1. These are two First Rent Appeals F.RA. No. 326/85 has been filed by the landlady and F.RA. No. 328/85 has been filed by the tenant. Both these Appeals arise out of an order dated 18-3-1985 passed by the learned Xth Senior Civil Judge/Rent Controller, Karachi in Rent Case No. 1385/75. I intend to dispose of these two appeals by this judgment.
2. Since these are two cross-appeals, instead of using the words appellant and respondent I will hereinafter mention them as landlady and tenant in order to avoid ambiguity.
3. On 7-5-1975, the landlady filed an application under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 for ejectment of the tenant from two shops in her tenancy on the grounds (i) default, (ii) impairing the value and utility of the premises and (iii) personal use of the landlady's husband and their children. The landlady's husband and Special Attorney examined himself only in evidence. The tenant's widow Dr. Surayya Matin examined herself and produced one witness in evidence only. The learned Rent Controller, by his aforesaid Order, allowed the application for ejectment in respect of one shop only on, the grounds of impairing the value and utility of the premises and for personal use of the landlady's husband. The landlady has now filed F.RA. No. 326/85 against not allowing the application for both the shops and also on the ground of default. F.RA. No. 328/85 has been filed by the tenant against the said Order.
4. Mr. Khalid Latif, learned counsel for the landlady, arguing the Appeal (F.RA. No. 326/85), submitted that the, learned Rent Controller has erred in giving his finding on issue of default against the landlady. He refers to paragraph. 4 of the affidavit-in-evidence of the husband and Attorney of the landlady, which mentions the several payments made late by the tenant in contravention of clause 4 of the Agreement of Tenancy, dated 7th April, 1963, which requires payment of monthly rent to be made in advance during the first week of each month. The exact details are reproduced as under:- - Date of receipt & deposit with the Bank (UBL)Cheque No. & dateFor the month ofAmount Rs.
5. 23-9-72 PAB437015 22-9-72Aug./Sept.72 1040 30-11-72 " 340864 29-11-72Oct./Nov.72 1040 10-1-73 341061 9-1-73 Dec.72 520 6-2-73 341563 6-2-73Jan.73 520 29-3-73 342467 28-3-73Feb./Mar.73 1040 8-5-73 342347 8-4-73April 73 520 15-6-73 341877 15-6-73May 1973 520 12-9-73 (CBL)434456 10-9-73Jul./Aug. 73 1040 12-12-73 CA582103 11-12-73Sept./Oct./Nov.731560 7-3-74 584968 6-3-74Dec./Jan.74 1040 22-4-74 018788 20-4-74Feb./Mar.74 1040 17-5-74 PAC 18745 16-5-74Apr./May.74 1040 2-7-74 PAC19187 27-6-74June 74 520 3-8-74 19563 31-7-74July 74 520 3-9-74 C407257 31-8-74August 74 520 16-10-74 407275 15-10-74Sept./Oct.74 1040 3-5-75 PAB 438493 29-4-75April 74 520 Learned counsel further submitted that the tenant was bound to adhere to the terms of agreement which, inter alia, provides that the rent shall be paid monthly in advance. Although the agreement executed between the parties expired in 1968, the condition of payment of rent in advance remained in vogue. Reliance is placed on Zarina Khawaja v. Agha Mahboob Shah (PLD 1988 SC 190), Mehro Mal v. Habibur Rahman Khan (PLD 1988 Karachi 240).
6. Learned counsel for the landlady, on the issue of default, placed his reliance on the cases, namely,
(i) Sayed Riaz A.I v. Shabbir Ahmed Khan (1971 SCMR 598), (ii) Amanat Khan v. Mst. Begum Jan and another (1979 SCMR 608), (iii) Abdul Rashid v. Saleh Muhammad (1980 SCMR 506), (iv) M/s. Tar Muhammad Janoo & Co. v. Taher A.I and others (1981 SCMR 93), and (v) Mrs. Alima Ahmed v. Amir A.I (PLD 1984 SC 32).
7. "In law the petitioner could not lead evidence in variation of the terms and conditions of the written agreement of lease (sections 91 and 92, Evidence Act). Moreover, the receipt of rent by the respondent for several months at a time showed that the landlord had condoned the default and not that he had consented to vary the terms and conditions of lease regarding payment of rent."
8. "Admittedly, no cash rent for the period from August, 1974 to December, 1974, was ever paid by the petitioner to his landlord. He failed to prove to the satisfaction of the Courts below that he was entitled to the adjustment of the rent due for this period in question towards the payment allegedly made to the mason for repairs to the house and in the shape of the bond of the value of Rs.100. On this finding therefore, it follows that even up-to-date the rent for this period in question was neither tendered nor paid to the landlord and this default on his part was wilful and contumacious. A fortiori the rent remitted for the subsequent period from January, 1975 to June, 1975 by money order in July, 1975 did not amount to a valid tendered rent without having cleared the arrears due for the period from August, 1974 to December, 1974. Moreover, he had failed to pay or tender the monthly rent within 60 days from the month for which the rent was payable and for this reason the tender of the arrears in lump sum in July, 1975 did not condone the default thus committed by him."
9. "It has been held time and again that in such cases the parties cannot contract themselves out of the provisions of the law on the subject namely, the West Pakistan Urban Rent Restriction Ordinance.
10. Similarly neither party can plead a practice which is contrary to the said law. Moreover, the mere fact that a landlord accepts a delayed payment of rent by the tenant on a number of occasions, cannot be said to have given rise to any practice whitling down the requirement of law that the rent has to be paid by the tenant by the 15th of every month."
11. "It is the duty of the tenant to pay or at least tender the rent to the landlord and he cannot be allowed to plead that the landlord did not make any effort to collect the rent. The mere fact that a tenant has made it a habit not to pay the rent regularly every month, and that the landlord has tolerated his default for some time and accepted the rent paid at irregular intervals cannot in any way, be deemed to have established a practice of payment of rent whenever the tenant pleases or affect the liability of the tenant to pay the rent unless the landlord comet and collects it. Nor does it absolve the tenant from paying the rent every month. A landlord's acceptance of the rent paid to him at irregular intervals does not in any way, show that he does not expect it to be paid regularly every month as the reason for receiving the delayed payment might be his decency, his desire to accommodate his tenant, his pre-occupation with his own work, his hesitation to go to. Courts of law or his reluctance to incur the expenses and hazards of litigation. The tenant cannot be allowed to take advantage of his own negligence or of his having taken advantage of deliberate non- payment of rent in time every month on the ground that the landlord has been. Accepting the same and argue that the same had given rise to a practice of the irregular payment of rent."
12. "That the respondent was clearly in default in paying or tendering the rents for April and May, 1970, and from October, 1970 to December, 1970. There was no plausible explanation for such default. He was, therefore, liable to ejectment."
13. On the other hand, learned counsel for the tenant submitted that he does not dispute the liability of the tenant to pay rent under the expired agreement of tenancy and that the rents for several months, as detailed in the affidavit-in-evidence on behalf of the landlady, was paid by cheques by depositing the same in the landlady's bank account with certain amount of delay. The late payments were, however, accepted by the landlady, without the slightest objection, and therefore, it was not open to the landlady to seek ejectment of the tenant on the basis of such late payments.
14. The delay in payment, as submitted by the counsel, stood condoned. Reliance is placed by Mr. Rehmany on Alif Din v. Khadim Hussain (1980 SCMR 767), wherein it was observed that:-- "The fact that the landlord had in the past been accepting the rent after the due dates does not mean that the relevant terms in the lease deed had become inoperative. It only meant that the respondent had condoned the default in that instance and could not plead it as a ground for ejectment of the petitioner."
15. Learned counsel further submitted that it was a practice of the landlady to accept rent in lump sum as is evident by the statement of payments of rent. Reliance is placed by him on 1989 SCMR 403, wherein it was observed that:-- "We find no ground either in law or on merits is made out for interference with the impugned judgment of the High Court, for, the finding of fact recorded by the two Courts below that it was the practice of the petitioners to collect the amount in lump sum has been based on the admitted documents ------which clearly prove payment of rent on yearly basis:"
16. Reliance is also placed on Abdul Aziz v. Abdul Ghani (1986 SCMR 1857), wherein it was observed that:-- "There is sufficient evidence on the record that it was the landlord who had adopted a practice of receiving the arrears of rent in lump sum. The perusal of the details of the receipts covering the period July, 1974 to May, 1978 given in the judgment of the High Court shows that on two occasions the landlord received the arrears of rent after eight months, on one occasion after a period of more than two months without any objection. This practice was in vogue from the very beginning of the tenancy. Though the rent had not been paid by the respondent to the landlord as required under the law but the conduct of the petitioner himself was such which furnished sufficient justification to the appellate Court to exercise its discretion against him in dismissing his eviction petition:"
17. Except for the principles laid down in the cases cited by Mr. Khalid Latif, as also admitted by him during the course of arguments, they are distinguishable on facts inasmuch as in the said cases the rent was due and payable by the tenant before filing the application for ejectment whereas in the instant case there was no rent due and payable on the date of filing ejectment application.
18. I have given my anxious thought to the question whether the tenant, in the circumstances of the case, can be ejected on the ground of the alleged default. Admittedly, the agreement of tenancy, though expired, continued in force, with a liability of the tenant to pay rent at the same rate and time as held by. The Hon'ble Supreme Court in Zarina Khawaja's case. The liability to pay the rent will, therefore, be determined in accordance with the agreement, as to the rate of rent and the date of payment. But the consequence of such non-- payment will be subject to the law of the land. If the tenant agrees to pay rent in advance, he continues to be bound by the said term of tenancy. If he fails to pay or tender rent due by him in respect of the rented premises within 15 days after the expiry of the time fixed in the agreement of tenancy, he is liable to be ejected. In the instant case, the tenant had agreed to pay monthly rent in advance in the first week of the month for which it was due. Thus, he is bound to pay the same accordingly and if he fails to pay within 15 days after it has fallen due under the agreement as also provided in section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, the Controller may make an order, directing him to put the landlord in possession of the rented premises. In the instant case, the tenant was inducted into possession of the premises under agreement dated 7th April, 1963. He is alleged to have made late payments in respect of several months, with intervals, as detailed in the affidavit. There is some delay of several weeks in making such. Payments, which were, however, accepted by the landlady without the slightest protest, objection or reservation or even showing the sign of displeasure over such late payments. Clause (10) of the agreement provided that "in case of breach of any condition of tenancy, the lessee shall be liable to ejectment irrespective of the terms' hereinbefore contained, after having been given 15 days' notice to remedy the complaint of the lessor". Admittedly no such notice was given; not even an oral complaint was ever made to the tenant about late payments on 18 occasions during the entire period of 144 months asking him to make payments in accordance with the agreement, "to remedy the complaint".
19. Learned counsel for the tenant pleads condonation on the part of the landlady and places his reliance on the case of Najmuddin v. Zamir Ahmed (PLD 1982 Kar.188), wherein it was observed that:-- "Therefore, it cannot be said that the appellant committed wilful default in payment of rent for the months of March, April and May, though, no doubt, that the respondent had not paid the rent for the said months in accordance with law by sending the same by money order or by depositing the same in Court".
20. Learned counsel also placed his reliance on the following observations of Naimuddin, J. (now Judge, Supreme Court) in the aforesaid case: "As regards the submission that there could be no waiver or acquiescence against the statute it may be stated that if law confers a right or advantage on a person exclusively for his own benefit and it does not affect the rights of another person and is not against the public policy, then such a right can be waived and any liability incurred by breach of such provisions may not be enforced and acquiesced."
21. Reliance is also placed by him on the case of K.C. Mamoo v. Mrs. Badrunnisa (1985 CLC 332), wherein, inter alia, it was held "that the respondent landlady have waived right by accepting rent from the tenant". The learned Single Judge in the aforesaid case, in fact, observed that "I am of the view that it is established that the respondent waived the conditions by accepting rent from him".
22. On the other hand, Mr. Khalid Latif, learned counsel for the landlady has placed his reliance on the case of Muhammad Saleh v. Muhammad Shafi (1982 SCMR 33), wherein on the question or waiver, it was observed 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" ......
23. Even otherwise mere inaction or allowing an opportunity to pass by does not necessarily amount to waiver because when, for instance, a tenant consistently fails to pay rent, being aware of his obligation to pay it, or where there is delay by the landlords in filing an ejectment petition out of decency to the tenant or hesitates in going to the Court, or for any other reason, the tenant 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 indulgence shown by one of the parties does not constitute estoppel or waiver. Omission to enforce one's legal right strictly cannot give rise to an inference that the right has been abandoned." '
24. Payment of rent is a matter of contractual obligation. To enforce that obligation, the concept of waiver and condonation cannot thus be ruled out. In Black's Law Dictionary, waiver has been defined 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 is 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. The renunciation, repudiation, abandonment, or surrender of some claim, right, privilege, or of the opportunity to take advantage of some defect, irregularity. A doctrine resting upon an equitable principle, which Courts of law will recognize . ..........
25. 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 ....
26. A waiver is implied where one party has pursued such a course of conduct with reference to the other party as to evidence an intention to waive his rights or the advantage to which he may be entitled, or where the conduct pursued is inconsistent with any other honest intention than an intention of such waiver, provided that the other party concerned has been inducted by such conduct to act upon the belief that there has been a waiver, and has incurred trouble or expense thereby. To make out a case of implied "waiver" of a legal right, there must be a clear, unequivocal and decisive act of the party showing such purpose, or acts amounting to an estoppel on his part".
27. Besides, I may also refer to section 51 of "(sic)" which remained as Law in force in Turkey till 1926. A Qadi of Hims, Khalid Al-Atasi, in his Sharh of the same in (Vol. I) writes that: "sometimes the lapsing of a right capable of being lapsed, in express and sometimes it is incumbent and sometimes it is by indication or by implication except in the case of a right which under the (Shariah) is not liable to be lapsed". .
28. Thus, the waiver or condonation of a right, legally capable of being waived or condoned may either be made expressly or it may be inferred from the conduct of the party and all other attending circumstances of the case.
29. After considering the facts and cited law, I do not agree with the learned counsel for the tenant that the acceptance of rent on the aforesaid occasions constitutes a practice, so as to change the terms of agreement or the law, but I do agree with hint that it amounts to condonation; with the result that the term of agreement of tenancy as to the payment of rent in advance, as agreed between the parties, remains binding on the parties. Since the landlady had knowledge of delay in payments, but failed to take action under clause 10 of the agreement, the tenant is not liable to be ejected on the ground of the said alleged default.
30. As regards the second ground of ejectment viz. Impairing the value and utility of the premises in question against which Appeal No. 328/85 has been preferred by the tenant, Mr. H.A. Rehmani submits that the landlady has failed to prove the same. He further submits that the tenant got another shop premises in 1969 under a separate agreement of tenancy from another landlord. The said premises are situate just in the rear of the shops in question. The tenant, as alleged, demolished the dividing wall between the premises in question and the other one, with the consent of the landlady. The landlady and her, husband gave such consent when they came to the tenant's clinic in connection with their medical treatment. In any case, it is submitted by him that the tenant has produced an Architect as an expert witness, wherein it has been opined by him that the removal of the said dividing wall did not impair the utility and value of the premises.
31. On the other hand, Mr. Khalid Latif, learned counsel for the landlady submits that in the affidavit of the landlady's Attorney and husband it has been clearly stated in paragraph 7 that the tenant has committed acts, which have materially impaired the value and utility of the landlady's shop. It seems advantageous to reproduce paragraph 7 of his Affidavit, which reads as under:---- "The opponents took shop/s adjoining the back side of the applicant's shops. The applicant's shop and the shops on the back side which adjoin each other had a common dividing wall. The applicant's shops are already completely built when rented out to the opponents while the back side was lying vacant. However, after some time the said back side shops were built up and were taken on rent by the opponents. Even at that time the common wall was very much there. However, the opponents without the permission, approval or consent of the applicant demolished the back side wall of the applicant's shops and joined her shops with those on the back side belonging to someone else with the result that the applicant's shops and the shops on the back side thereof now constitute a single premises having opening on the main Tariq Road, as well as towards back- lane. This has obviously impaired the value and utility of the applicant's shop. I file herewith a drawing showing the location of the said applicant's shops and those on the bark side thereof and the removal of the wall on the back side of the applicant's shops, as Exh.
10. The opponents also removed without the permission, approval or consent of the applicant the supporting wall beneath the mezzanine floor and have thereby weakened the structure. The opponents have also removed the iron shutters of the shops and have replaced them with wooden doors. All this was also done without the permission, approval or consent of the applicant,"
32. It appears that the tenant, in her affidavit of evidence in rebuttal to the above affidavit, has referred to the removal of the rear wall only and that too with permission of the landlady, but does not seem to have adverted to the supporting wall beneath the mezzanine floor and the removal of the iron shutters in the shop in question and replacing them with wooden doors. No doubt, the tenant has examined an Architect, as his witness, who has also produced his certificate issued by him, but it mentions the wall under mezzanine floor only. Even if it is taken to be a case of consent, as submitted by the counsel for the tenant, it will be relatable to the removal of the rear wall and not to the removal of the wall under the mezzanine floor or replacement of the iron shutters with the wooden doors. As regards the diminishing value and utility, the removal of the wall under the mezzanine floor and the iron shutters having not been denied by the tenant, will be deemed to have been proved and I find no justification to interfere with the findings of the learned Rent Controller that the value and utility of the shops in question has been impaired.
33. As regards the third ground of eviction viz. Personal need of the landlady's husband and her children, the learned Rent Controller has given his finding in the affirmative by holding that the landlady's husband's requirement of the premises for his business is bona fide. The relevant observation of the learned Controller on the question of personal need are reproduced as under:-- - "The premises is admittedly being used as a clinic, where the opponent has an established - medical practice. In my opinion if the opponent is rooted out from the premises that will affect her practice and also will come in the way of sick and disease who are accustomed to get treatment from the opponent's clinic. Moreover, the applicant has not given the details of the business, therefore, in my opinion one shop can be sufficient for the applicant to run a business.
34. Accordingly I hold that the applicant requires the premises i.e. Only one shop in good faith for the purpose of running business by her husband."
35. It has come in evidence that the husband of the landlady has retired from service, which has not been disputed by the tenant. Furthermore, the landlady has six sons, 3 of whom are unemployed.
36. Her son Nafisuddin, x B.Sc. Previously employed with M/s. Special Pakistan Steel, is now unemployed as the Company has been wound up (Exh. 9-A). Her second son Nasimuddin, who holds diploma in Mech. Engineering, has no place to work as admitted by the tenant in his cross-examination and that he goes out for repairing cars at the customers' places. Another son, who holds B. Coin.
37. Degree, is also jobless. The Rent Controller does not appear to have discussed the need of the landlady's children.
38. The learned Rent Controller has observed, as a reason for not allowing ejectment of both the shops that the landlady's husband has not disclosed the nature of business. This is a clear misreading of evidence. The husband/attorney, has stated in his evidence at page 35 (refer para. 6 of his affidavit) of the record, that he intends to carry on the business of General Merchandise. It further appears that the learned Rent Controller did not take into consideration the need of the sons as no affidavit was filed by tie sons of the landlady for whom the premises is also required. It is now settled law that the affidavit of the sons for whose use and occupation the premises is required, is not to be filed necessarily. Reliance may to placed on the case of Muhammad Sharif v. M. S. Sultan (1981 SCMR 844), Dilshad Muhammad v. Mst. Zubaida Begum (1981 SCMR 89:) and Arshad Umar and another v. Begum Nazrul Askari (PLD 1985 SC 38).
39. The learned Rent Controller, while dealing with the need of the landlady, has also observed about the established medical practice of the tenant and the inconvenience of the patients. This approach of the learn Rent Controller can hardly be said to be justified in law or in the circumstances of the case. The tenant continues to be-in occupation of the other two shops of similar accommodation as that of the landlady, situate on Plot Nos. C-30 ad C-32 just in the rear of the two shops in question, which, as stated by the learned counsel for the parties, are of the same area. In any case, the tenant is residing in a bungalow of 1000 sq. Yards, at a distance of about two furlongs n the same locality, which has now turned to be a commercial area. She may also carry on her practice there.
40. For the reasons aforesaid, I modify the finding of the learned Rent Controller on personal need and hold that both the shops are required bona fide by the landlady for running business by her husband and the children. In result, the Appeal filed by the landlady being F.RA. No. 326/85 is, as aforesaid allowed and the Appeal filed by the tenant being F.RA. No. 328/85 is dismissed. There will, however, be no order as to costs.
41. The tenant is directed to vacate the premises within 2 (two) months subject to payment of rent regularly in accordance with law.
42. Before parting with the matter, it may be observed that the landlady will be at liberty to claim cost of reconstruction of the 2 ways demolished and iron shutters replaced, by separate proceedings, if so advised.