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First Rent Appeal No.419 of 1985, decided on 19th November, 1986.

---S.15 (2) (ii) --Ejectment of tenant on ground of default Tenancy not governed by agreement but by statute--Rent not paid within grace period of two months would constitute default--Where tenancy between parties was statutory at relevant time and relationship between them was not being governed by any agreement, failure of tenant to pay rent of premises within 60 days after rent had become due for payment, held, would render tenant to be wilful defaulter and liable to be ejected on ground of default in absence of any cogent explanation of such default.

---Ss.15 (2) (ii) & 21(1)--Ejectment of tenant--Waiver, plea of--Non proven of waiver--Effect--Nothing having been pointed out by tenant which could establish that landlord had given up his right to evict tenant from disputed premises, either expressly or by his conduct, question of waiver, held, would not arise even if eviction application against tenant on ground of default was filed by landlord after delay of about two years after commission of such default.

Mst. Bachi Bsis case P L D 1972 Kar.278 and Muhammad Saleh v. Muhammad Shafi 1982 S C M R 33 ref.

Syed Sibghatulla Hamid for Appellant.

Khalid Athar for Respondent.

Date of hearing: 19^th November, 1986.

This appeal is directed against the order passed by the learned XIVth Rent Controller, Karachi, dated 28-3-1985, dismissing ejectment application filed by the appellant against the respondent.

2. The facts of the case, briefly stated, are that the respondent was the tenant of the appellant in respect of two shops bearing No. 17/2, in the Aligarh Colony, Orangi Township, Karachi, at a monthly rent of Rs.180. In October 1982 the appellant filed an eviction application against the respondent, inter alia, alleging that the respondent had failed to pay rent for the demised premises from May, 1980 to November 1980. According to the appellant the premises were also required by her for the use of her son, Muhammad Qamar who was aged 51 years and was married and had seven children. Both the grounds failed to find favour with the learned Controller who dismissed the application by the impugned order, and hence this appeal.

3. I have heard Mr. Sibghatullah Hameed, learned counsel for the appellant and Mr. Khalid Athar, learned counsel for the respondent.

4. The only ground urged by Mr. Sibghatullah Hameed is, that according to the evidence adduced by the parties before the learned Controller, at least the case of the appellant on the point of default had been fully established and, therefore, the learned Controller fell into serious error while not exercising his discretion in favour of the appellant.

5. There appears to be lot of force in Mr. Sibghatullah Hameed's contention. There is no contest on the point, that after April 1980, rent was not paid by the respondent to the appellant, but the same was deposited in the court through Misc. Rent Application No.6614 of 1980 which was filed by the respondent in November 1980. Admittedly the tenancy between the parties was statutory at the relevant time and the relationship between them was not being governed by any agreement. Under -such circumstances, since rent for May 1980 the payment of which by the respondent became due on 1st June,1980, could be paid within the-grace period of 60 days, and therefore, the same could be paid till 31-7-1980. In such a cases, the respondent had, admittedly committed default in regard to payment of rent from May to August 1980 since the rent was deposited by him in Court after first November, 1980. The only explanation, for this admitted default given by the respondent, is, that he had received notice under section 18 of the Sind Rented Premises Ordinance, 1979 from one Noor Elahi through his Advocate who had claimed to be a new landlord of the demised premises and had called upon the respondent to pay future monthly rent to him. Therefore, according to the respondent he started depositing rent in the Court and as such he was not a wilful defaulter. Although there is no rebuttal from the appellant in respect of such notice being received by respondent, but even if the factual position as stated by the respondent is accepted, even then, in my opinion, the respondent was a wilful defaulter since admittedly he waited for a period of six months before depositing the rent in the Court. No explanation has been offered by the respondent in respect of this intervening period. That being the case, the respondent was clearly a wilful defaulter in payment of rent and liable to be ejected from the premises. No such circumstances have been established by the respondent that he was prevented by some cause beyond his control to deposit rent within time.

6. Mr. Khalid Athar, learned counsel for the respondent, has argued that since the application was filed after a delay of about two years after commission of the alleged default, the appellant had waived his right to eject the respondent. This argument, I am afraid, is not tenable because as has been held in Mst. Bachi Bails case P L D 1972 Kar. 278, waiver means an implied agreement and, therefore, delay by itself cannot amount to waiver. In Muhammad Saleh v. Muhammad Shafi 1982 SCMR 33 it was held that mere inaction or allowing an opportunity to pass by does not amount to waiver and gratuitous indulgence shown by one of the parties and omission to enforce one's legal right strictly cannot give rise to an inference that the right has been abandoned. Since nothing has been pointed out which can establish that the appellant had given up his right to evict the respondent from the demised premises, either expressly or by her conduct, the question of waiver does not-arise.

7. For the aforesaid reasons the findings of the learned Controller on the point of alleged default in payment of rent are reversed and consequently this appeal is allowed and the respondent is directed to. hand over vacant possession of the premises in question to the appellant within six months.

H.B.T/N-5/K Appeal allowed.

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