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Second Appeal No. 51 of 1981, decided on 11th December,1984.

‑‑‑Ss. 11 & 21‑‑Landlord and tenant‑‑Discontinuance of amenities, restoration of‑‑Application for‑‑Amenities previously available to tenant discontinued by subsequent landlord‑‑No protest or objection by tenant for a period of two years from such discontinuance of amenities‑‑Filing of application by such tenant for restoration of amenities, after landlord had begun ejectment proceedings against him, held, established tenant's lack of good faith as same was motivated by way of counterblast and not to ventilate grievance which tenant was suffering for two years.

Chiragh Din v. Mushtaq Ahmed P L D 1975 Kar. 1025 ref.

‑‑‑S. 15(2)(ii)‑‑Qanun‑e‑Shahadat Order (10 of 1984), Art. 114‑ Default‑‑Effect‑‑Forfeiture of tenancy on commission of default‑‑Waiver‑ default in payment of rent, held, could not be waived by mere acceptance of rent by landlord as Act XVII of 1979 itself had provided forfeiture of tenancy on commission of default‑‑Where landlord had accepted rent fully knowing that default had been committed and kept quiet for unreasonable period‑‑Landlord would be deemed to have waived default. (Waiver].

1982 S C M R 33; 1979 C L C 757; Muhammad Yunus v. Abdul Hamid P L D 1975 Lah. 1326 and Najmudin v. Zaheer Ahmed PLD 1982 Kar. 188 ref.

‑‑‑Art. 114‑‑Waiver, connotation of‑‑A person in spite of having full knowledge of violation of his rights of personal nature, remained quiet for unreasonable long time without raising any objection or protest, such person, held, would be deemed to have acquiesed in offending act or had waived it.‑‑[Waiver].

1982 S C M R 33; 1979 C L C 757; Muhammad Yunus v. Abdul Hamid P L D 1975 Lah. 1326; Najmudin v. Zaheer Ahmed P L D 1982 Kar. 188 and Mrs. Zehra Begum v. Messrs Pakistan Burmah Shell Limited P L D 1984 S C 38 ref.

‑‑‑Ss. 11(3) & 21‑‑Discontinuation of amenities‑‑Restoration of‑‑Discretion of Rent Controller, exercise of‑‑Discretion to restore amenities discontinued by landlord, held, should be exercised by Rent Controller in proper and appropriate cases and not in every case‑‑Where amenities were discontinued by landlord due to sufficient cause or just reason and where tenant slept over for unreasonable long time on such discontinuance without raising objection or protest‑‑Rent Controller should disallow restoration of same.

A. Sattar Pinger for Appellant.

Suleman Kassam for Respondent.

Dates of hearing: 23rd and 24th October, 1984.

The respondent filed an application under section 10(2) of West Pakistan Urban Rent Restriction Ordinance, claiming restoration of the amenity which was closed by the appellant. The respondent is tenant of the appellant in respect of Shop No.‑‑1 tenament No. G/2 on Plot No. MR/7/2 Virjee Street, Jodia Bazar, Karachi. He is a tenant for more than 30 years. In December, 1974 the appellant purchased this property, and thereafter from 1976 dispute arose between the parties. As the appellant wanted to reconstruct the building an ejectment case was filed against the respondent. It seems that sometime after purchasing the property the appellant closed the gate leading to godown and the passage to which the respondent had an access from the inner door of his shop. The appellant by a notice, dated 25‑8‑1976 called upon the respondent to desist from using the Machan and using the door leading to the godown which was never used by him before. In reply for the first time, the respondent complained that the main gate of the building which was also used by the respondent has been closed down. No doubt the respondent made this complaint, but no demand was made to open the gate. Thereafter, the respondent filed the application for restoration of amenities. The learned Controller came to the conclusion that the application is belated, and the respondent has waived his right to claim such convenience and dismissed the application. The learned First Appellate Court, however, took a different view, and taking note of the fact that the main door has been closed and convenience has been stopped set aside the order of the learned Controller and allowed the respondent's application.

From the allegations made in the application as well as in the statement of the parties, it seems clear that the respondent is the tenant in respect of shop which has its door on the main street. By the side of the door is a passage which leads to the said compound, where the godown is also situated. Inside the shop there is a door and a window which open in the passage. The respondent has claimed that before the shutters were put on the gate only doors were fixed and he used to bring his goods through this gate in his shop. There is no dispute about the location of the shop, the inside door and window, the gate in the passage and closure of the main gate by the shutter, thereby disturbing the amenity. The only question for consideration is whether the respondent has waived his right to claim the amenities. From the evidence, it is clearly established that after purchasing the property in 1974 the door of this passage was closed and shutters were fixed. Since then whatever obstruction was made by the appellant, it continued to exist upto the time the respondent filed the application in October, 1976. In between there were certain developments which have eroded the relationship between the parties. The appellant filed ejectment case in 1976 against the respondent, and thereafter the respondent seems to have filed a miscellaneous rent case for deposit of rent. During this period of two years when door was closed the respondent does not seem to have raised any objection. Even the notice which has been made a basis for making the claim was replied by the respondent, on 13‑9‑1976, but he does not seem to have taken any serious objection of the closure of the gate, nor a demand was made to reopen it and remove the obstruction. In these circumstances one is led to believe that the respondent has been a silent spectator to the' closure and has not objected for a period of two years. There can be only two inferences that can be drawn, either the respondent had reconciled with the closure and did not object or he has been using the gate irrespective of the shutter fixed on it. The respondent has nowhere stated in his evidence that after the shutters were fixed he was allowed to use this passage or the gate. Therefore, silence for such a long period without any protest proves that he did not object. The fact that the application was filed after the appellant had begun ejectment proceeding against him, clearly establishes lack of good faith.

Mr. A.S. Pingar the learned counsel for the appellant has referred to Chiragh Din v. Mushtaq Ahmed P L D 1975 Kar. 1025 in which the delay of three years in making an application under section 10 and failure to take such objection in the first application under section 10 proved that objection was taken for the sake of controversy. In the present case also after a long silence of two years the respondent took. up the objection after the ejectment application had been filed against him. The application was motivated by way of a counterblast and not to ventilate the grievance which he was suffering for two years.

Mr. Suleman Kassam the learned counsel for the respondent has contended that as no period of limitation has been fixed and further that as the provisions of West Pakistan Urban Rent Restriction Ordinance relate to public policy, the question of claim being barred by time or waiver does not arise. The learned counsel has referred to 1982 SCMR 33, where it was held that there can be no waiver against public policy. He has referred to 1979 C L C 757 where it was held that mere no objection by landlord does not amount to waiver specially when no period of limitation has been proved and prescribed by law for seeking ejectment on the plea of subletting. The learned counsel for the appellant also referred to Muhammad Yunus v. Abdul Hamid P L D 1975 Lah. 1326, where it was held that the liability to ejectment arises on account of the commission of default in payment of rent and there is no provision in section 13 of the Ordinance that such liability is waived if the landlord accepts rent for a period subsequent to that for which the default has taken place.

In all these cases, the observation has been made in respect of default made by the tenant. As the statute itself provides forfeiture of tenancy on default, it cannot be waived by mere acceptance of rent, after the default. However, this is not in every case that the default cannot be waived. If the landlord accepts the rent knowing full well, B that default has been committed and keeps quiet for an unreasonable period and also continues to accept rent then he shall be deemed to have waived the default. In this regard reference can be made to Najmudin v. Zaheer Ahmed P L D 1982 Kar. 188 where the following observation was made:‑‑

"As regards the submission, that since no period of limitation is prescribed for taking action, if the premises were sublet, therefore, non‑action on the part of the appellant would not amount to acquiescence or waiver is misconceived because the application or non‑application of the principle of acquiescence or waiver does not depend on any period of limited .................

There is no doubt that the Ordinance does not prescribe any period of limitation for eviction of tenant, but if the provisions of section 13(2)(1)(a) of the Ordinance were violated, and if in spite of knowledge of violation the person sleeps over his right and/or does not enforce his right, and does not take advantage or benefit conferred on him by law within reasonable time, which always is the question of fact, then the principle of acquiescence or waiver comes into operation for to hold otherwise might cause not only great hardship but might result in irreparable loss to a tenant. Further, the principle of waiver or acquiescence would also be obliterated in such cases."

In Mrs. Zehra Begum v. Messrs Pakistan Burmah Shell Limited PLD 1984 S C 38, it was held that if a landlord agrees to let out the premises for a fixed period, then he cannot ask for ejectment on the ground of his personal bona fide use and occupation, as he has battered away his right for a particular period. The contention that as the statute provides for ejectment on such ground, by agreement it cannot be waived, was repelled in the following words:

"In the second place even if there was such a right available under the law, (for argument sake but not as a fact) it stood waived because it is not a part of public policy, but of a personal privilege which the landlord could forego for a valuable consideration."

From the aforestated authorities it is clear that if in spite of the knowledge of the violation of rights, conferred by a statute which are personal in nature, the person remains quiet for unreasonably long time without raising any objection or protest, then he shall be deemed to have acquiesced in the offending act or waived it.

Applying the aforestated principles to the facts of the present case, it is clear that the right claimed by the respondent is for his own personal need and convenience. It is not a part of public policy. He himself has remained quiet over the matter for about two years and objected in the circumstances which establish his mala fides. In these circumstances, the application filed by the respondent lacks bona fide and is belated. By this conduct the respondent has acquiesced in the rather objectionable conduct of the appellant.

Under section 10, subsection (3) a discretion has been conferred on the Controller that if on enquiry he finds that the enjoyment of amenities has been cut off or withheld by the landlord without just or sufficient cause, then he shall direct the landlord to restore such amenities. Therefore, it is not in every case' where amenities have been cut off or disturbed that the Controller will order for its restoration. He would refuse to exercise his discretion if . the amenity has been cut off only due to sufficient cause or just reasons. This discretion is to be exercised in proper and appropriate cases. Therefore, D in cases where a tenant sleeps over his right, does not object to the disturbance of any convenience or amenity and waives his right, he cannot at his own sweet will turn round and object to it. The closure of amenities for a long period without any objection which constitutes waiver and acquiescence justifies its validity, and this would be sufficient to disallow the application. The order of the learned 1st Appellate Court is set aside, and the order of the learned Controller is maintained.

The appeal is allowed.

H. B. T. Appeal allowed.

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