This is a Second Appeal under the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereafter called the said. Ordinance) and the dispute in it relates to an open plot of land--owned by the respondent and situated on Lawrence Road, Karachi. The appellant is a tenant of this plot and as, according to the respondent, she was irregular in the payment of rent, on 31-1-196Cr--he filed an eviction application against her under section 13 of the said Ordinance in the Court of the Rent Controller and 4th Civil Judge, Karachi. The appellant contested the case and filed--a written statement denying the allegations made by the respon--dent against her and further pointed out that there was a long. Background of litigation between them. After the written state--ment had been filed, in accordance with the provisions of subsec--tion (6) of section 13 of the said Ordinance, the Rent Controller passed the usual order for deposit of rent on 23rd May 1966. By this order, he directed the appellant to deposit the arrears of rent by 15th July 1966 and to pay the monthly rent in accordance--with the provisions , f the said Ordinance. According to the respondent, the appellant has paid all the rent due from her under the Rent Controller's order dated 23rd May 1966, but as, she was always late in the deposit of the monthly rent, on. 6th January 1968, he filed an application under subsection (6) of section 13 of the said Ordinance for striking off her defence.. The appellant contested this application, and it is material to point out that she merely pleaded in her defence that she was an, old woman not keeping good health, and that her default, if any, stood waived by the respondent. She denied that she had not deposited the rent due from her, but this averment was not. Material because it was not the respondent's case that she had failed to deposit the rent due from her but only that she had been late in the deposit of monthly rent. Another averment made by the appellant in her reply was that the main case was ripe for hearing, but as this too was a circumstance irrelevant to the question whether she had deposited the monthly rent in, time or not, it is clear the only pleas advanced by her in her reply to the respondent's application were that her default stood waived by the respondent and that she was avery old lady.
2. The respondent's application for striking off the appellant's defence was allowed by the Rent Controller by his order of 30th August 1968, and I have further to observe here that from this order also it is very clear that the appellant had advanced in her arguments before the Rent Controller only the two pleas raised by her in her reply, namely that she was very old and that the default stood waived. The first plea was rejected by the Controller with the following observations ; "Since no evidence is taken by opponent. It cannot be said that the delay in depositing monthly rent was due to any uncontrollable reasons." With regard to the second plea,, the Rent Controller referred to the Nazir's report and pointed out that it established that the appellant had been repeatedly late in depositing the monthly rent. He then observed "It is therefore obvious that the opponent has committed default in the deposit of rent". Accordingly, by his order dated 30th August 1968 he struck off her defence and directed her to hand over vacant possession of the demised premises within one month.
3. Aggrieved by this order, the appellant filed an appeal in the District Court, Karachi which was heard by an Additional District Judge. The learned Additional District Judge agreed with the findings of the Rent Controller, but the appellant advanced a new plea in her appeal. This was that she also had filed an application against the respondent under section 13 of the said Ordinance for deposit of rent because the respondent was dishonestly refusing to accept rent from her, and according to para. 4 of her appeal, the application thus filed by her was disposed of by an order "that rent deposited in that case be treated as amount deposited in the case viz. R. C. 115 of 1966 filed by the respondent". Although the appellant did not properly specify the order thus relied upon by her, she had produced it before the learned Additional District Judge. It was passed on 23-1- 1968 by the same Court which had allowed the respondent's application for striking off the appellant's defence. In this order, after pointing out the contentions of the parties, the learned Rent Controller had observed as follows : "Learned counsel of opponent (that is the respondent before me) concedes that without prejudice to the rights of an opponent, applicant may be allowed to deposit the rent. I accordingly, order that without prejudice to the rights of opponent landlord, the applicant is allowed to deposit the rent in this case or in the other case which is R. C. No. 115 of 1966- -(The case filed by the respondent). The case stands disposed of." With reference to this order of 23-1-1968, the learned Additional District Judge observed that the case in which it had been passed had become infructuous after the respondent had filed his eviction application against the appellant, therefore he held that this order of 23-1-1968 was unnecessary and that it could not vary the order passed by the Rent Controller for deposit of rent in the respondent's eviction case.
Accord--ingly he dismissed the appeal by his order of 19-1-1971,. And the appellant then filed second appeal in this Court--against the dismissal of her first appeal which has now come up for hearing before me.
4. I shall now consider the arguments of Mr. Jamaluddin Shaikh, learned counsel for the appellant ; and, as in the Courts below he relied on the fact that the appellant was a very old lady, I have to point out here that persons are not relieved from complying with an order for deposit of rent merely on the ground of old age, and both the Courts below have rejected this defence because the appellant had not produced any evidence to show how and why she had been prevented from depositing current rent within the specified period. In view of the appellant's failure to produce evidence,.
1 see no reason to differ from the concurrent findings of the Courts below rejecting this plea.
5. Mr. Jamaluddin's second argument was that the appellant had been persistenly late in the deposit of the monthly rent between June 1966 and January 1968, therefore, according to learned counsel, the respondent's delay in filing his applica--tion for stiking off the appellant's defence was barred by waiver. As the said Ordinance does not prescribe the period within which such an application has to be filed I am not able to understand how mere delay by a landlord in filing such anlB application can by itself amount to waiver. As learned. Counsel was not very clear about the meaning of waiver, I would quote here a definition given by the Privy Council in Dawsons Bank Ltd. v. Nippon Menkwa Kabushihi Kaish (Japanese Cotton Trading Co. Ltd) (1) : "--. . . Waiver is contractual and may constitute a cause of action ; it is an agreement to release or not to assert a right." Waiver is thus an agreement ; how then could the respondent's delay in asserting his rights by itself amount to an agreement ? As observed by Lord Bowen in Selwyn v. Carfit (2) : "What is waiver ? Delay is not waiver. Inaction is not waiver, though it may be evidence of waiver." I would however observe here that whilst waiver is different from estoppel delay is sometimes treated as evidence c of waiver in those cases where a waiver has ripened into an estoppel. I may therefore for convenience quote here a passage from Palsbury's Waiver (Third Edition, Volume 14, page 637): "A person who is entitled to the benefit of a stipulation in a contract or of a statutory provision may waive it. . . Waiver of this kind depends on consent, and the fact that the other party has acted upon it is sufficient consideration. Where the waiver is not express, it may be implied from conduct which is inconsistent with the continuance of the right. It seems that in general where one party has by his words or conduct made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, then, once the other party has taken him at his word and acted on it, the party who gave the promise or assurance cannot be allowed to revert to the previous legal relationship . . . . . . ."
In my humble opinion, these observations state the correct law and applying them to the present case, I am of opinion that the delay by the respondent in filing his application was not inconsistent with the continuance of his right because, as I have already explained, the said Ordinance has not prescribed any period for filing an application in striking off the defence of a tenant. Similarly, it cannot conceivably be contended, that the appellant had altered her position to her detriment on account of the respondent's delay, therefore this i's not a case in which waiver can be said to have ripened into a estoppel. Accordingly, I cannot accept learned counsel's argu--ment that the respondent's delay by itself amounted to waiver,
(1) AIR 1935 PC79(2) (1888) 38 Ch. D 2'73 and I am fortified in my opinion by a judgment of the Calcutta High Court reported in Midnapore Zamindary Co. v. Kumar Chandra (1), a case to which Mr. Arfin referred me.
6. Mr. Jamaluddin however submitted that his argument was supported by a judgment of a learned Single Judge of the Lahore seat of the West Pakistan High Court in Syed Masood Hussain v.
Mohammed Saeed Khan (2). There the facts were that the tenant had twice failed to comply with the Rent Controller's order for deposit of monthly rent. The londlord had therefore filed an application for striking off his defence, but because he had filed this application more than one year after the defaults by the tenant, the learned Single Judge held that he bad waived his right to have the tenant's defence struck off. The Judgment cited is distinguishable, because, in the present case, the respondent had continued to violate the Rent Controller's order for depesit of rent right up to the date of the respondent's applieaiion. However, Mr. Arfin submitted that this Judgment required further consideration, and in deference to the arguments of both the learned counsel I have examined it carefully. 1 find that the main point agitated before the Court by the appellant landlord was that a landlord could not waive his rights under subsection (6) of section 13. 'The learned Single Judge rightly repelled this submission (I say so with respect), and further held, on the facts, that the appellant had waived his rights under subsection (6) by his delay. Mr. Jamaluddin relied on this finding of the learned Single Judge that the appellant had waived his rights merely by his delay in prosecuting his remedy under subsection (6). But as explained by the Privy Council, waiver means an implied agreement, therefore in my humble opinion delay by itselfIE cannot amount to waiver. However in taking a contrary view, the learned Single .Fudge appears to have relied on the fact hat although the respondent tenant gave evidence, the appellant had not cross-examined him on his failure to deposit rent in accordance with the Rent Controller's order under subsec--tion (6) of section 13. But as the respondent tenant was giving evidence in the main case, he could have been cross--examined only on the allegations of the appellant in his eviction application. Necessarily those allegations could not include any averment with regard to non- compliance with the order for deposit of rent, as that order had been passed long after the filing of the appellant's eviction case, and in these circumstances the appellant's conduct could amount to waiver only if he was under an obligation to file an application for striking off the respondent's defence immediately or before evidence in the main application began. But as the right to file an application under subsection (6) is not subject to any restriction, whether of limitation or otherwise, the view of the learned Single Judge is based, as submitted by Mr. Jamaluddin, on the assumption that delay by itself amounts to waiver. With great respect, this would be reading into subsection (6) a qualification which is not contained in it, therefore I am not
(t) AIR 1943 Cal. 544(2) PLD 1965 Lah. I I able to agree with this view. However, the learned Single Judge has also relied on a Judgment of the Judicial Committee report in Vellayan Chettlar v. Government of the Province of Madras (1) and a judgment of the Madras High Court reported in Bodi Venkataswami v. Adada Mehalakshmi (2).
The Madras case turned solely on the effect of an express waiver by the Advocate of the defendant, therefore it had no relevance whatever to the question whether delay by a party in enforcing his remedies amounted to waiver. As to the Privy Council case, the Judicial Committee held in its judgment that Government could waive its immunity under section 80, C. P. C.', and that waiver could also be inferred from circumstances. But on the facts it rejected the appellant's plea that the Province of Madras had waived its immunity under section 80. However, whilst observ--ing that the respondent could have _ waived its immunity by conduct, Lord Simonds observed ,at page 164 : "The burden lies on the appellants to establish Vie facts upon which they rely for raising the implication or creating the estoppel . . . . . . ." In my humble opinion, these observations are not consistent with the view that delay by a litigant in enforcing his remedies by itself amounts to waiver. As I have pointed out earlier, a litigant's conduct might amount to waiver when I . Is coupled with an estoppel. But I do not see how a landlord's delay in asserting his remedies under subsection
(6) can possibly' create any estoppel or amount to election which is but anothe form of estoppel. 'i. Additionally, I have to observe here with reference to the case-law on which the learned Single Judge relied that the waiver by a defendant of an immunity such as is contained in section 80, C. P.
C. Has reference to the formalities prescribed by the Civil Procedure Code. Thus the provisions of order 8 are applicable to Governments, so that if a defendant Govern--ment does not plea the bar of section 80, C. P. C. In its written statement, it is deemed to have waived its immunity. Similarly, there is authority for the proposition that if, after having pleaded the bar of immunity in its written statement, the defendant Government does not have an issue framed in this respect it is deemed to have waived its rights. However in such cases the wavier arises, not because of inaction by the defendant, but because the provisions of the Civil Procedure impose a duty on the defendant 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 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. Now, according to this subsection a Controller has to pass an order for deposit of rent and in the event of any dispute about the amount or rate of rent due, he has to determine only the approximate amount and "direct that the same be deposited by the tenant before a date to be fixed for the purpose." The
(1) PLD 1947 P C 160(2) AIR 1949 Mad. 747 subsection further reads: "If the tenant makes default in the compliance of such an order, then if he is the petitioner, his application shall be dismissed summarily and if he is the respondent his defence shall be struck off, and the landlord put into possession of the property without taking any further proceedings in the case." 1n my humble opinion, the subsec--tion does not impose any duty on the landlord not to be silent, therefore it does not lend any support to the view that a t landlord's delay in asserting his remedy under this subsection would by itself amount to delay, therefore, with great respect, I am not able to follow the view taken in Syed Masood Hussain's case.
8. I am also not able to accept learned counsel's argument that a landlord waives his rights under this subsection if he draws out the rent deposited in Court after default by the tenant in compliance with the Rent Controller's order. This is because the tenant has to deposit rent for the landlord's benefit, and his obligation so to do does not come to an end because of his default.
Further, as the subsection does no impose any restriction on the landlord's right to draw out the rent deposited he is free to do so at his convenience, so that even if he does so after a tenant has committed default, this would not in any way be inconsistent with his desire to prosecute his remedies against the tenant in the main eviction case or under subsection (6). I am therefore of opinion that even if a landlord withdraws rent after the tenant's default his action In so doing will not, by itself, amount to waiver or lead to an estoppel or election. I am however aware that acceptance of rent after the forfeiture of a lease amounts to waiver under section 112 of the Transfer of Property Act, but it is significant that this is the result of the express provisions of section 112, and I may point out here that this section embodies an old rule of the common law. This rule however is not being extended by the Courts even in England. Thus in Clarke v. Grant and another
(1) the Court of Appeal held that "acceptance by the landlord of rent in respect of a period after the termination of the tenancy by a notice to quit did not operate as a waiver of the notice. I would therefore not extend the statutory principle of section 112 to the said Orjinance, the more so as this would be contrary to the plain language of subsection (6), and I would like to point out here that this question was also considered fn Dr. M. Fazil Zahir and others v. Mst. Begum Jan and others (2).
The facts of this case were that an eviction application had been filed under the said Ordinance against a tenant, as he had failed to pay rent for more than one year. However, it transpired from the evidence that the landlord had accepted some rent before the filing of the eviction case, therefore the submission of the tenant was that the landlord had waived his default, and in this connection the tenant relied on the principles of section 112 of the Transfer of Property Act and the Judgment of the learned Single Judge in Syed , Masood Hussain's case. The learned
(1) (1949) 1 A E R 768(2) PLD 1966 Lah: 53- Single Judge rightly repelled (I say so with respect) the first argument by pointing out that the provisions of the Transfer of Property Act could not be imported into another statute, namely, the said Ordinance, but he hold with reference to Syed Masood Hussain's case that this Judgment was distinguishable because the default in that case was default in complying with an order for deposit under subsection (6). With great respect, the distinction thus drawn by the learned Single Judge appears to me to be untenable. As the statutory waiver of section 112 of the Transfer of Property Act could not be imparted into the said Ordinance, if the acceptance of rent did not amount to waiver for the purpose of filing an eviction case, then I do not see how mere delay by a landlord in availing himself of his remedy under subsection (6) would amount to waiver. In my humble opinion the view taken in these two cases cannot be reconciled. In any event, I hold that the principles of section 11 L cannot be imported into subsection (6) either, therefore I cannot accept Mr. Jamaluddin's argument.
9. Finally, Mr. Jamaluddin referred me to authorities in which it has been held that a tenant's defence cannot be struck off for non-compliance with an order for deposit of rent if that order is defective. On the basis of these authorities he argued that the orders against which he had come in appeal were illegal because the appellant's eviction was being ordered on the basis of a defective order for deposit of rent. Learned counsel however admitted that there was no defect whatever in the order passed by the Rent Controller on 23rd May 1966,. In the respondent's eviction application. The alleged defective order on which Mr. Jamaluddin relied was the order passed on 23-1-1968, in the appellant's own application. But the respondent had filed an application for striking off the appellant's defence on the ground that the appellant had failed to comply with the order for deposit of rent passed in his eviction application in 1966, and it was this application which had been allowed. Further, as I have pointed out in para. 1, the appellant had not based her defence on the so-called defective order of 23-1-1968 therefore, as her objection does not turn on a pure question of law, it is not open to bar now to raise it. However, even assuming that this objection can be advanced it is utterly frivolous.
10. As the appellant did not challenge the order for deposit of rent passed by the Rent Controller in the respondent's application on 23-5-1966, it is clear that this order had become final and was binding on her. In view of this order, the respondent's application under section 13 should have been dismissed and, in any case, after passing his order of 23-5-1966 in the respondent's eviction application, the Rent Controller had no power of modifying that order. Accordingly, Mr. Jamalud-- din's argument cannot be accepted, because even if it is assumed that the Rent Controller had modified his order of 23-5-1966, that modification was illegal and void. But I have quoted the relevant part of that order in para. 3, and it is clear that the Rent Controller had not modified his order of 23-5-1966.
However, because this order did not repeat the direction contain--ed in the order of 23rd May 1966, that current rent had to be deposited within 15 days of the expiry of the calendar month, Mr. Jamaluddin argued that the appellant, who was a very old lady, had been confused by the vagueness of the order of 23-1-1968. I am notable to understand how the order of 23-1-1968, could have confused the appellant in the deposit of rent between June 1966 and December 1,967. The argument is too frivolous to be considered.
11. No other argument was advanced. The appeal is without merit and is dismissed with costs, bat as the appellant is carrying on business in the plot leased to her, I give her time up to 31st December 1971, to hand over vacant possession of the demised plot to the respondent.