SYED DEEDAR HUSSAIN SHAH, J.- The appellant has filed this appeal under Section 21 of the Sindh Rented Premises Ordinance, 1979 against the order of the Rent Controller No. IV, East Karachi dated 9.10.1991 dismissing the ejectment application of the applicant in Rent Case No. 294/87.
2. The appellant/landlord through its President filed an application on 12.4.1988 under Section 15 of the Sindh Rented Premises Ordinance, 1979 (hereinafter called the Ordinance) on the ground of default and damage of property/structural changes bearing No. 135-D, H, Ground Floor, P.E.C.H.S., Karachi-29 thereby impairing the material value and utility of the demised premises.
3. The respondent/tenant filed Written statement disputing and denying the contentions raised in the ejectment application. The learned Rent Controller on 18.1,1989 passed the order for deposit of tentative rent as follows:- "However, 1 am of the considered view that monthly rent is at the rate of Rs. 400/- p.m. From 1.8.1978 as agreed to between the parties to which there is no denial.
Consequently 1 direct the opponent to deposit arrears of rent from 18.4.1985 to 31.1.1989 at the rate of Rs. 400/- per month that is Rs. 18,239.94 being rent of 45 months (rom May, 1985 to 31st January, 1989 and from 13.4.1985 to 30.4.1985 eighteen days of April). This amount is to be deposited on or directed to deposit future monthly rent at the rate of Rs. 4(X)/- per month from 1.2.1989 onwards on or before 10th of every months till final disposal of this case".
4. The learned Rent Controller out of the pleadings of the parties framed the following issues for determination:-
(1) Whether the present application is not maintainable?
(2) Whether the opponent has summitless wilful default in payment of rent from November, 1988? If yes, what is the rate of rent? And
(3) Whether the opponent, has made structural changes and whereby he has impaired the material value and utility of the demised premises?
(4) What should the order be?
5. The appellant filed affidavit in evidence of its General Secretary Syed Bashir Hussain Naqvi (appellant's witness No. 1) whereas the respondent filed affidavit in evidence through its Attorney Mir Ghulam Samdni (opponent's witness. No. 1). Thereafter both the parties closed their sides and the learned Rent Controller fixed the case for arguments on 25.7.1990. And on 25.7.1990 the learned advocates argued the matter and thereafter it was fixed for final order on 12.8.1990. Thereafter it was adjourned for orders time to time till 9.10.1991.
6. The learned Rent Controller decided Issue No. 1 in affirmative and Issue No. 2 holding that burden to prove this issue lies upon the applicant and after discussing the evidence held that opponent is not a wilful defaulter and so far rent of the demises premises is concerned the learned Rent Controller held that the opponent is no liable to pay the rent at the rate of Rs. 400/- as aforesaid settlement was not on permanent basis and was not acted upon by the parties and as such the applicant Anjuman Wazifa Sadat Momineen is debarred and estopped to invoke the terms of the said compromise.
Issue No. 3 was also decided in the negative, therefore, in view of the findings of Issues No. 1 and 3 the learned Rent Controller did not find merits in the Rent Application as such it was dismissed.
7. I have heard Mr. Anwar Muhammad, learned counsel for the appellant, who has contended that Rent Case No. 2540/75 was filed by the landlord Anjuman Wazifa Sadat Momineen, the present appellant against the respondent on 28.5.1975 in that case the learned Rent Controller was pleased to order as under:- "On 13.5.1976 advocate for applicant moved application under Section 18(6) West Pakistan Urban Rent Restriction Ordinance, 1959. Notices were ordered against opponent, case diary dated 27.5.1976 shows that notices were served and by consent matter was adjourned to 13.7.1976 for objections to this application on 13.7.1976. Opponents remained absent. Matter was adjourned for 22.7.1976, meanwhile report was called from Nasir. Nasir has reported that only Rs. 350/- have been deposited on 14.2.1976. No further payment or arrears have been shown to have been deposited by opponent. Opponent on the other hand has remained ex parte and there is no explanation of nonpayment of rent./is such 1 have no other alternate than to say that opponent has committed wilful default by not complying with rent order by not depositing arrears and future rent from February,1975 till date.
Accordingly his defence is struck off. He is given 2 months time to put the applicant in vacant and peaceful possession of the house in question. Application allowed with costs."
8. Thereafter the appellant/landlord filed Execution Application in pursuance of the above order.
9. Keeping in view the ejectment from the premises the opponent/Judgment-Debtor entered into a compromise with the Dedfee-Holder (appellant/landlord). The compromise was to the following effect:- The matter has been compromised between parties hereto on terms and conditions hereinafter stated:-
1. The opponent Judgment-Debtor has paid in full all the dues in confirmity with the Order dated 17.1.1976, under Section 13(6) of West Pakistan Urban Rent Restriction Ordinance, 1959, (hereinafter referred to as the Ordinance) passed in the above rent case No. 2540/75 for the period and upto and inclusive of 28.2.1978.
2. The matter of Execution of the order of ejectment passed in the above Rent Case No. 2540/75 has been agreed to be put off for one year ending on 29,2.1979, in respect of the portion in occupation of the opponent as he reinstated subject to the condition that the opponent shall make payment to the applicant. Decree-Holder at the rate of Rs. 400/- which shall be due on 1.4.1978, and the following months making the opponent deliver possession of the premises in his occupation or otherwise ejected in the execution of the Order date 26.7.1977, disposing of the above Rent Case.
3. That the portion in occupation of the opponent for which the payment shall be made regularly by him as aforesaid, whereas the matter of execution by ejectment from the remaining portion occupied by Mst. Amina (Mst. Musa) shall be in the discretion of Applicant-D-H and the opponent has no objection to execution or compromise of the portion in her occupation which is not in opponent's possession.
4. On failure on the part of the opponent J/D to make payment in the manner herein prescribed the portions in his possession/occupational and the Applicant D/H shall be in power and authorised to eject him therefrom in fresh Execution of the Order dated 26.7.1977, passed in the above rent case under execution, without any notice to the opponent J/D, wherefore it is prayed that the Execution proceeding against opponent J/D may be consigned to records for the present in the terms and conditions hereinafter specified.
Karachi.
Dated: 21.3.1978.
Sd/- Applicant D/H Sd/- Opponent J/D (Attorney)
Sd/- Advocate for the Opponent Advocate for the Applicant.
Parties and their advocates are present. They have filed this compromise. The terms of compromise and signatures on it are admitted by the parties and their advocates. Execution application is accordingly disposed of in terms of compromise."
10. On 29.3.1979 the appellant/applicant served notice under registered Post A/D on respondent's address the address of the demised premises) informing him that he Has failed to vacate the premises and also he has failed to abide by the terms and conditions through which extension of time of execution application No. 64/76 in Rent Case No. 2540/75 was allowed to him upto 9.2.1979.
He has further contended that the opponent in utter violation of the terms and conditions of the compromise application dated 21.3.1978 and orders dated 31.3.1978, quoted above of the III Rent Controller, Karachi, has failed to pay the rent at the rale of Rs. 400/-per month and instead paid rent at the rate of Rs. 350/- per month till October, 1983 and thereafter did not pay the rent and as such rent from November, 1983 at the rate of Rs. 400/- per month is outstanding, and as such respondent/opponent has deliberately committed default in payment of rent and is liable for ejectment.
11. So far the contention regarding the damage to the structure and changes of the properly is concerned, the learned counsel has not pressed this point.
12. I have also heard Mr. Shaikh Muhammad Usman, learned counsel for the respondent/tenant. He has contended and admitted that the appellant & the landlord/owner of the demised premises and the compromise application (mentioned above) was signed and filed before the learned Rent Controller by the landlord and the tenant.
13. Mr. Shaikh Muhammad Usman, learned counsel for the respondent has challenged the authority of the person and his competency to file the rent application.
He has contended that the compromise so entered between the parties was not acted upon at all and in view of the "Waiver" the above-mentioned compromise application is of no consequence.
14. That the authority and competency of the persons who has filed the rent application was challenged and on this point there is no cross-examination on behalf of the applicant as such the facts deposed in examination-in-chief, which remained un-questioned in cross, would be presumed to have been admitted by the opposite party. Mr. Shaikh Muhammad Usman, learned counsel for the respondent has cited (1) NLR 1989 C.L.J. 463-Case of Slier Nawaz Khan v>. Batin Khan:- "Documentary Evidence- -Unexhibited documents cannot be looked into-They should be excluded from consideration".
(2) N.L.R. 1992 Civil 36-Case of Mst. Nur Jehan Begum Through her Lrs. v. Syed Mujtaba Ali Naqvi:- "Omission to cross-examine a witness on a material part of his evidence gives rise to inference that truth of his statement has been accepted. Such unchallenged statement of witness should be given full credit and usually accepted as true unless displaced by reliable, cogent and clear evidence."
15. The learned counsel has cited these authorities only when during the course of the arguments it was pointed out by the learned counsel for the appellant that he has shown constitution of the Anjuman Wazifa Sadat Momineen (Regd.) to the Rent Controller and the learned counsel has admitted that the document was not exhibited in evidence but merely it was shown to the Rent Controller and was kept in the R & P, in which under Article 38 it is mentioned that in judicial proceedings the Anjuman will be sued through the General Secretary and General Secretary will sue on behalf of the Anjuman.
16. In these authorities no doubt it has been held that omission to cross- examine a witness on a material point of his evidence presumption is that truth of his statement has been accepted.
17. The document (Constitution) admittedly was not exhibited in execution, as such in my humble view the authorities are not applicable in the facts and circumstances of the matter.
18. Rent Case No. 2540/75 and Execution Application No. 64/76, in both the matters the respondent/lenant had entered into a compromise with the applicant and both these documents, admittedly, were signed by the General Secretary on behalf of the applicant and the respondent/Judgment-Debtor himself.
19. The applicant, admittedly, is owner and landlord of the premises. Therefore, non-cross- examination of the appellant on the point of competency or authority of the person, is of no help to the respondent. Because since 1975 the respondent is in litigation with the applicant time and again on tho point of the non-payment of the rent/default etc. When the opponent was ordered to vacate the premises on account of non-payment of the tentative rent as ordered by the Rent Controller and at the stage of the execution application the respondent himself entered into a compromise with the appellant before the Rent Controller and the execution application was ordered to be consigned to records. Therefore, these belated objections are of no help to the respondent at all.
20. The learned counsel also referred an authority: N.L.R. 1980 Civil Karachi 451-Case of Muhammad Ahmed v. Mrs. Qamar Anwar Sheikh: "Waiver- -Right of landlord to seek ejectment on ground of default in payment of rent-Waived, where landlord/landlady allows his or her right to lapse by passage of time-Term "waiver" implies intentional relinquishment of a known right after knowledge of facts-It implies intentional forbearance to enforce right and necessarily, therefore, assumes existence, of an opportunity for choice between relinquishment and enforcement of right-Held, in circumstances of case, it has been established on evidence- on record that respondent- Landlady had waived her right to ejectment of appellant-tenant and therefore she was not entitled to claim relief-High Court allowing appeal and setting aside order of eviction-Rent Restriction Ordinance (Vi of 1959)."
In this case alter hearing the parties it was held by Zafar Hussain Mirza, J. That:- "All that is laid down is that mere acceptance of rent by. a landlord after the tenant commits default in the due payment of rent does not wipe out his liability to be ejected. None of the cases cited at the bar is an authority for the wide proposition canvassed by the learned counsel that the defence of waiver of rights on the part of the landlord by accepting rent subsequent to default is completely ruled out. On the contrary in the case of Ismail v. Muhammad Siddik it was laid down that something more than mere payment and acceptance of rent must be established to prove waiver on the part of the landlord. The question that arises for consideration in the present case is whether there exist on the record circumstances showing the conduct of the respondent to the effect that she intended to waive her right of ejectment for the default committed by the appellant for the two years period between July, 1963 and July, 1965. In this behalf the important fact which cannot be ignored is that the respondent kept quiet until July, 1965 after receiving reply to her first notice under Section 30 in July, 1963 whereby her demand of rent at the rate of Rs. 15/-was repudiated per month was offered the respondent served a fresh notice on 14.7.1965 after which the appellant paid all the arrears of rent at Rs. 8/- which were admittedly accepted by the respondent it has been established that even thereafter until November, 1966 the respondent continued to accept rent remitted by Money Order. Applying the rule of limitation whereby only three years rent prior to the date or action for recovery can be claimed, it seems that the respondent allowed the right to eject the appellant on the basis of arrears for the period prior to 8.3.1965 to lapse by passage of time. This is a factor which reflects upon her intention and cannot be ignored. Finally the respondent waited for the long period of about 3 years to commence proceedings for ejectment after the default. Accordingly this is not a case of mere acceptance of rent by the ' aforesaid circumstances clearly show the conduct on the part of the respondent leading to the inference that she had knowingly relinquished her right to eject the appellant, the term 'waiver' implies the intentional relinquishment of a known right after knowledge of the facts."
21. So far the plea of waiver, raised by the learned counsel for the respondent, is concerned I would like to refer (1994 S.C.M.R, page 1900)- Case of Badruddin-Appellant i\ Muhammad Yousuf- Respondent: "The brief facts are that the respondent is a tenant ar Rs. 50/- per month plus payment of electricity charges as per reading of sub-meter of Shop No. 2 out of 5 shops which are part of the building owned by the appellant. He seems that there was earlier litigation between the appellant and the respondent inasmuch as the former had filed an application for ejectment on the ground of default. It further seems that on 7.4.1982, the K.E.S.C, disconnected the meter which was installed at the residence of the appellant in the same building on the ground of non-payment of electricity charges.
Thereupon, the respondent filed an application under Section 11 of the Sindh Rented Premises Ordinance, 1979, hereinafter referred to as the Ordinance, for restoration which application was allowed by the Rent Controller. Against the above order of the Rent Controller, the appellant filed F.R.A. No. 848 of 1987, which was allowed on the ground that the Appellant had not disconnected or caused the disconnection of the electricity.
The above rent case was resisted by the respondent inasmuch as it whs pleaded that earlier the appellant in his Rent Case No. 4231 of 1979 (fid not include the above alleged default of the payment of electricity charges, It was also pleaded that the rent case was barred by the principle of res judicata and the default for the period from 21.10.1978 to 30.6.1979 was barred by time. On merits also the allegations contained in the rent case were denied. It was denied that the respondent as liable to pay the electricity charges for the above period from 21.10.1978 to 30.6.1979 or for the period commencing from 25.8.1981.
The Supreme Court after Hearing the parlies observed that before dealing with the merits of th, .have contention of Mr. S. Ishtiaq Ali, learned SC appearing for t' . Respondent, it may be pertinent to refer to the case of Pervaiz Athar and another v. The Additional District Judge, Rawalpindi and 4 others (PLD 1990 SC 681) and the case of Dr. Ghulam Rasool v. Mutlan, tad Idrees Qureshi (1989 CLC 279).
In the above first case this Court, while declining a petition for leave to appeal against an ejectment order, held that the rent due for the purpose of the Rent Restriction Ordinance would include time-barred rent. It was pointed out that the right to recover rent through a civil suit is distinct from a right to seek ejectment on the ground of default.
In the above second case, a learned Single Judge of the Sindh High Court while construing Section 13 of the Ordinance, highlighted the factum that the word "due" which was employed in Section 13 of the late West Pakistan Rent Restriction Ordinance, 1959, has been omitted in Section 15(2)(ii) of the Ordinance. It was held that the landlord even on the basis of time-barred rent would be entitled to file ejectment case on the ground of default.
In view of the authority-observation of the Supreme Court that landlord can seek ejectment of the tenant even on the basis of time-barred rent and would be entitled to file ejectment case on the ground of default. Therefore (NLR 1980 Civil Karachi 451) in my humble opinion is not applicable so far the facts arid merits of this appeal are concerned.
22. Learned counsel has also referred to PLD 1975 Karachi 1025-Case of Chiragh Din v. Mushtaq Muhammad.
S. 10-Order of shop installing staircase by side of door of shop and leasing out roof of shop of another-Tenant not immediately objecting to such lease and keeping silent for 3 years nor objecting to lease of roof in his first application under S. 10-Plea, held, taken for sake of controversy and not for having any genuine grievance".
Here in this appeal the owner has not leased out any roof of the shop by installing staircase by side of the door of the shop but the respondent is in occupation of the demised premises. In view of the different facts and circumstances, in my humble view this authority is not applicable to the facts and circumstances of the present case.
23. I have gone through the papers including R&P and I have found that so far the relationship of landlord and tenant is concerned, admittedly there is no dispute about it. The appellant is owner of the demised premises and the opponent is the tenant. The perusal of the R&P shows that the learned Rent Controller keeping in view the compromise application, filed by the appellant and respondent in Execution Application No. 64/75, as legal and binding one, fixed the tentative rent at the rate of Rs. 400/- per month, as earlier pointed out by me. The contention of the learned counsel for the respondent is that respondent has deposited the rent in the Court in Misc. Rent Case No. 4814/83 since October, 1983 upto January, 1989 and the schedule showing deposit of rent, by the opponent is at page 163 of the R&P which is as under: - SCHEDULE REGARDING DEPOSIT OF RENT S. No. Dale Receipt No. Amount Period 1. 02.11.1983 23182 700.00 Oct: Nov. 1983
2. 05.12.1983 29392 700.00 Dec. Jan. 1984
3. 19.01.1983 39353 700.00 Feb. March 1984
4. 13.03.1984 49639 700.00 April, May 1984
5. 21.05.1984 60886 700.00 June, July 1984
6. 17.07.1984. 4712 1050.00 Aug. Set. Oct. 1984
7. 21.10:1984 18706 1050.00 Nov. Dec. Jan. 1985
8. 19.01.1985 32765 1050.00 Feb. March, Apl. 1985
9. 09.04.1985 44009 1050.00 May, June, July 1985
10. 13.07.1981 03724 1050.00 Aug. Set. Oct. 1985
11. 20.10.1985 15220 . 1050.00 Nov. Dec. Jan. 1986
12. 23.01.1986 . 268% 1050.00 Feb. March, Apl. 1986
13. 19.04.1986 36707 1050.00 May, June, July 1986
14. 23.07.1986 3038 1050.00 Aug. Set. Oct. 1986
15. 23.10.1986 12356 1050.00 Nov. Dec. Jan. 1987
16. 25.01.1987 21278 1050.00 Feb. March, Apl. 1987
17. 20.04.1987 28851 1050.00 May, June, July 1987
18. 22.07.1987 2838 1050.00 Aug. Set. Oct. 1987
19. 12.10.1987 '104l 1050.00 Nov. Dec. Jan. 1988
20. 17.01.1988 16136 1050.00 Feb. March, Apl. 1988
21. 19.04.1988 22294 1050.00 May, June, July 1988
22. 10.07.1988 1504 2100.00 August 1988 to Jan. 1989. ------------- 2240.00 ------------- Karachi Dated 7.1.1989 . Sd/- ADVOCATE FOR THE OPPONENT"
The perusal of this schedule, which is filed by the learned counsel for the respondent/opponent in the Court of learned Rent Controller, clearly shows that respondent/opponent has not deposited the rent regularly even in the Court but he has deposited the rent collectively for months together and there is a lapse of at least 3 months in the deposit of the rent. Whereas the last deposit which is at S. No. 22 shows that the respondent/tenant deposited the rent in the Court of Rent Controller from August, 1988 to January, 1989 i.e. After about 5 months and there is a clear lapse of 5 months in the deposit of rent. Moreover this Misc. Rent Case was filed by the opponent/respondent without any notice to the appellant/landlord. This deposit of rent by the respondent/opponent clearly shows that he himself has never been active and diligent in depositing rent even in the Court.
24. In the Misc. Rent Case in which the respondent/opponent deposited rent, at his own accord and did not implead the appellant in this Misc. Rent Case.
I have been referred to a case reported in PLD 1994 Karachi 20-Case of MUHAMMAD Raghib v.
Abdul Razzaq. In this case my learned brother Salahuddin Mirza, J. Has filed as under:- "It is worth-noting that the respondent did not implead the appellant in this Miscellaneous Rent Case No. 5 of 1976. Copy of Memo, in M.R.C. No. 5 of 1976 is on record as Exh. 13(page 103) and in paras. 4 and 5 thereof the respondent had himself stated accept rent and even returned the money orders sent to it and informed him that the property in dispute is said to have been transferred to Raghib Siddiqui (appellant) when the Board in so clear words washed its hands off the disputed property and informed the respondent as to who was the real owner, the respondent was duty bound to tender rent to the appellant at least from the date on which the Board communicated such information to the respondent. There was no justification whatsoever to file M.R.C. 5 of 1976 in the name of Evacuee Trust Board. Any rent paid to the Evacuee Trust property Board or deposited in M.R.C. No. 5 of 1976 is of no consequence and cannot save the respondent from being a defaulter".
25. Admittedly due to failure of the respondent to deposit the tentative rent, as per order of the Rent Controller, his defence was rightly struck off and when the appellant filed an execution application the Respondent entered into a compromise and filed compromise application in the Court of Rent Controller, having jurisdiction. The Rent Controller on the execution application, passed orders as mentioned earlier.
Thereafter the respondent failed to payment, as per compromise application. The landlord/appellant thereafter served a legal notice through registered Post A/D.
26. The respondent on his own accord deposited the rent in the Court of Rent Controller in Misc.
Rent Case without impleading the appellant as a party and without any notice to the appellant.
The perusal of the schedule of the deposit of rent, furnished by the learned counsel for the respondent/opponent, which is at page 163 of R&P, quite clearly shows that even before the Rent Controller the respondent/tenant has never deposited The rent regularly, but the rent-is deposited by him after a lapse of 3 months or in some cases after the lapse of 5 months. This conduct of the respondent clearly shows that he has been a wilful defaulter and has never deposited the rent regularly.
27. From the perusal of the case papers, R&P, facts, circumstances and authorities I have come to the conclusion that the respondent/opponent is a persistent defaulter and has never been able to pay the required rent to the landlord or even to deposit the rent regularly, on this own accord in the Misc. Rent Case.
28. In view of the reasons as discussed above respondent is a wilful defaulter. As such FRA. No. 688/91 is allowed with no order as to costs and the order of the learned Rent Controller, dismissing Rent Case No. 294/88, vide his order dated 9.10.1991, is set aside.
29. The respondent is allowed two months time to hand over vacant and peaceful possession of the premises to the appellant/landlord.