1. ' This First Rent Appeal is directed against the order dated 5-7-1987 passed by the 1st Senior Civil Judge/Rent Controller, Karachi West whereby dismissing the eviction application filed by the appellant.
2. ' The facts leading to the filing of the above appeal are that the appellant is the landlady of Plot No.ST-3, (68 to 72) measuring about 1,000 square yards situated at Circular Road (Sir Shah Muhammad Suleman Road), Deh Gujro, KDA Scheme No.16, Karachi and the respondents are the tenants thereof, whereupon the respondents have been running their petrol pump and since 15-4- 1982 they were paying rent at the rate of Rs.3,000 per month. Prior to that, they had been paying rent at the rate of Rs.2,500 per month. On the basis of the offer made by M/s. Dawood Petroleum Limited, the predecessors of the respondents, by letter dated 8-1-1971 to the mother of the appellant who was the owner of the aforesaid plot at that time, she agreed to execute lease deed dated 26-5-1972 in their favour. By a registered lease deed dated 26-5-1972, the respondents entered into possession of plot in question. The lease was for a period of ten years effective from 15-4-1972. The lease inter alia gave the respondents option of renewal of the said lease for two further terms of ten years each on the same terms and conditions contained in the lease deed. It is provided in clause 2(b) of the lease deed as under:-- "To pay, except hereinafter provided in clause 3(a), General Tax, Water Tax, Fire Brigade Tax and Conservancy Tax levied or leviable by the Municipality or any competent body or authority."
3. ' Clause 3(a) also provides as under:-- ' To pay and discharge, except hereinabove provided in clause 2(b), ground rent and property tax levied or leviable now or hereafter, by the Excise and Taxation Authority or Provincial Government or any competent' authority or body or payable to any superior landlord if any, and if the Company pays or is required or is compelled to make payment on these accounts by any process of law or otherwise the Company shall be entitled to deduct the amount so paid from the rent or otherwise recover it from the lessor."
4. ' The appellant's mother, by gift deed dated 31-12-1979 gifted the property to the appellant. The appellant and her mother informed the respondents of this gift/transfer by their letter dated 12-1- 1980 and the respondents by virtue of provisions of law succeeded M/s. Dawood Petroleum Ltd. And became the tenants of the property. Under clause 4 of the letter dated 8-1-1971, it was agreed between the parties that the property tax will be paid in the ratio of 10:23 by the landlady and tenants respectively.
5. ' The mother of the appellant, by her letter dated 12-1-1980, took the responsibility to pay the property tax of her share up to 1979-80 whereby the appellant became liable to pay property tax of her share i.e. 10:23 of the property tax, with effect from 1980-81. There appellant by her letter dated 12-1-1980 further advised the respondents to deposit the rent in her account No.4917-3 with Habib Bank Limited, Numaish Branch, Karachi. The respondents agreed to it and started depositing rent in the said account.
6. ' The appellant filed eviction application being Rent Case No.2866 of 1985 against the respondents under section 15(2)(ii) of the Sindh Rented Premises Ordinance, 1979 on the ground of default. The appellant averred in her eviction application that the respondents have committed defaults. The details of defaults are as follows:--
(a) The respondents failed to deposit Rs.2,500 the rent for the month of July 1981.
(b) The respondents committed default by not depositing rent due within time for the months of May and June, 1982 and by making short payment by Rs.250 for the month of April, 1982. However, the respondents deposited Rs.6,250 for the said period on 3-7-1982 in the appellant's abovesaid account.
(c) The respondents again committed default by not paying rent for the months of May, June, July and August, 1983, whereas the respondents deposited only Rs.2,082 on 13-8-1983 in the appellant's account and neglected to pay Rs.9,918 towards the rent for the said period.
(d) The respondents again failed and neglected to deposit rent in the months of April, May, June and July, 1984. However, the respondents sent a pre-dated cheque only for Rs.2,136 to the appellant's bank on 19-7-1984 which was returned to the respondents by the appellant's bank under her instructions as the respondents did not make payment of the rent due within time.
7. ' The respondents did not make payment of rent to the appellant, instead they had filed Miscellaneous Rent Application No.2114 of 1984. In these circumstances, the appellant served a legal notice dated 16-7-1984 through registered A.D. And the respondents sent a reply contending therein that they had deducted the appellant's share of property tax paid to the Excise and Taxation Department. The appellant sought eviction of the respondents on the sole ground of default.
8. ' The respondents contested the eviction application wherein they denied the allegation of default.
9. The respondents contended that in view of the registered lease deed, all promises, correspondence and negotiations merged in the terms and conditions of the said lease and the terms of lease deed override the terms of clause 4 of letter dated 8-1-1971. The respondents contended that they have not committed any default. The respondents prayed for dismissal of the eviction application.
10. ' The appellant filed affidavit-in-evidence of her father and attorney, Mirza Jawwad Baig. The respondents filed affidavit-in-evidence of their Senior Executive Legal and duly constituted attorney, Murtaza Hussain. They were cross-examined by the learned counsel of the respective parties.
11. ' On the pleadings of the parties, the Controller framed the following issues:-- "(1) What amounts of property tax were to be paid by the opponent in addition to rent of Rs.3,000 and whether the opponents defaulted in payment of rent as alleged?
(2) What should by the order?"
12. ' The Controller, on assessm ent of the evidence adduced by the parties, came to the conclusion that the first default relates to July, 1981 and May, June and part of April 1982 i.e. Beyond three years from the date of presentation of application on 7-9-1985 which cannot be enquired into as for all practical purposes, this claim of default is deemed to have been waived by the appellant. He came to the conclusion that the terms as agreed in the lease deed dated 26-5-1972 would prevail upon any offer or agreement preceding it. In that view of the matter, he found that letter dated 8-1-1971 cannot override the terms of lease deed. He also found that no default could be said to have been committed so as to warrant eviction. In view of the findings on issue No.1, the application was dismissed vide order dated 5-7-1987.
13. ' The appellant abovenamed, being aggrieved by order dated 5-7-1987 of 1st Senior Civil Judge & Rent Controller, Karachi West has filed the present appeal on the grouhds mentioned in the memo.
14. Of appeal.
15. ' Mr. Raja Haq Nawaz, learned counsel appearing for the appellant raised the following contentions:--
(1) The remedy barred by the Law of Limitation does not by itself end the right to which remedy relates.
(2) The appellant has established default.
16. ' On the other hand Mr. Muhammad Anis, learned counsel appearing for the respondents, supported the impugned order. He submitted that the respondents have not committed default.
17. ' I now revert to the first contention of Mr. Raja Haq Nawaz that the remedy barred by the Law of Limitation does not by itself end the right to which remedy relates. This point was considered by the Hon'ble Supreme Court in a recent case reported in PLD 1990 SC 681 in which it was held as under:- - "The overall conclusion would be that time-barred rent does not preclude landlord for the enforcement of his right for eviction of his tenant on the ground of default."
18. The above dictum is applicable to the facts of the instant case. The learned Controller observed that "the record shows that the eviction application was filed as late as on 7-9-1985 i.e. After 3 years of the above period of default and as such merits/demerits of this part of the issue cannot be enquired into as for all practical purposes, this claim of default is deemed to have been waived by applicant". The observations are uncalled for. It is only the remedy by way of recovery of the amount of rent is barred but the right itself continues to exist, and if there is some other remedy by which that right can be enforced, the Limitation Act cannot come in the way. In the above case of Perwaiz Akhtar, the Hon'ble Supreme Court held that "the rent due includes time-barred rent. The recovery of rent and eviction of tenant are two distinct cases. It is a different matter that a landlord cannot recover the amount due to lapse of time but the liability would not be extinguishable. An action to recover rent in a Court of law may not be available but eviction of tenant on the ground of default will still be available to landlord. A tenant is entitled to retain possession of premises on certain conditions including the payment of rent. Once it is established that he has defaulted in the payment of rent, he loses his right to occupy the premises. A default connotes an element of negligence and failure of the tenant to fulfil his obligation under the law".
19. ' The learned Controller held that the appellant failed to act promptly by making an applicatiot to the Controller for evicting the respondent and, therefore, by her conduct, the appellant would be deemed to have waived her right to make such application for eviction of the respondents. `Waiver' precisely means to abandon or relinquish, a known right by an express declaration or by conduct. In Shaukat Ali v. Sakhawat Hussain (1984 CLC 34), a learned Single Judge while following a case of Muhammad Saleh v. Muhammad Shafi (1982 S.C.M.R.33) observed as follows:- "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." A persual of this case would show that in order to constitute waiver, something more than mere inaction or delay in asserting one's right would be necessary. Therefore, mere failure to file eviction application for eviction cannot be said to give rise to any 'Waiver' by conduct. In this view of the matter, the observations of the Controller are set aside.
20. ' Mr. Raja Haq Nawaz contended that the respondents committed default in payment of rent for the month of July, 1981 and by deducting excess amount of Rs.9,809.27. His submission is that the total amount of property tax comes to Rs.32,910 out of which the appellant's share at 10:23 comes to Rs.9,972.73 only. However, the respondents instead of deducting Rs.9,972.73 illegally deducted Rs.19,782 (Rs.9,918 from the rents of the months of May, June, July and August 1983 and also Rs.9,864 from the rents of April, May, June and July 1984). According to the appellant, the respondents deducted an excess amount of Rs.9,809.27 from the appellant illegally, as such the respondents again failed and neglected to pay rent due for more than three months to the appellant and have thus committed default.
21. ' The respondents denied that the ratio of liability of property tax payable by the appellant and the respondents is 10:33 or 10:23 with effect from 1980-81. The respondents submitted that a sum of Rs.16,440 was paid by them towards the property tax for the years 1982-83 and 1983-84 on 3-4- 1984 and the share of the appellant was adjusted/deducted against the rent for the tenancy months of April, May, June, July and August 1984 and the balance amount of Rs.2,136 was sent to the appellant's account vide Cheque No.48280 dated 1-7-1984 and then the rent for the tenancy period 15-7-1984 to 14-8-1984 was sent to the appellant's account vide cheque dated 31-7-1984 and as such there is absolutely no discrepancy of default as alleged by the appellant. The allegation of default for the month of July, 1981 as alleged in para. 10 of the application, is categorically denied.
22. ' Mirza Jawwad Baig, father and attorney of the appellant stated in sub-para (1) of para. 7 of the affidavit that the respondents failed to deposit Rs.2,500 the rent for the month of July, 1981. In support of this plea, letter dated 20-12-1984 written, by Habib Bank Ltd. (Ext.A-8) was annexed to the affidavit-inevidence. He also annexed statement of account (Ex.A-9). To a suggestion in cross- examination, he replied that "it is incorrect to say that no default was committed in respect of July, 1981".
23. ' The respondents filed affidavit-in-evidence of their Senior Executive Legal and duly constituted attorney. In para. 2 of the affidavit, he stated that "I say that the opponent company has not committed any default for the month of July, 1981". Again in para. 16 of the affidavit, he stated "I say that there is no default for the month of July, 1981 as alleged. The rent was remitted to the account of the applicant in July, 1981". To a suggestion in cross-examination he replied that "it is incorrect to say that we did not pay the rent for July, 1981". To another question, he replied that "I have not produced the statement of the bank regarding such payment in account of applicant (i.e. For July, 1981)".
24. ' It is advantageous at this stage to reproduce the principle laid down by the Hon'ble Supreme Court in the case of Allah Din v. Habib (PLD 1982 SC 40) which reads as follows:-- "It is no doubt correct to say that the initial burden of proof lies upon the landlord to establish that the tenant has not paid or tendered rent due by him as required by section 13(2)(i) of the Sindh Urban Rent Restriction Ordinance, 1959, but it must be appreciated that non-payment of rent is a negative fact, therefore, if the landlord appears in Court and states on oath that he has not received the rent for a certain period, it would be sufficient to discharge the burden that lies under the law upon him and the onus will then shift to the tenant to prove affirmatively that he had paid or tendered the rent for the period in question. The principle thus stated was held to apply to the case of a transferee for value who has paid his money in good faith and without notice of the original contract under section 27(b), Specific Relief Act, 1877, in the case of KhairunNisa v.
25. Muhammad Ishaq PLD 1972 SC 25."
26. Applying the above principle to the facts of this case, it is clear to me that upon asserting in the evidence that the respondents had not deposited the rent for the month of July, 1981 in her account maintained in Habib Bank Ltd.. Numaish Branch, the appellant had successfully discharged the burden of proof by producing Bank's letter (Ex.A-8) and statement of account for the relevant period as Ext. A-9 ,and the burden was shifted to the respondents. It is, therefore, the evidence of the appellant consisting of oral as well as documentary evidence and the evidence of the respondents consisting of oral assertion, the appellant stating that the rent had not been deposited in her account and the respondent's Executive stating that the respondents sent the cheque to the appellant's Banker but no counterfoil or bank statement were produced in evidence, the issue could only be decided on the ground that the tenants had failed to discharge the onus to prove the factum of payment. The conclusion is that the appellant has succssfully established that the respondents had committed default in payment of rent for the month of July, 1981.
27. ' The appellant had pressed the default in payment of rent for more than three months. The case of the appellant as set out in the eviction application was that under clause 4 of letter dated 8-1-1971 (A-1), it was agreed between the parties that the property tax will be paid in the ratio 10:23 by the landlady and tenants respectively. The appellant asserted in her application as well as her father stated in his affidavit-in-evidence that the respondents by their letters dated 1-8-1978 (Ext. A-4) and 20-1-1980 (Ext. A-5) have admitted that the liability of the landlady, is at the rate of 10% as per agreement. Whereas the case of the respondents as pleaded in their written statement is that in view of the registered lease deed dated 26-5-1972 which resulted in binding contract, all premises, correspondence and negotiations merged in the terms and conditions of the said lease and the terms of the said lease override the terms of clause 4 of the letter dated 8-1-1971.
28. ' In Ottoman Bank of Nicosia v. Ohanes Chakarian (AIR 1938 PC 26), it was held as under:-- "It is obvious that if the contract is clear and unambiguous, its true effect cannot be changed merely by the course of conduct adopted by the parties in acting under it. Such conduct if it is clear and unambiguous may in certain events raise the inference that the parties have agreed to modify their contract, but short of that such conduct cannot have the effect of changing the operation of an unambiguous agreement, though it might possibly in special cases support, along with other appropriate evidence, a claim for rectification."
29. ' The above principle is applicable in the instant case. The parties have followed the ratio 10:23 from 1971 up to 1980.
30. ' It has come on record that clause 4 of the letter dated 8-1-1971 provides that 10% of the taxes (KMC/Excise/KDA) will be borne by the landlady and the balance 23% will be paid by the respondents. Clause 2(b) of the lease deed dated 26-5-1972 provides that the respondents shall pay except hereinafter provided in clause 3(a) general tax, water tax, fire brigade tax and conservancy tax levied or leviable by the Municipality or any competent body or authority. Despite this clause, the landlady has been paying 10% of the taxes and the balance 23% have been paid by the respondents. The respondents did not lodge any protest. But on the contrary sent. Two letters dated 1-8-1978 (Ext. A-4) and dated 20-1-1980 (Ext.A-5). The respondents had not lodged any objection with the landlay in this connection. The respondents by wilful omission to protest against the ratio of 10:23 caused the landlay to believe that she has to pay only ten per cent. Of the taxes.
31. The landladly, in the circumstances, would not have acted in the manner, she did i.e. Sharing ten per cent. Taxes. Had she been informed of it, she would have easily paid the taxes in accordance with clauses 2(b) and 3(a) of lease deed dated 26-5-1972. I, therefore, hold that the respondents' wilful abstention from making any protest or taking any action during the period is sufficient to constitute it as representation by conduct and it has acted as estoppel against them in terms of section 115 of the Evidence Act, 1872 or Article 114 of the Qanun-e-Shahadat, 1984.
32. ' The respondents in their affidavit-in-evidence stated that the liability of the landlay was 60% and the liability of the lessee was 40%. The respondents further stated that the liability of the lessor is not less than 40% of property tax and betterment tax ' It is an admitted position that the propery tax for the years 1980-81, 1981-82, 1982-83 and 1983-84 comes to Rs.32,910. According to the ratio of 40:60, the share of the appellant comes to Rs.13,164.
33. The rent for the months of May, June, July and August 1983 comes to Rs.12,000. Out of Rs.13,164 is to be adjusted towards the rent for the months of May, June, July and August 1983. After adjusting.
34. Rs.1.164 remain as the balance. Rent of April is Rs.3,000 and after adjusting Rs.1,164 the balance comes to Rs.1,836 which was to be paid by the respondents. As against Rs.1,836, Rs.2,082 were deposited by the respondents on 13-8-1983. A sum of Rs.246 remains payable by the respondents.
35. The rent for the months of April, May, June and July, 1984 comes to Rs.12,000. As against that amount of Rs.246 and a predated cheque for Rs.2,136 was sent to the appellant's bank on 19-7- 1984. Even if these two figures are added, still there was a deficit of Rs.618 towards the rent of April.
36. The respondents did not deposit rent for the months of May, June and July and deficit in rent for April which is Rs.618. The total comes to Rs.9,618. In that view of the matter, the respondents committed default for more than three months.
37. ' In the light of the aforesaid, I have reached the conclusion that the impugned order of the Controller is not sustainable as no effort was made by him to examine the ratio of 40:60 as advanced by the respondents. I therefore find force in the contention made on behalf of the appellant that the Controller did not proceed in accordance with law in refusing to go into the ratio of 40:60. The conclusion is that the appellant has successfully established that the respondents had committed default in the payment of rent and are liable to be evicted from the premises.
38. ' The case in hand was governed by the provisions contained in section 15 of the Sindh Repted Prmises Ordinance, 1979, upon the repeal of Rent Restriction Ordinance, 1959, on and from 21-1-1979.
39. Subsection (2) of section 15 provides that the Controller shall make an order directing the tenant to put the landlord in the possession of the premises within such period as may be prescribed in the order, if he is satisfied that-- "(ii) the tenant has failed to pay rent in respect of the premises in his possession within fifteen days after the expiry of the period fixed by mutual agreement between the tenant and landlord for payment of the rent, or in the absence of such agreement, within sixty days after the rent has become due for payment;'
40. ' In order to highlight the distinction in the language and phraseology used in the above-quoted subsection (2) the parallel provision contained in section 13(2) (i) of the repealed Ordinance is also reproduced hereunder:-- "13. Eviction of tenant.--
(2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is field that-- ' any such agreement, within sixty days from the period for which the rent is payable;"
41. A bare reading of the two subsections will make it clear that the provision of eviction in the present Ordinance, where the Controller is satisfied that the tenant has committed default shall make an order directing the tenant to put the landlord in possession of the premises within a prescribed time. The parallel provision in the repealed Ordinance provides that if the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied that the tenant has not paid or tendered rent due by him, may order eviction of the tenant. The intention of the Legislature in bringing about this change is meaningful and is to be given effect accordingly.
42. ' It is clear to me that the Ordinance interferes with the landlord's right to property and freedom of contract only for the limited purpose of protecting tenants from miseries of the landlord's power to evict therein, in this scarcity of accommodation, by asserting his superior rights in property or trying to exploit his position by extracting too high rents from helpless tenants. The object was not to deprive the landlord altogether of the rights in property which have also to be respected.
43. Another object was to make possible eviction of tenants who fail to carry out their obligation to pay rent to the landlord despite opportunities given F by law in that behalf. Thus, section 15(2)(ii) of the Ordinance makes it obligatory for the Controller to make an order directing the tenant to put the landlord in possession of the premises when its conditions are satisfied. If the tenant has failed to pay rent, whatever may be its cause, the landlord acquires a right under section 15(2)(ii) to get an order of eviction. But where the conditions of section 15(2)(ii) are not satisfied, there is further opportunity given to the tenant to protect himself against eviction, He can comply with the conditions set out in section 15(2)(ii), and defeat the landlord's claim for eviction. If, however, he does not fulfil those conditions, he cannot claim the protection of section 15(2)(ii) and in that event, there being no other protection available to him, an eviction order would be passed against him. It is difficult to see how by any judicial valour discretion excerisable in favour of the tenant can be found in section 15(2)(ii) even where the conditions laid down by it are satisfied to be strictly confined within the limits prescribed for their operation. I am of the view that section 15(2) does not create any discretionary jurisdiction in the Controller. It provides protection to the tenant on certain conditions and these conditions have to be strictly observed by the tenant who seeks the benefit of the section.
44. ' Mr. Anis submitted that discretion has to be exercised in favour of the respondents. Possession of the premises from the tenant on the termination of the lease deed must prevail and the tenant cannot resist the landlady's claim for possession and the Controller as well as this Court has no discretion not to pass an order of eviction to the landlady.
45. ' In order to appreciate the contention, it is necessary to reproduce clause 4(d) of the lease deed which reads as under:-- "(d) If any rent shall be 60 days in arrear (whether legally demanded or not) or if the Company shall omit to perform or observe covenant or condition on the part of the Company herein contained and shall continue for 30 days after notice thereof to the Company in writing, the lessor may re-enter forthwith upon the demised land or upon any part thereof and the lease shall thereupon determine but without prejudice to any claim which either of the parties hereto may have against the other in respect of any breach, non-performance of any of the covenants and conditions herein contained."
46. ' A perusal thereof would show that if any rent shall be 60 days in arrears (whether legally demanded or not) or if the Company shall omit to perform or observe covenant or condition on the part of the Company herein contained and shall continue for 30 days after notice thereof to the Company in writing, the lessor may re-enter forthwith upon the demised land or upon any part thereof and the lease shall determine but without prejudice to any claim which either of the parties thereto may have against the other in respect of any breach, non-performance of any of the covenants and conditions herein contained.
47. ' The position of the respondents is that at the date of notice, the respondents were in arrears of rent. The respondents did not tender the arrears of rent. In my view, it is erroneous to say that even where the tenant is not entitled to protection and where he fails to perform the conditions under section 15(2)(vii), the Controller has discretion to refuse an eviction in a case where the landlord has terminated the lease or tenancy by a notice as provided by clause 4(a) of the lease deed. The landlord is entitled to an order of eviction if he has terminated the lease by a valid notice to quit.
48. Owing to the exigencies of times that right is restricted by the specific provisions in the Ordinance.
49. Unless the case of the tenant falls under them, the tenant is not entitled to protection and unless the tenant's case falls under them and the tenant is protected thereunder, there can be nothing to prevent the landlord to obtain eviction order which he is entitled to under the law of landlord and tenant.
50. ' I may mention that the learned counsel for the parties have cited a number of decisions on these points. For these propositions, it is not necessary to cite decisions although I have been taken through the case-law by counsel on both sides. Months' time from today to hand over the vacant possession of the premises to the appellant subject to the condition that the respondents will continue depositing the agreed monthly rent regularly as per tentative order of the Controller.