1. ' This appeal under section 21 of the Sindh Rented Premises Ordinance (hereinafter called the Ordinance) is directed against an eviction order, dated 31-5-1991 recorded by learned Controller, Karachi-South in Rent Case No,203 of 1985 directing the ejectment of the appellant from the residential premises situated in Jameela Street near Saeed ManLil on the ground of default in payment of rent.
2. ' Deceased Mst. Hajra Bi, predecessor-in-interest of the respondents filed an ejectment application against the appellant from the demised premises on 6-3-1975 on the ground of default in payment of rent w,e,f, August, 1974 to November, 1974 and subletting the premises in favour of Zainulabedin.
3. She further added that the appellant had failed to pay the rent w,e,f, 1-1-1975. It was pleaded that Agha Noorullah husband of the appellant was the tenant of the respondent on monthly agreed rent of Rs,36 who died some times in July, 1974 where after the appellant being his widow claimed the tenancy by way of inheritance. She further added that a demand draft in the sum of Rs,180 being rent from August, 1974 to December, 1974 was sent to her by the appellant vide letter dated 7-11-1974 but as the said tender of rent was made after the commission of default in payment of rent she did not accept the same and returned it through her advocate's letter dated 2-12-1974 which was returned undelivered.
4. ' Appellant resisted the eviction application on both the grounds. She contended that the respondent had intentionally refused to accept the demand draft of Rs,116 2 Annas as rent for the period from August, 1974 to December, 1974. She admitted non-payment of rent for the month of January, 1975 and added that before it could be paid the landlady filed the above rent case on an absolutely false allegation that she had committed default as back as August, 1973. She denied the subletting of premises in favour of Zainulabedin and explained that owing to the death of her husband she had left for her native place to observe Iddat when Zainulabedin nephew of her deceased husband was requested to stay in the flat for the time being.
5. ' On 16-3-1976 the learned Controller passed an order directing the appellant to deposit the arrears of rent from August, 1974 to 28-2-1976 amounting to Rs,684 on or before 15-4-1976. At the behest of the appellant this order was amended on 9-8-1978, since she stated that she had deposited the rent up to December, 1978 and it was ordered that the deposit of rent in Miscellaneous Rent Application No,1042 of 1975 would be deemed as deposit in this case. It was further directed that the appellant should deposit future monthly rent w,e,f, January, 1979 before the 15th of each subsequently month till disposal of the ejectment application.
6. ' After recording evidence for the parties, the Rent Controller twice passed orders for ejectment of the appellant which were challenged in F.R.A. No,549 of 1987 and F.R.A. No,311 of 1990 but on both the occasions the appeals were allowed and the case was remanded for recording further evidence of the parties. In the third round of litigation after recording evidence of Siddique Ahmad one of the respondents on behalf of the heirs of _the deceased landlady and the appellant herself, the learned Controller directed the ejectment of the appellant on the ground of default in payment of rent for the period from August, 1974 to November, 1974 as well as non-compliance with the tentative rent order with regard to the deposit of future monthly rent. He found that the rent for the months of July and August, 1979 was not deposited within time while the rent deposited for September, 1979 was short by rupee one. The rent for the month of October, 1979 was also not deposited within time and as such there had been non-compliance with the order passed by the Controller. Issue relating to subletting was not adjudicated for the third time as in the F.R.A. 311/1990 High Court had directed the Controller to decide the issues with regard to default in payment of rent prior to filing of the rent application as well as non-compliance with the tentative rent order.
7. ' I have heard learned counsel appearing for the parties and gone through the relevant evidence on record.
8. ' As regards the default in payment of rent for the month of August, 1974 it is an admitted position that the rent for this month as well as the following four months was remitted by way of a demand draft along with covering letter dated 7-11-1974 which was returned by the respondents. It would appear that in the absence of any agreement of tenancy between the parties fixing the date for payment of rent, rent for the month of August, 1974 could have been paid within a period of 60 days from the date it fell due. In the instant case the rent for August, 1974 became due for payment on 1st September, 1974 and allowing a period of 60 days it ought to have been paid on or before 31st October, 1974 but for the first time it was remitted along with letter dated 7-11-1974 thus there was a default at least for seven days in so far the payment of rent for the month of August, 1974 was concerned. With regard to this default, learned counsel appearing for the appellant has taken pains to persuade this Court that it was beyond the power and control of the appellant to have remitted or paid the rent earlier as she had proceeded to her home town Shikarpur for observation of Iddat period on account of the death of her husband who died on 24th July, 1974 at Hyderabad while he was buried at Shikarpur. Learned counsel submitted with vehemence that there was no other male member in the family of the appellant therefore she was handicapped in arranging to remit the rent within time. There is, however, no merit in the submission of the learned counsel as the demand draft was obtained from a bank at Shikarpur on 6-11-1974 while it was dispatched from Hyderabad under the signature of the appellant on 7-11-1974. In her evidence the appellant was confronted with her signature on the letter dated 7-11-1974 Exh.O/C/1 when she admitted the same.
9. She clarified that she signed the letter but it was usually written by others and that her brother Nadir Ali used to write letter. It would thus appear that her brother Nadir Ali was easily available for sending the rent amount to the respondents at Karachi by way of money order or Bank draft within time. Besides the appellant in her written statement while denying the allegation relating to subletting categorically stated that she had gone to her native place to observe Iddat and it was only to take care of the house that her husband's nephew Zainulabedin was requested by her to stay in the flat for the time being. If that be so, even Zainulabedin 'was available at Karachi to tender or pay the rent to the respondents on behalf of the appellant, therefore it cannot be concluded that the appellant was helpless or completely prevented by the circumstances from tendering rent to the respondents within the time permitted by law. I would thus conclude that there was a wilful default on the part of the appellant in so far the payment of rent for the month of August, 1974 is concerned.
10. ' As regards the default in compliance with the tentative rent order passed by the Controller as amended on 9-8-1978 appellant was required to deposit future monthly rent w,e,f, January, 1979 before 15 of each subsequent month. It would, forever, appear from the record of the Controller that the rent for the months of July, 1974 to September, 1979 was deposited by her on 4-10-1979. Besides this amount was short by rupee one. Obviously therefore there was a default in deposit of rent for the months of July and August, 1979 while the rent deposited for the month of September, 1979 was short by rupee one. Again the rent for the month of October, 1979 was deposited on 24-10-1979 which was required to be deposited by 1441-1979. In fact there is no explanation whatsoever for this wilful default in complying with the Controller's order which goes to the root of the case and renders the appellant liable to eviction on this account as well.
11. ' Learned counsel appearing for the appellant finding him in a difficult situation, however, contended that by not making an application under section 16(2) of the Ordinance till at 1-10-1981, the landlady had waived her objection and condoned the default on the part of the appellant. In this connection he has relied upon a judgment of the Lahore High Court in the case of Masood Hussain v. Muhammad Saeed Khan, reported in 1965 Lahore, page 11. He has also referred to the case of M/s. Ghulam Abbas Adamali Jeewaji v. N. Hassan Ali & Company PLD 1984 Kar. 373 in support of his plea that the discretion in the matter of ejectment of tenant has to be exercised judiciously and ejectment would not follow automatically merely because rent was not paid. I am not impressed by this argument advanced on behalf of the appellant as under the law after the Controller coming to a conclusion that the tenant had committed a default in payment of rent or deliberately flouted the order with regard to deposit of current rent during the pendency of the ejectment proceedings is left with no option but to exercise his discretion in favour of the landlord.
12. ' With utmost regard for the view expressed in the Lahore decision suffice to say the facts of the instant case are materially distinct from the facts of the reported case. Besides their Lordships of the Supreme Court have taken a different view and in all fairness the dictum laid down by the Supreme Court must be accepted as the guideline for this Court. With regard to the judgment in Karachi case it does not give an unfettered discretion to the Rent Controller to direct ejectment or not at his whims. Even in the said case it was observed that in case rent is not paid within the period provided by section 13(2)(i) of the 1959 Ordinance, the burden of bringing on record evidence which would make out a case for exercise of discretion in his favour is on the tenant.
13. Learned Single Judge went on to say that it is necessary for the tenant to bring on record either through cross-examination of the landlord and/or his witnesses or through his own witnesses such evidence on record on the basis of which he could establish that the default was neither wilful nor deliberate and ask for the discretion to be exercised in his favour. It would thus appear that both the cases are of no avail to the appellant and do not advance the plea raised by his learned counsel.
14. ' In the case of Muhammad Saleh v. Muhammad Shafi PLD 1982 SC 33 their Lordships of the Supreme Court were pleased to observe that to establish `waiver' by conduct it must be shown that person entitled to a right had knowledge of breach thereof and that he had acquiesced or failed to act notwithstanding that knowledge. Mere failure to take action due to ignorance of breach of his right cannot be said to give rise to any waiver by conduct. Mere inaction or allowing an opportunity to pass by does not necessarily amount to waiver. 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 of right having been abandoned. In the aforesaid case it was further observed that the delay by the landlord in this case in filing his application was not inconsistent with the continuance of his right because the Ordinance has not prescribed any period for filing an application for striking off the defence of a tenant. Similarly it cannot conceivably be contended that the tenant had altered her position to her detriment on account of the landlord's delay.
15. Therefore this is not a case in which waiver can be said to have ripened into an estoppel. After taking into consideration the provisions of subsection (6) of section 13 of the West Pakistan Urban Rent Restriction Ordinance laying down that if the tenant makes default in compliance of such an order then 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, their Lordships laid down the following dictum: "A question, therefore, can legitimately be raised as to whether the landlord has any right to waive away the power of the Rent Controller under the said provision to strike off the tenant's defence. In other words, would such an order become illegal or ineffective if the landlord refuses to press it into service or waive it expressly? We think not. This view finds support from the dictum of this Court in EA. Evans v. Muhammad Ashraf PLD 1964 SC 536. In that case, leave was granted, inter alia, to consider whether the occupant of an evacuee house could contract or opt out of the valuable right given to him by section 30 of the Act and even if he could opt out of it the agreement in that case was void being wholly without lawful consideration."
16. ' In the case of Messrs Crescent Publicity Service v. S.M. Younus and others 1980 SCM R 779 it was held by the Hon'ble Supreme Court that a single default in payment of rent was sufficient to bring the case within the mischief of section 13(6) of Ordinance VI of 1959 (since repealed).
17. ' There is another case decided by the Supreme Court, namely, Muhammad Nazir v. S. Shaukat Ali 1982 SCM R 985 in which a dictum was laid down that the Rent Controller has no power to condone the delay under section 13(6) of the Ordinance.
18. ' Again in the case of Mst. Akhtar Jehan Begum and 4 others v. Muhammad Azam Khan PLD 1983 SC 1 their Lordships of the Supreme Court after holding that the Controller had not to determine the question of quantum or rate of rent finally if the same is not in dispute but to determine such amount approximately held, that in the premises, the consequence of non-compliance of such approximate determination is the summary disposal of the case without taking any further proceedings ipso facto on the basis of such non-compliance by striking off the defence and passing the order of eviction.
19. ' In the case of Ghulam Muhammad Khan Lundkhor v. Safdar All PLD 1967 SC 530 construing the true import of section 13(6) of the Ordinance, it was observed by late Hamoodur Rahman, J. (as he then was): "Having regard to the language of this subsection we find it difficult to accept that the Legislature intended to leave it to the discretion of the Rent Controller to decide whether he would or would not in a given case enforce the default clatise. The Legislature itself having provided for the consequence of default has used mandatory words to direct the Rent Controller to enforce the consequence. The object of this subsection is not so much to afford the landlord an expeditious method of realizing the rent but rather to protect a tenant who is mindful of his obligations from eviction. In interpreting the provisions of the Ordinance it must not be overlooked that the provisions thereof purport not only to curtail seriously the rights that a landlord enjoys under the general law, as contained in the Transfer of Property Act, of evicting a tenant by merely serving upon him a notice to quit but also to co-relatively give special benefits and protections to tenants under certain conditions. Upon general principles, therefore, where a statute grants a privilege upon certain conditions the person seeking the privilege must show that he has strictly complied with those conditions. Unless those conditions are strictly fulfilled the privilege will not be available or the other party deprived of his rights under the law (vide Maxwell, page 285, 11th Edition)."
20. ' Lastly Mr. Nooruddin Sarki, learned counsel for the appellant while referring to the definition of the term tenant as defined in section 2(j) (ii) of the Ordinance contended that the tenant would include heirs of the tenant in possession or occupation of the premises after the death of the tenant urged that the landlord being fully conscious of the death of the husband of the appellant, being original tenant in the premises had omitted to join two sons of the appellant as party to the eviction application whereby her application was rendered incompetent and not maintainable at law. When I asked the learned counsel as to why this plea of fact was not raised in the written statement filed by the appellant, learned counsel contended that this plea being a point of law could be raised at any stage of the proceedings without pleading the same. I am afraid, I cannot subscribe to this view of the learned counsel as obviously it is a mixed plea of fact and law and the circumstance that all the tenants had not been joined in an eviction application would essentially be a plea of fact which unless expressly raised in pleadings question of law would hardly arise for determination as to the effect of non-joinder of some of the tenants in an eviction application.
21. ' Learned counsel then referred me to the legal notice letter dated 2-12-1974 addressed by Fazal Bhoy and Ali Raza, Advocates for the respondents Exh.O/C/2 to the appellant. In para. 4 of this letter it was emphasized that her husband Nurullah Agha having expired, she was claiming devolution of the tenancy in her favour, although according to law the tenancy devolved on all heirs of the deceased whose names had not been disclosed by her. Learned counsel desired me to draw an inference that this circumstance by itself was sufficient notice to the respondents for impleading all other heirs of the deceased as party to the ejectment application but it is not so. On the contrary it would appear that the landlady had desired the appellant to disclose the particulars of other heirs left by the deceased and occupying the demised premises. Assuming that the appellant did not raise this plea bona fide in her written statement, the fact remains that she had challenged the ejectment orders in two F.RAs. On different occasions before this Court but at no stage was this point raised on her behalf that the ejectment application was incompetent by reason of non- impleading of other heirs of the deceased tenant. I am, therefore, of the considered view that this plea could not be raised for the first time in this appeal without this circumstance having been pleaded in the pleadings. I am fortified in this view by two judgments of the Supreme Court in the case of Government of West Pakistan (now Punjab) v. Haji Muhammad PLD 1976 SC 469 and Hakim All v. Muhammad Salim and another 1992 SCM R 46. In the first case it was firmly laid down that it is a well-established rule that if a plea of fact is not pleaded no case can be founded on it. In the second case which arose out of ejectment proceedings, it was observed that landlord during proceedings had filed affidavit stating therein that tenants were inducted in terms of conditions printed on back of rent receipt which circumstance was not pleaded by him, it was held that in absence of pleading to that effect his evidence could not be looked into. In these circumstances, this argument of the learned counsel also must fail and is hereby repelled.
22. ' Upshot of the aforesaid discussion is that there is no merit in this appeal which is accordingly dismissed. The appellant is, however, allowed 60 days time to vacate the premises and hand over vacant possession to the respondents.