' This appeal under section 21 of the Sind Rented Premises Ordinance, 1979 has arisen from an order of ejectment dated 30-6-1983 passed by the learned Senior Civil Judge/Controller, Jacobabad, in Rent Case No.26/82-Amir Bux s/o Rehmatullah v. Sazuddin s/o Karamud din
2. The appellant Sazuddin is in occupation of a shop on C.S. No.216-127, Ward No.2 Jacobabad Town, belonging to the respondent Amir Bux, since 24th September, 1969, on the basis of an agreement of tenancy. The respondent filed Rent Application No.3/78 in the Court of Senior Civil Judge/Controller, Jacobabad, on 7-1-1978, for ejectment of the appellant on the ground that the appellant had made default in payment of rent from 23-2-1976 and also that the respondent/landlord needed the shop for his personal use. The appellant resisted the application. The parties adduced evidence. The learned Controller passed the order of ejectment on 8th December, 1978 on both the grounds that the appellant/tenant had made default in payment of rent and that the respondent/landlord needed the shop for his personal use. In appeal filed in the Court of District Judge, Jacobabad, the order of ejectment was upheld only on the ground of default in payment of rent by an order dated 16-9-1979 second appeal No.59/1979 was filed in this Court. By consent, order dated 23-8-82, the order, dated 18-12-78 of the learned Civil Judge/Controller and the judgment of the District Judge dated 16th September, 1979 were set aside and the case was remanded to the Controller to decide the matter after recording further evidence, if any, on the following issue:-- "Has appellant/opponent committed default, if any in respect of period from 1-9-1977 till 31-3-78 in respect of rent due from him."
' Both the parties adduced evidence on the newly-framed issue. The learned Controller, by his order,.dated 30-6-1983, held that the appellant had committed wilful default in payment of rent for the period from 1-9-77 to 31-3-77 and allowed the application for ejectment and directed the appellant to put the respondent/landlord in possession of the shop within two months from the date of the order. This appeal is directed against that order.
3. The learned counsel for the appellant has urged that the appellant had offered rent to the respondent for all the seven months but the latter had declined to accept it and the appellant had tendered rent by way of money order remittance for the months of September, October and November and that too was not accepted. He has placed reliance on two money order coupons put in evidence as Exhs.83-A and 83-E and money order remittance receipts Exhs.83-B and 83-D. The learned counsel has also urged that the appellant has stated himself on oath and also examined one witness by name Ali Sher to the effect that rent was offered to the respondent but he had declined to accept it. According to the learned counsel, there was no default in payment of rent, and if at all there was any default that could be only in respect of the rent for the month of December as the default was to be counted after the expiry of 60 days from the day rent had become due. In view of provisions of clause 1 to subsection (2) of section 13 of the Sind Urban Rent Restriction Ordinance, 1959, where under the ejectment application was filed; and mere default in payment of rent for only one month was not a wilful default. On the other hand, the learned counsel for the respondent has contended that the appellant did not establish the alleged tender of rent for the months of September, October and November, 1977 and that there is absolutely no evidence that the appellant had offered rent to the respondent and it was not accepted. His further contention is that even if it is accepted that the appellant had made two remittances of the rent, they covered the rent for the months to September, October and November 1977 but no rent was paid nor any legal tender thereof was made for the period from December, 1977 to March, 1978 and there was clear default on his part and he is liable to be ejected.
4. As per order of this Court dated 23-8-1982, the question of ejectment was to be determined on the basis of issue: whether there was default in payment of rent for the period from December, 1977, to March, 1978. The appellant's case is that he had offered rent to the respondent but it was not accepted and he had, therefore, remitted rent twice by money order. The money order remittances are covered by the money order coupons Exhs.83-A and 83-E and the money order remittance receipts Exhs.83-B and 83-D put in evidence. Money order coupon Exh.83-A is dated 3-11-77 and it is for the sum of Rs.200. The money order remittance receipt Exh.83-B also is dated 3-11-77. The money order coupon Exh.83-E is dated 24-11-77 and it is for the sum of Rs.300. Money order remittance receipt Exh.83-D also is dated 24-11-81. Both the money order coupons were addressed to the respondent Amir Bux. The learned counsel for the respondent has contended that the appellant had examined the postman to prove the remittances but the postman could not say that he had taken those money orders to the respondent and they were not accepted. The postman Muhammad Siddiq could not confirm this fact as there was no endorsement on the coupons and the post office record was not available for verification. It appears from the money order coupons and money order remittance receipts that they are genuine documents and there seems no doubt that these two remittances were made towards the rent. The settled monthly rent was Rs.100 and the money order Coupon Exh.83-A covered the rent for the months of September and October, 1977, and the rent was tendered within 60 days in the terms of clause 1 of subsection (2) read with explanation 1 of section 13 of the Sind Urban Rent Restriction Ordinance, 1959. The remittance by money order coupon Exh.83-E for the sum of Rs.300 covered the rent for the months of September, October and November, 1977 and it was remittance in accordance with law. Accordingly there was no doubt in payment of rent for the months of September, October and November 1977. As regards the rent for the months of December, 1977 and January, February and March, 1978, there is only a world of the appellant that he had offered rent to the respondent but he had declined to accept it. The respondent has denied on oath that the rent was offered to him and he had declined to accept it. It was held by the Supreme Court in a case Allah Din v. Habib PLD 1982 SC 465 that if a landlord appears in the Court and states on oath that he had not received the rent for a certain period, the onus shifts to the tenant to prove affirmatively that he had paid or tendered rent for the period in question. In the instant case, the appellant did not adduce any evidence except making statement himself, and examining one witness that he had paid or tendered the rent to the respondent. Even otherwise, it is unbelievable that the appellant had offered rent to the respondent who, according to him had refused to accept the rent since September, 1977 and also had declined to receive money order remittance twice. It is, thus, evident that the appellant has failed to establish that he had tendered the rent to the respondent for the months of December, 1977 January, February and March, 1978. As indicated above, it was monthly tenancy and rent had to be deposited within 60 days from the day it had become due.
The monthly tenure of the tenancy was from 29th of one month to the 23rd of the following month.
Even if the monthly tenancy were to be construed according to the calendar month, rent for the month of December had to be paid by Ist March, 1978 and that for the month of January by 1st April, 1978. But the rent was deposited with the Controller and that too after order for its deposit was made by the Controller on 9th April, 1978. Obviously there was clear default in payment of rent for the months of December, 1977 and January, 1978. Of course, the appellant could not be burdened with liability of default in payment of rent for the months of February, and March, 1978, as the period of 60 days within which rent could be paid, had not expired.
5. The learned counsel for the appellant has further urged that even if the appellant is found to have made default in making payment of rent for the month of December, 1977, and January, 1978 he was not a wilful defaulter. But there is no evidence on the record to find justification for not making payment of rent for those two months. On the contrary, it appears that rent was not paid even for the subsequent two months although he is not technically liable for having made default in payment of rent for those two months.
6. For the reasons recorded above, the appellant is liable to have made wilful default in payment of rent for two months viz. December, 1977, and January, 1978, and he is liable to be ejected. The order of ejectment passed by the learned Controller is upheld on the ground of default in payment of rent for only the months of December, 1977, and January, 1978. In the result, the appeal is dismissed with costs. The appellant is allowed four months time, by consent, for vacating the shop and handing over its vacant posession to the respondent/landlord.
M.B.A. .
1984 CLC 34 [Karachi)
Before Tanzilur Rehman, SHAUKAT ALI--Appellant versus SAKHAWAT HUSSAIN--Respondent First Rent Appeal No. 699 of 1984, decided on 22nd July, 1984.
(a) Sind Rented Premises Ordinance (XVII of 1979)--- - -Ss .16 (2) & 21--Defence, striking off--Tenant failing to deposit rent late by four days on two occasions--Filing application for condonation of such delays on ground that he had given rent to his, counsel, who failed to deposit same on due dates--Tenant neither filing affidavit of counsel nor stating any reason for alleged failure on part of counsel--Held, such fact simpliciter could not be held sufficient ground for condonation of delay as tenant was vicariously liable for act and omission of his agent unless shown to have acted in excess of authority conferred on him or omitted to act for reasons beyond his control--Delay of each day had to be explained--Held further, tenant may have his remedy against counsel, who allegedly failed to deposit rents within due dates, if so advised. [pp. 35, 38] A & F Hamdard Laboratories (Waqf) Pakistan v. Shah Syed Hussain Naqvi 1980 CLC 680; Muhammad Umar v. Aiysha Aziz 1981 SCMR 276 and Zafar Qureshi and others v. Khawaja Maqsoodul Hassan etc. 1982 SCM R 392 ref.
(b) Words and phrases-- ---"Waiver"--Definition of--To prove waiver there should be some clear and decisive act or conduct beyond mere silence. [p. 36] B Black's Law Dictionary, Fifth Edn. ref.
(c) Words and phrases-- ---"Waiver by conduct"--Mere failure to take objection or to take action due to ignorance of breach of one's right, held, could not be said to give rise to any waiver by conduct. [p. 37]--C--
(d) Sind Rented Premises Ordinance (XVII of 1979)-- - --S.16 (2)--Defence, striking off--Landlord making application under S.16 (2) after more than two years of default--Landlord not aware, even on date of making application under S.16 (2) of actual dates of default in depositing rent due, which subsequently proved on Nazir's report--Held, tenant could not be allowed to raise plea that landlord had waived his right to seek relief under S.16 (2) of Sind Rented Premises Ordinance, 1979, in circumstances. [p. 37] D
(e) Sind Rented Premises Ordinance (XVII of 1979)-- - --S.16 (2)--Transfer of Property Act (IV of 1882), S.114-- Waiver--Default in deposit of rent coming to knowledge of landlord after two years--Such knowledge imperfect inasmuch as landlord did not know actual date of default--Withdrawal of amount of rent by landlord after he had knowledge of alleged default, neither alleged nor stated before Court--Default being wilful or otherwise, a consideration resting with act or omission of tenant in depositing rent--Withdrawal of rent by landlord in circumstances, held, would not waive his right of filing application under S.16 (2) or that his right affected by delay of over two years in making application--Waiver by conduct would be relevant under S.114 of Transfer of Property Act, 1882, where landlord waived his right to forfeiture of lease by accepting rent, accruing due after breach of covenant having become known to him--Sind Rented Premises Ordinance, 1979, does not limit any period of time for making application under S.16 (2).--[Waiver]. [p. 37] E S.Y. Muhajir v. Mst. Aisha Jamal PLD 1983 Kar. 489 dissented from.
M.I. Memon for Appellant. Nemo for Respondent.
Date of hearing: 22nd July, 1984.
' This is an appeal under section 21 of the Sind Rented Premises Ordinance, 1979, challenging the order of the learned Senior Civil Judge/Rent Controller, Shikarpur passed in Rent Case No.24/1981 whereby the defence of the appellant was struck off for default in depositing the rent on the due dates and consequently ejectment order was passed against the appellant.
2. Briefly, the facts of the case are that the learned Rent Controller passed an order on 13-10-1980 directing the appellant to deposit the future rent on or before 10th day of every calendar month. The appellant deposited the rent for the month of April, 1981 on 14-5- 1981, though he was required to deposit the same on 10-5-1981. Again, the rent due for the month of June was deposited on 11-7-1981 instead of 10-7-1981. Lastly, he again deposited the rent for the month of September, 1981 on 14-10-1981 instead of 10-10-81. In the first and third case there was a delay of four days whereas in the second case there was a delay of one day.
3. The respondent filed an application under section 16 (2) of the Sind Rented Premises Ordinance, 1979 before the Rent Controller on 18-1-1984. The report from the Nazir was called for. The parties were heard and the learned Rent Controller was pleased to strike off the defence of the appellant by his order dated 20th June, 1984, against which the appellant has now come in appeal.
4. The learned counsel admits that there were three defaults commit- ted by the appellant in depositing the rents on the due dates. In respect of the second default, referred to above, his contention is that on 10-7-81 being Friday the rent was deposited on the following day. With regard to the other two defaults his contention is that there is admittedly a delay of four days each in depositing the rents. The ground for condonation, as urged by him, is that the appellant had given the rent to the learned counsel appearing for him in the lower Court who failed to deposit the same on the due date. This simplicitor, I am afraid, cannot be held in law to be a sufficient ground for condonation of delay as the appellant is vicariously liable for the act and omission of his agent, unless shown to have acted in excess of authority conferred on him or omitted to act for reasons beyond his control. I may refer to the case of Hamdard Laboratories
(Waqf) Pakistan v. Shah Syed Hussain Naqvi 1980 CLC 680. It is, however, pertinent to note that neither an affidavit of the Advocate has been filed nor any reason has been stated for the alleged failure on the part of the Advocate for non-deposit of rent on the due date.
5. The Supreme Court in the case reported as Mohammad Umar v.
Aiysha Aziz 1981 SCM R 276 observed that each day's delay in the deposit of rent had to be explained and justified. In another case reported as Zafar Qureshi and others v. Khawaja Maqsoodul Hassan etc. 1982 SCM R 392 the Supreme Court was again pleased not to interfere with the order of the Rent Controller in a case of default even for one day. It was, thus, observed:- ."The learned counsel for the petitioner next contended that there was only one day's delay in deposit of rent for the month of October, 1974, and that delay occurred as the rent had been deposited on the 16th November, instead of 15th November. This contention overlooks the fact that in reality, the petitioner was given one full month or at least 15 days to deposit rent of the previous months. As such if the petitioner deposited the rent one day after the time fixed, the delay in fact is much more than one day. In any case it was a matter of discretion with the learned Rent Controller, and we do not consider it a fit case to interfere with his exercise thereof."
6. The learned counsel further contended that the application for striking off the defence was made by the Respondent after about two and a half years. It amounted to waiver of his right and he is precluded from claiming relief under section 16(2) of the Sind Rented Premises Ordinance, 1979. Admittedly, the last default was committed by not depositing the rent due for the month of October, 1981 and the application under section 16(2) for striking off the defence was made on 18-1-1984. In support of his contention, the learned counsel relied on a Single Bench ruling of this Court reported as S.Y. Muhajir v. Mst. Aisha Jamal PLD 1983 Kar. 489, wherein the delay in filing the application for striking off the defence was held to be a waiver of right.
7. "Waiver" has been defined in Black's Law Dictionary, Fifth Edition as-- "The intentional or voluntary relinquishment of a known right, or such conduct as warrants an inference of the relinquishment of such right, or when one dispenses with the performance of something he is entitled to exact or when one in possession of any right, whether conferred by law or by contract, with full knowledge of the material facts, does or forbears to do something the doing of which or the failure of forbearance to do which is inconsistent with the right, or his intention to rely upon it... "Waiver" is essentially unilateral, resulting as legal consequence from some act or conduct of party 'against whom it operates, and not act of party in whose favour it is made is necessary to complete it."
8. The "Waiver", therefore, is either express or implied. Waiver by implication can be inferred from the circumstances of each case. However, to prove waiver there should be some clear and decisive act or conduct beyond mere silence. Reliance is placed on the authority of the Supreme Court in Muhammad Saleh v. Muhammad Shafi 1982 SCM R 33, wherein it was held that "omission to enforce one's legal right strictly cannot give rise to an inference that the right has been abandoned". The Supreme Court in the case, referred to above, held 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 take objection or to take action due to ignorance of the breach of one's right cannot be said to give rise to any 'Waiver' by conduct."
9. The learned counsel for the appellant has shown me, during the course of his submissions, a copy of the application moved by the respondent under section 16(2) of Sind Rented Premises Ordinance, 1979 which, though makes a clear allegation that the appellant had committed default in depositing rent, but was silent as to the relevant dates of the alleged defaults. This goes to show that the respondent was not aware, even on the date of making the application of the actual dates of default committed by the appellant in depositing the rent due, which were subsequently proved on the Nazir's report having been brought on record. In these circumstances, the appellant cannot be allowed to raise the plea that the respondent had, by his conduct in filing the application after more than two years, had waived his right to seek relief under section 16(2) of the Sind Rented Premises Ordinance, 1979.
10. In the case relied on by the learned counsel for the appellant, referred to above, the learned Judge, while condoning the delay in depositing rent on the due date had observed that-- "for two years the landlord/respondent was sleeping over the default or even if he did not know about the default yet from the circumstances that he had withdrawn the amount so deposited by the appellant, it appears that the default is not wilful one and it should be condoned."
' With respect, I am not inclined to agree with the view taken by the learned Judge in the above case. Merely withdrawing the amount so deposited (after the due date) by the appellant the default cannot be held to be "not wilful". The default being wilful or otherwise is a consideration which rests with the act or omission of the tenant depositing the rent. Withdrawal by the landlord of the amount deposited by the tenant after the due date to be a 'waiver by conduct', would have been relevant to a case where the landlord waives his right to a forfeiture of a lease by accepting rent which accrued due after the breach of a covenant causing the forfeiture having become known to him, as provided under section 114 of the Transfer of Property Act, 1882. But here the parties are faced with a different situation. The question is that of taking an action in the court by the Respondent under the provisions of section 16(2) of the Sind Rented Premises Ordinance, 1979 for the default committed by the Appellant which was not in his knowledge till he made that application on 18-1-1984 and on that date too he had an imperfect knowledge inasmuch as he did not know the actual dates of default. In any case, it has not been alleged or stated before me that the respondent had withdrawn the amounts of rent deposited by the appellant after he had the knowledge of the alleged default, which amounted to waiver. Therefore, in the circum stances of the case it cannot be said that the respondent by withdrawing the amount of rent deposited in the Court had waived his right of filing application under section 16(2) of the Sind Rented Premises Ordinance, 1979, or that his right was affected by the delay of over two years in making the said application. It may further be stated that the Sind Rented Premises Ordinance, 1979 does not limit any period of time for making an application under section 16(2).
11. In this view of the matter, I find no force in this appeal which is dismissed in limine. However, at the request of the learned counsel, I grant two months' time for handing over the vacant possession of the premises to the respondent, subject to payment of rent by the appellant regularly. The appellant may have his remedy against the learned counsel who is alleged to have failed to deposit the rents within the due dates, if he is so advised.