QAISAR AHMAD HAM1DI, J.- This appeal filed under section 21 of the Sind Rented Premises Ordinance, 1979, raises a short point which may possibly be one of some practical interest.
2. The appellant is the tenant of respondent in respect of an open plot bearing No. RB-11/13, situated at Gawah Lane No.3, Ratan Talao, Karachi, at a monthly rent of Rs. 230/- The tenancy is regulated by an agreement dated 1.5.1984. In April, 1985 the respondent filed an application under section 15 of the Sind Rented Premises Ordinance, 1979, seeking the ejectment of the appellant on the ground that he needed the premises for his own occupation. The appellant filed his written statement in those proceedings wherein it was disclosed that he was depositing monthly rent in the office of Rent Controller in terms of section 10 of the Sind Rented Premises Ordinance 1979. It was then revealed that the appellant defaulted in payment of rent from April, 1985 as he did not pay or tender rent within the prescribed period. On 11.2.1988 the respondent filed an application under section 15 of the Sind Rented Premises Ordinance, 1979, seeking the eviction of the appellant on the ground of default in payment of rent.
3. The appellant resisted his eviction on various grounds. He has disowned the agreement of tenancy dated 1.5.1984, by stating that his signatures were obtained on it fraudulently. It was further pleaded by him that the respondent avoided to receive rent from him for the month of April, 1985 and consequently he remitted the same by money order, which was, however, refused. He again sent rent for two months, viz., April and May, 1985, by money-order on 4.6.1985, but that too was refused and it was thereafter that he stated depositing the rent in the office of the Rent Controller.
The appellant had also raised the plea of waiver.
4. The parties went to trial on the following issues:-
(i) Whether there is relationship of landlord and tenant between the parties?
(ii) Whether wilful default has been committed in payment of rent for the months of April and May 1985, and for subsequent months the deposit was not regular?
(iii) What should be the final order?
5. The respondent examined himself (P.W-1), while the appellant examined himself (D.W-1), Altamash (D.W-2), Bashir Ahmad (D.W-3), and Amir Ahmad (D.W-4).
6. On the assessm ent of evidence, both oral as well as documentary, the learned Rent Controller decided both the issues against the appellant and consequently directed his ejectment from the demised premises. This order dated 30.3.1991 is the subject matter of this appeal.
7. Mr. Zafar Hadi Shah, learned counsel for the appellant has referred to several points but eventually confined his arguments in the main to the following contentions: -
(i) That the tenancy was regulated by an oral agreement and consequently the appellant was entitled to a grace period of sixty days after the. Rent has become due for payment within the meaning of clause (ii) of Sub-section (2) of section 15 of the Sind Rented Premises Ordinance, 1979.
(ii) That since the respondent avoided to accept the rent, the rent for the month of April 1985 was sent through money-order on 5.5.1985, and the rent for the months of April and May 1985 was sent through money-order on 4.6.1985, well within the grace period and thereafter the rent was being deposited in the office of Rent Controller in terms of section 10 of the Sind Rented Premises Ordinance, 1979, and consequently no default was committed by the appellant.
(iii) That the respondent having accepted the arrears of rent cannot be heard to say that he accepted the rent unwillingly, and thus the default, if any, was waived by him.
8. The perusal of the record shows that the appellant is the tenant of disputed plot since long. He was paying rent to the father of respondent and after his death tp the mother of respondent and finally to the respondent himself. It was, however, the case of the respondent that the appellant entered into an agreement of tenancy with him on 1.5.1984 and thereafter their relations were regulated by this agreement. The appellant has seriously questioned the validity this agreement which is on record (Annexure C). Admittedly the agreement is not attested by the Controller or any Civil Judge or First Class Magistrate, as required by section 5 of the Sind Rented Premises Ordinance, 1979, and therefore, the conditions thereof cannot be enforced, with the result that the tenancy is governed by an oral agreement.
9. Sub-section (1) of section 10 of the Sind Rented Premises Ordinance, 1979, provides as follows:- "The rent shall, in the absence of any date fixed in this behalf by mutual agreement between the landlord and tenant, be paid not later than the tenth of the month next following the months for which it is due."
It, therefore, follows that the rent for the month of April 1985 was payable by 10th of May, 1985 and after allowing the grace period of sixty days the same could have been paid by 10th July, 1985. The appellant tendered this rent through money-order (Annexure A/2) on 5.5.1985, which according to him was refused by the respondent. Likewise the rent for months of April and May 1985 was sent through money order (Annexure A/l) on 4.6.1985, which too was refused. It is also the case of the appellant that thereafter he stated depositing the rent in the office of Rent Controller. The respondent has denied the receipt of rent through money orders and, therefore, it was contended on his behalf that the examination of postman was necessary. In order to meet this objection the appellant has put Amir Ahmad (D.W-4) the postmaster of Eidgah Night Post Office in the witness box, who has proved the postal receipts dated 5.5.1985 and 4.6.1985 be stating on oath that they were issued from Eidgah Post Office Sub-section (4) of section 10 of the Sind Rented Premises Ordinance, 1979, again makes it clear that the written acknowledgment, postal money order receipt or the receipt of the Controller, as the case may be, shall be produced and accepted in proof ot the payment of the rent. Mr. Khalil-ur-Rehman's, learned counsel for the respondent has, however, contended that the examination of the postman to prove that the rent was actually offered to respondent who refused to accept it was necessary. The case of Gulzar Begum v. Mst. Sairah Bibi, reported in 1972 S.C.M.R. 251), certainly appears to lend some colour to this contention, but the observations made therein are not attracted to the facts of the present case on the face of Subsection (4) of section 10 of the Sind Rented Premises Ordinance, 1979. It is, therefore, clear that the appellant was not in arrears of rent when the application for his eviction was filed.
10. The plea of waiver on behalf of the appellant is devoid of any force. A litigant's conduct might amount to waiver when it is coupled with an estoppel, but it cannot be said that by accepting the arrears of rent deposited in the office of Rent Controller the landlord has waived his right to enforce ejectment on the ground of default in payment of rent. At any rate this contention has got only academic value now.
11. Having regard to the above factual and legal position, the impugned order cannot be sustained and is set aside. The application for ejectment filed by the respondent against the appellant is accordingly dismissed.
12. In the result the appeal is allowed, but the parties are left to bear their own costs.