1. ' This appeal is directed against the judgment dated 12-12-1993 passed by the learned Vth Senior Civil Judge/Rent Controller (East), Karachi, wherein ' the ground of default though admitted by the learned trial Court has resulted into the dismissal of the ejectment application.
2. ' The brief facts of the appellant's case are that the respondent is his tenant in respect of demised premises vide agreement dated 13-3-1972 at a monthly rent of Rs,210 payable before the 5th of each calendar month. It has been further stated that the respondent had failed and neglected to pay or tender monthly rent to the appellant for the month of June, 1992 to August, 1992 and had paid the same through money order on 1-9-1992 while rent for the month of September and October had not been paid till the filing of the ejectment application before the trial Court.
3. ' The respondent through their written statement and evidence having been brought on record have taken a position that the agreement in question in respect of the disputed premises had expired and was not validated by execution of a fresh agreement and consequently the respondent's status was converted to that of a statutory tenant. Upon perusal of the written statement filed by the respondent it has been conceded that the agreement relates to a tenant and not a lessee. Default has been denied by the respondent. It was contended that the rent for the months of June to August, 1992 was remitted through money order on 1-9-1992, upon failure of the appellant's to have accepted the rent for two months. The respondent is stated to have attempted to make such payment to the appellant which was refused and it was only thereafter that the money order, was stated to have been sent on 11-11-1992 for a period of four months. Plea of waiver on part of the appellant has also been raised by the respondent.
4. ' Only one issue has been framed by the learned Controller as to whether the respondent had wilfully defaulted in the payment of rent. On this issue the learned Rent Controller has arrived at a finding that there seems to be default at the most for the months of September and October, 1992 till the filing of the case before him. The learned Rent Controller has relied upon the acceptance of rent by the appellant up to the month of December, 1992 without any objection, which according to the learned Controller amounted to waiver which has resulted into his finding that no wilful default has been committed by the respondent. Learned Rent Controller has relied upon 1990 CLC 1729 wherein it has been held that default once made cannot be washed away by subsequent tender unless and until the landlord accepts the same and thereby waives the default. The above facts have led me to determine as to whether there was a waiver on part of the landlord or not. The record reveals that the landlord continued to receive, and the respondent tenant has continued to send rent for the past eight years only through one mode, that is, by money order. As such the learned Controller has arrived at a positive finding of default of two months much against the contention of the appellant that the default was of five months instead of two months.
5. Mr. M.A.M. Namazi has contended that the law does not in any manner give discretion to the Controller to be exercised in favour of the tenant, after he has arrived at a finding of default which has been so done in the present case. Such discretion has been contended to be available in the earlier Rent law on the subject. Reliance has been placed on PLD 1971 Lah. 610 whereby at page 615 the terms and conditions of an expired agreement in relation to tenancy of premises continues to remain the same unless altered by mutual consent. Further reliance has been placed on PLD 1988 SC 190. At page 192 the Full Bench of the hon'ble Supreme Court has specifically laid down that the terms and conditions of tenancy agreement between the parties will continue to operate, notwithstanding the termination of the said agreement. Such terms and conditions will govern the continuance of tenancy as visualized in the definition clause. Further reliance has been placed on 1981 SCM R 93, where it was held:-- "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 j whenever the tenant pleases or affect the liability of the tenant to pay the rent unless the landlord comes 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 accept 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, hesitation to go to Court 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 irregular payment of rent."
6. ' During the course of arguments Mr. Namazi made a statement at Bar that the landlady has now become a widow. Mr. Farooqui, however, has expressed unawareness and does not deny or confirm the same. The premises is a commercial one and the landlady is getting only Rs,210 in an area like Tariq Road, Karachi, which would be mere pittance. Mr. S.A. Farooqui offered to double the rent, which was not accepted by Mr. Namazi.
7. In view of the aforementioned and also that no discretion would be available to the Trial Court once a finding has been arrived in terms of default upon my careful consideration and being in respectful agreement with the law laid down by the Supreme Court, the impugned judgment is set aside, and the appeal is allowed. The respondent is directed to vacate the premises within 90 days from today.
8. Before parting with this judgment I would like to place it on record that vide order dated 20-5-1997, a sum of Rs,1,000 was imposed as costs on the respondent for not proceeding with the matter. The same was not claimed by the counsel for the appellant on the condition that the matter proceeds today. As such claim of cost of Rs,1,000 having been waived, the same may not be deposited by the respondent.