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First Rent Appeal No.399 of 1981, decided on 5th February, 1984.

---S.13--Detault in payment of rent--Waiver--Default committed for a long time--Mere inaction on part of landlord, held, would not amount to waiver of default unless by some overt act or express conduct of landlord such a waiver was not spelt out waiver.

---S.13--Default in payment of rent--Tenant committing default--Landlord accepting arrears of rent without objection and continues to receive rent paid regularly thereafter and does not take any action for sufficiently long period--Held, it, did not amount to condoning default.

---S.13--Default in payment of rent--Waiver--Tenant in habit of paying rent in an irregular manner--Mere acceptance of such payments and silence for a reasonable long period, held, would not amount to waiver of default.--[Waiver].

---S.13--Default in payment of rent--Tenant admitting default which he tried to explain by pleading practice of making lump sum payment--Plea of tenant, held, not acceptable--Appeal against refusal of ejectment order accepted.

Alima Ahmed v. Amir Ali P L D 1984 S C, 32 ref.

A.Rauf for Appellant.

Umer Qureshi for Respondent.

Date of hearing: 5th February, 1984.

The appellant filed an ejectment application against the respondent in respect of bungalow situated on plot No.10/D Block L North Nazimabad, Karachi, which was rented out to the respondent on monthly rent of Rs.600. The agreement of tenancy dated 15-10-1975 was for a period of 11 months subject to renewal by the appellant. The respondent paid Rs.9,000 as security deposit which was refundable at the time of delivery of vacant possession. The appellant alleged that he was a persistent defaulter and upto December, 1978 a sum of Rs.19,894 were due. Further, the respondent did not pay rent and other charges from January, 1979 to July, 1979. The respondent resisted the claim stating that he regularly paid monthly rent from the date of agreement till its expiry and thereafter it was agreed between the parties that the respondent may pay the rent in lump sum when ever it is convenient and this practice continued till the application was filed. It was denied that the respondent has committed any default and it was stated that the rent upto July, 1979 has been paid and there are no dues except for the months after the filing of the application. The learned Controller by the impugned order held that no default has been committed.

Mr. Rauf the learned counsel for the appellant has contended that from the evidence on record the default has been established and finding of the learned Controller is completely erroneous and a result of mis-appreciation and misreading of the evidence. The learned counsel first referred to the statement of account filed by the respondent in which it has been stated the balance rent on 1-1-1978 was Rs.7,840 and upto December, 1978 the rent, electricity, water and gas charges swelled to Rs.29,894. The respondent paid Rs.10,000 leaving a balance Rs.19,894. The learned counsel also referred to two payments of Rs.5,000 and Rs.10,000 made by two cheques dated 12-9-1978 and 25-6-1979 which were dishonoured. It, therefore, seems clear that even on the basis of the statement filed by the respondent it is not established that the rent has been regularly paid. The payments made by these cheques proved that the rent was not paid regularly but after long intervals. The respondent admits that these cheques were dishonoured but according to him thereafter the amount of Rs.10,000 was paid in cash. He however, resiled from this statement and stated that this amount Rs.10,000 was paid by him by two cheques of Rs.5000 each. The respondent has not produced the counterfoil of the cheques nor even the bank statement to show that these cheques were issued and encashed by the appellant. In fact the statement of account filed by the respondent was prepared in December, 1978. In para. No.5 of the affidavit of evidence the respondent stated that he had made payment of Rs.5,000 in cash on 12-10-1978 but strangely enough this amount has not been shown in the statement of account prepared by him. It cannot believed that this was an accidental mistake. The statement of account shows payment of 'Rs.10,000 by two cheques of Rs.5,000 each dated 4-4-1978 and 26-6-1978 these cheques were encashed and credit for this payment has been given in the statement of account. As the dishonoured cheques were issued on 12-9-1978 and 25-6-1979 the afore stated payment of Rs.10,000 made much earlier cannot be in lien of these dishonoured cheques. The learned Controller after discussing the evidence observed that it is an admitted position that the amount was being accepted by the appellant in lump sum although according to written agreement the rent was payable on monthly basis and concluded that if the landlord even after the default continues to accept rent without any protest and does not initiate ejectment proceeding within a reasonable time the said default shall be deemed to have been waived. Mere inaction on the part of a landlord after the default has been committed for even a long period will not amount to waiver of default unless by some oven act or express conduct of the landlord such waiver is spelt out. The respondent had not even raised the plea of waiver. He had only pleaded a practice to pay the rent in accumulate form after some months. If the landlord after the default has been committed accepts the arrears without objection and continues to receive rent paid regularly thereafter, and does not take any action for sufficiently long period it may amount to condoning the default. But where the tenant is in the habit of paying the rent in an irregular matter, mere acceptance of such payments and silence for a reasonably long period will not amount to waiver of default.

The Controller found that the averments in the ejectment application and the affidavit of evidence relating to period of default and the amount of arrears are contradictory. From the facts that the appellant remained quiet for one year in spite of default, did not call upon the respondent in writing to pay the rent, nor informed the respondent in writing that the cheques have been dishonoured and that ejectment proceedings were not taken against the respondent within a reasonable time, the Controller concluded that the appellant must have received the rent periodically in cash as stated by the respondent. The entire reasoning of the Controller is based on misreading and mis-appreciation of evidence on record. Even a glance at the evidence of the parties cannot reasonably lead to such conclusions. The respondent's statement of account prepared by him admits of a clear default. His statement regarding payment made in lieu of dishonoured cheques is contradictory and he has failed to establish such payment. In the face of such evidence, finding that payment was made can be based only on presumptions. The Controller's observation that the appellant's claim for arrears of rent from 1-1-1978 to 31-12-1978 should be Rs.19,200 and not Rs.19,894 as claimed by the appellant is a result of mis-appreciation of evidence. In the affidavit of evidence the appellant stated that the respondent has failed to pay the rent since January, 1978 and was in arrears of rent amounting to Rs.19,894. This statement is fully established by the statement of account filed by the respondent in which the arrears have been shown as Rs.19,894. From this statement of account it is clear that it includes Rs.7,840 as arrears upto 1-1-1978, Rs.19,200 towards rent for January, 1978 to December, 1978 @ Rs.1,600 P.M. and Rs.2,854 towards water, electricity and gas charges. The total thus comes to Rs.29,894. The respondent paid Rs.10,000 by two cheques of RS.5,f)Of) each on 4-4-1978 and 26-6-1978. The appellant seems to have adjusted it towards the arrears upto 1-1-1978 and the balance water, gas and electricity charges or the rent. In this manner the accumulated arrears could not be equivalent to the rent for 12 months as the total amount of arrears was inclusive of gas, electric: and water charges. The respondent has not disputed that such charges were not payable by him. In fact he has included them in his statement of account as due and payable to the appellant. The finding of the Controller is baseless and erroneous. He has completely ignored the statement of the respondent from which the default is fully established. The plea raised by the respondent that a practice to pay the rent in lump sum had developed after the expiry of the agreement is neither established nor it is sustainable. From the entire evidence it is clear that the respondent has admitted the default which he has tried to explain by the pleading practice of making lump sum payment. In Alima Ahmed v. Amir Ali P L D 1984 S C 32 where in ejectment case the tenant pleaded that the landlord had intentionally delayed the receipt of rent from time to time and that there was a practice to clear accumulated rent it was observed as follows:-----

The alleged practice of the attorney of the landlady of collecting accumulated rents is of no avail in explaining these delays and defaults as held by this Court in' Tirmizi's case . The Ordinance protects the tenants against eviction and enhancement of rent, thereby curtailing the plenary power of the landlord to deal with his property and tenant thereof. If promptness in payment of rent with option to the tenant to deposit it with the Rent Controller, is a condition precedent for enjoying such protections it cannot be relaxed or diluted on grounds of economic well-being fairness or in the name of justice."

This plea of the respondent is not sustainable. The appeal is allowed with cost. By consent the respondent is allowed four months from today to deliver vacant possession of the disputed premises to the appellant.

M.A.K. Appeal allowed.

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