rent for the period commencing from August, 1978 to January, 1979, at Rs.750, per month amounting to Rs.4,500 and the monthly rent for the month of February, 1979 before 15th March, 1979.The respondent filed an application under section 16(2) of the Sind Rented Premises Ordinance, 1979, hereinafter referred to as the Ordinance, on 14-2-1981 for striking off the appellant's defence on the ground that payment of August, 1980 was made three days late without any request for condonation. The learned Rent Control ler sent for Nazir's report and after hearing the parties by his order dated 22-9-1981 ordered the striking off the defence on the ground that the appellant committed default of the tentative rent order. The appellant being aggrieved by the above order has filed the present appeal.
3. Mr.Khalid Latif, the learned counsel for the appellant, has pointed out that against the receipt dated 12-3-1980 bearing No.54800 the appellant had deposited Rs.1,500 and not Rs.750 as mentioned by the Nazir in his report on the back of the respondent's above application under section 16(2) of the Ordinance, and, therefore, there was no default for the month of July, 1980. He has further urged that though there was default as per Nazir's report for the month of June, 1979 but that default was waived by the respondent by not filing an application for striking off the defence immediately on discovering the above default.
' On the other hand, Mr.Haziqul Khairi, the learned counsel for the respondent, after seeing the original receipt dated 12-3-1980, conceded that there was no default for the month of July, 1980.
However, he has contended that admittedly there was default in depositing of the rent for the month of June, 1979, which was deposited admittedly on 16-7-1979 and not upto 14-7-1979. He has further contended that the appellant had not pleaded any waiver either before the learned Rent Controller or before this Court and that even otherwise there was no waiver.
4. Mr.Khalid Latif in support of his above contention has referred to the Nazir's report, dated 18-8- 1979 on the respondent's application dated 15-8-1979 for the withdrawal of rent, which indicates that the rent for the month of June, 1979 was factually deposited on 16-7-1979. On the basis of the above report it has been urged by him that since the respondent had not filed any application for striking off the defence after submission of this report and as the respondent has not even alleged this default in his aforesaid application under section 16(2) of the Ordinance, it amounts to waiver.
It may be observed that the appellant has not raised any plea of waiver before me in his memo. of appeal nor it was raised by him before the learned Rent Controller which is evident from the order under appeal. Since the question of waiver is a mixed question of facts and law in my opinion it is incumbent upon a party to raise such a plea expressly before the first Court unless the investigation on the question of facts is not involved. As the appellant had not raised any such plea either before the learned Rent Controller where it was urged that there was default of the A tentative rent order, even in respect of the month of June, 1979 nor the said plea has been expressly raised before me in the memo. of appeal, I am, therefore, of the view that the appellant is not entitled to raise such a plea during the arguments. However, since the arguments were advanced, I have examined the above plea on merits and I am of the view that it is devoid of any force.
5. Mr.Khalid Latif in support of his above contention has referred to the following cases:-
(i) S.Y.Mohajir v. Mst.Aisha Jamal PLD 1983 Kar. 489, in which case a learned Single Judge of this Court held that since the respondent/ Landlady had filed an application for striking off the defence after the expiry of two years, the above default was waived by her.
(ii) Syed Masood Hussain v. Muhammad Saeed Khan PLD 1965 (W.P.) Lah. 11, in which a learned Single Judge of the Lahore High Court held that non-filing of an application by a landlord for nearly one year after the commission of the default constitutes waiver on the part of the landlord.
(iii) Muhammad Saleh v. Muhammad Shafi 1982 SCMR 33. In the above case the Hon'ble Supreme Court while maiintaining the judgment of the High Court of ejectment dealt with the question of waiver and observed a s follows:- "Reading the abovenoted definition and quotation together it is evident that in order to establish "waiver by conduct" it must be shown, firstly, 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 Vyvyan v. Vyvyan (1861) 30 Beay. . 65, Maxan v. Payne (1873) 8 Ch.App. 881, Federal Supply Company v. Angehrn (1910), 26 T I R 626 (P R.V. !Essex Justice Ex parte Pakistan (1927) 2 KB 475, Dhanukdhari Singh v. Nathuni Sahu 6 C L J 62, Naripati Nath B hattacharjie v. Deekaran Nanji AIR 1924. Bom. 370, Zamorin Raja Avergal vb. Karanawan, AIR 1922 Mad. 290, and lzhat Fatima Bilbi v.
Anwar Fatima Bibi AIR 1939 All.
348.
8. Even of herwise mere inaction or allowing: an opportunity to pass by does not necessarily amount to waiiver because when, for instance , a 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 01. hesitates in going to the Court or for anyother person, the tenar it cannot be allowed to take up the plea that the landlord had, by his conduct in failing to take action, waived his right to receive the rent. It has been held that even gratuitous indulgent e shown by one of the parties does not constitute estoppel if waiver. Omission to enforce one's legal right strictly cannot give rise to an inference th at the right has been abandoned . Reference, may be made to Shahanshah Shah Alam Co-operati ye House Building Society Limited v. House Building Finance C orporation PLD 1972 Kar- 178. In that case the learned Judge observed as follows:- "Inst ead the corporation took a long time to enforce the penal ty 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 possession. So, it was a case of more indulgence shown to the appellants rather than any waiver."
(iv) M.A Yahya v. Nawab Abdul Malik Estates Limited 1982 CLC 772, in which a learn, ed Single Judge of this Court inter alia held that without knowledge of t he right there could be no waiver and that since no time for making application under section 13(6) of the late West Pakistan Urban Rent 1 lestriction Ordinance, 1959, was prescried, the elay in filing of :such tin application by itself cannot amount to waiver.
' Whereas Mr .Haziq ul Khairi has relied upon the following cases:-
(i) S.M. Hamid All v . C.H.Machado PLD 1976 Kar. 817, in which a learned Single dudge of the erstwhile High Court of Sind and Baluchis tan held that a delay of three months in filing of an application under section 13(6) of the late West Pakistan Urban Rent Restriction Ordinance, 1959, does not amount to waiver.
(ii) Mst.Bachi Bai v. Ghulam Abbas PLD 1972 Kar.
278. In the above case it was held by a learned Single Judge of the erstwhile High Court of Sind and Baluchistan that delay by landlord in making an application for striking off the defence of the tenant and withdrawal by the landlord of rent deposited after the delay does not amount to waiver on the part of the landlord. The above Lahore High Court judgment given in the case of Syed Masood Hussain v. Muhammad Saeed Khan PLD 1965 Lah. 11, was dissented from.
(iii) Haji Fazal Karim v. District Judge Lahore. PLD 1982 SC 306. In the above case the facts were that the order of striking off the defence by the Rent Controller was challenged through a writ petition which was dismissed by a learned Single Judge of the Lahore High Court, the Hon'ble Supreme Court while dismissing petition for leave to appeal against the above judgment of the Lahore High Court observed that a tenant is entitled to an opportunity to show cause before his defence is struck off as the Rent Controller is not obliged to hold fullfledged trial. In the above case the Rent Controller had passed the order of striking off the defence without any formal application though he heard the tenant on the question of striking off the defence before passing of the order of striking of the defence.
(iv) The Burma Oil Company Limited v. The Trustees for the Port of Chittagong PLD 1961 SC 452, in which the question before the Hon'ble Supreme Court was, whether the trustees for the Port of Chitta gong had waived the toll which was levied in 1955 but no formal demand was made until 17- 5-1960. While dealing with the above question it was held by the Hon'ble Supreme Court that in order to constitute a waiver there must be some conscious giving up of the right.
(v) Mustaqim v. Sher Bahadur PLD 1962 (W.P.) Pesh. 14 in which a Division Bench of the erstwhile High Court of West Pakistan Peshawar Bench while hearing the second appeal in context with the question, whether there could be waiver in a case of pre-emption observed that "waiver as commonly understood is an intentional relinquishment of a. known right".
(vi) Dr.M.Fazil Zahir and Others v. Mst.Begum Jan and others PLD 1966 (W.P.) Lah. 53, in which a learned Single Judge of the erstwhile High Court of West Pakistan, Lahore Bench, held that mere acceptance of rent for the period subsequent to that for which default had taken place or at a date subsequent to filing of an application for ejectment cannot amount to waiver by the landlord of his right to eject tenant for default.
(vii) Ismail v. Muhammad Siddique PLD 1961 (W.P.) Kar. 111, in the above case a learned Single Judge of the erstwhile High Court of West Pakistan at Karachi held that mere acceptance by landlord of rent relating to the period subsequent to notice to quit does not amount to waiver of such notice.
(viii) Mst.Alima Ahmed v. Amir All PLD 1984 SC 32, in which the Hon'ble Supreme Court was pleased to hold that the alleged practice of accepting accumulated rent is no defence to a ground of default.
6. I am inclined to hold that simpliciter delay in filing of an applica- tion for striking of the defence after the commission of the default of a tentative rent order does not amount to a waiver on the part of the landlord. To constitute a waiver there must be conscious giving up of the right by the landlord or in other words there should be an intentional relinquishment of a known right by the landlord. In the present case there is no material on the record either to infer that the respondent had discovered the default of the tentative rent order in respect of the month of June, 1979 upon submission of the Nazir's report dated 18-8-1979 on the aforesaid respondent's application dated 15-8-1979, for the withdrawal of the rent or that the respondent had consciously or intentionally relinquished his above known right. As pointed out hereinabove that the question of waiver is generally a mixed question of facts and law and, therefore, a party who wishes . to press into service waiver as a plea of defence is required t9 plead expressly. As observed hereinabove the present appellant has not raised any such plea expressly with the result that there is no material on the record on the basis of which it can be inferred that the respondent had waived his right of getting the appellant's defence struck off on the ground of non-compliance of the tentative rent order.
7. For the aforesaid reasons the appeal is dismissed with no order as to costs. However, I allow six months time to the appellant on the condition that the appellant shall continue to deposit rent in terms of the Rent Controller's order, failing which the respondent shall be at liberty to file execution application before the expiry of the above period of six months.
Furthermore, if on the expiry of the above period of six months, the appellant fails to vacate the premises in question, the Rent Controller shall issue writ of ejectment without further notice to the appellant.