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First Rent Appeal No.196 of 1986, decided on 20th November, 1986.

‑‑‑Ss. 16(1)(2) & 21(1)‑‑Tentative rent order‑‑Non‑compliance of‑ Effect‑‑Where omission on behalf of tenant to comply with tentative rent order passed by Rent Controller was not occasioned by reasons absolutely inevitable, unavoidable and beyond control of tenant, but caused due to tenant's own negligence, such omission on behalf of tenant, held, would amount to wilful omission and would render defence of tenant liable to be struck off.

Mst. Shah Jehan v. Mst. Mukti P L D 1963 Kar. 777; Visumal Chatumal Khilnani v. Ali Bakhsh and others P L D 1968 Kar. 521 and Ghulam Muhammad Khan Lundkhor v. Safdar Ali PLD 1967 SC 530 ref.

‑‑‑Ss. 16(1)(2) & 21(1)‑‑Striking off defence‑‑Application for delay in making application‑‑Whether delay constitutes waiver on the part of landlord‑‑Tenant not pleading waiver‑‑Effect‑‑Waiver on part of landlord‑‑Tenant nowhere pleading that landlord in spite of having full knowledge of non‑compliance of tentative rent order by the tenant, failed‑ to bring same to the notice of Rent Controller earlier or that landlord had acquiesced in the matter notwithstanding such knowledge‑‑

Contention of tenant that landlord had waived his right to raise objection in respect of such default, held, was devoid of any force, even if application for striking off deuce of tenant on ground of default was made a bit late by landlord.

Syed Masood Hussain and others v. Muhammad Saeed Khan and others P L D 1965 Lah. 11 and P L D 1965 Lah. 11 and Muhammad Saleh v. Muhammad Shafi 1982 S C M R 33 ref.

‑‑‑S. 16(2)‑‑West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 13(6)‑‑Substitution of words "failed to deposit" in S.16(2) in place of words "makes default" used in earlier Ordinance 1959‑‑Effect‑ Term "default", its scope and meaning‑‑Default is of greater significance and would embrace every failure to perform a duty unless prevented by superior force‑‑Mere non‑compliance of order under S.13(6) would not in every case amount to default‑‑Failure to deposit rent must be occasioned by reasons absolutely inevitable, unavoidable and beyond control of the tenant‑‑Where, however, the omission to deposit rent was due to miscalculation by tenant which was due to his negligence, the default, held, would constitute wilful omission to deposit rent.‑ [Words and phrases].

Stroud's Dictionary; Chatumal Khilnani v. Ali Bakhsh and others P I D 1968 Kar. 521 and Mst. Shah Jahan v. Mst. Mukti P L D 1963 Kar. 777 ref.

K.M.Nadeem for Appellant.

Masood Hussain Khan for Respondent.

Date of hearing: 27th October, 1986.

This appeal calls in to question the order passed by the VIth Senior Civil Judge and Rent Controller, Karachi, dated 12‑3‑1986, under the provisions of section 16 (2) of the Sind Rented Premises Ordinance, 1979.

The facts of the case are that the respondent is landlord of a shop situated in portion of House No.4/405, Liaqutabad, Karachi and the appellant is his tenant in respect thereof at a monthly rent of Rs.150. In 1979 the respondent filed an ejectment application under the provisions of section 13 of the Sind Urban Rent Restriction Ordinance, 1959. On 7‑7‑1979 the learned Controller passed a rent order directing the appellant to deposit Rs.1,050 in the Court before 1‑10‑1979, being arrears of rent due from December, 1979 to June, 1979. The appellant was further directed to deposit further monthly rent at the rate of Rs.150 per month in Court commencing from July, 1979, before 15th of each succeeding month. During the pendency of the proceedings the respondent filed an application under section 16 (2) of the Sind Rented Premises Ordinance, 1979 requesting the learned Controller to strike off the appellant's defence and put the respondent in possession of the shop in question as the appellant had failed to deposit rent in Court as earlier directed by the learned Controller. According to the respondent after Rs.300 had been deposited by the appellant on 15‑5‑1982, he had failed to deposit 10 months' rent and as such had committed default in complying with the Rent order, dated 7‑7‑1979. After receiving such application, the learned Controller sent for a report from the cashier of the Court which appears to have been submitted to him on 1‑9‑1983, containing complete details in regard to the amounts deposited, their dates and receipt numbers. Thereafter another application dated 16‑5‑1984 was made to the learned Controller requesting him to get fresh report from the Nazir which was allowed by the learned Controller and a fresh report dated 26‑5‑1984 was submitted to him again by the office. The appellant in the meanwhile had also filed objections denying that any default has been committed by him as alleged by the respondent. It was however, conceded by him that there were omissions made by him on one or two occasions while depositing the rent in the Court, which according to him occurred as the shop of the appellant had been subjected to looting and arson owing to the sectarian disturbances which took place in the city in March and April, 1983, as a result of which the relevant record got completely destroyed and the rent deposit receipts could not be located by him. He further submitted that an F.I.R. in respect of the incident had also been lodged by him before the police. The learned Controller after recording the evidence on the point came to the conclusion that the appellant had failed to deposit rent from January, 1982 to February, 1983 and as such he committed default in compliance with the rent order and therefore, he struck out the defence of the appellant and directed him to vacate the premises in question and hand over their possession to the respondent within thirty days from the date of the order, and hence, this appeal.

I have heard Mr. K.M. Nadeem, learned counsel for the appellant and Mr. Masood Hussain Khan, learned counsel for the respondent.

Both the learned counsel have referred to the record of the various deposits made by the appellant from time pursuant to the initial rent order, dated 7‑7‑1979. The record indicates that the appellant had failed to deposit rent from November, 1982 to September, 1983 within the time as required by the tentative rent order, and about this factual position, there has been no contest. However, the arguments of Mr. K.M. Nadeem, learned counsel for the appellant was that since the appellant was earlier depositing rent in the Court in advance, therefore, the omissions made by him were on account of miscalculation. According to the learned counsel the mistake could not be rectified earlier owing as the appellant was prevented by circumstances beyond his control on account of the disturbances. The learned counsel, therefore, contended that the appellant was entitled to condonation of default. Reliance was placed by him on Mst. Shah Jehan v. Mst. Mukti P L D 1963 (W.P. ) Kar. 777 and Visumal Chatumal Khilnani v. Ali Bakhsh and others PLD 1968 Kar. 521. The learned counsel further argued that since application in respect of the alleged default was made by the respondent for the first time in May, 1984 and the default pertained to 1982 and 1983, therefore, the respondent had waived his right to raise objection in this regard. He also referred to the case of Syed Masood Hussain and others v. Muhammad Saeed Khan and others P L D 1965 (W.P.) Lah. il.

Both the arguments appear to be devoid of force. Section 16(2) of the above‑said Ordinance of 1979 clearly provides that "where the tenant has failed to deposit the arrears of rent or to pay monthly rent under subsection (1) his defence shall be struck off and the landlord shall be put into possession of the premises". Although in section 16(2), the Legislature has used the words "failed to deposit" in place of the words "makes default" used in section 13 (6) of the earlier Ordinance of 1959, nevertheless Mr. K.M. Nadeem has argued that the position has not materially changed by use of different language by Legislature in section 16 (2) of the new Ordinance. The counsel therefore, argued that the term "default" would not include every failure on the part of the tenant to comply with the tentative rent order. Support in this respect was sought from the meaning of the term "default" as given in Stroud's Judicial Dictionary, reference to which has been made in a D.B. Judgment of this Court in Mst. Shah Jahan v. Mst. Mukti, while interpreting the term "default", Inamullah, J. (As he then was) while writing the judgment of the D.B.; observed as follows:

The word "default" is of great significance.

"Default" is defined in Stroud's Judicial Dictionary as under:‑

"Default would seem to embrace every failure by the defendant to perform his contract unless prevented by superior force over which had no control, such as stress of weather."

I think the word 'default' has been used by the Legislature in the sense as defined above. It cannot be said that the word 'default' is redundant in subsection (6) of section 13 of the Ordinance. If the Legislature intended otherwise it would have been sufficient to say that if the tenant does not comply with such an order instead of saying if the tenant makes default. It would depend upon the makes default. It would depend upon the circumstances of each case whether a tenant has committed default or not. A tenant who is coming to deposit the money on the 4th of the month meets with a serious accident with the result that he becomes unconscious and is taken to the hospital and regains his senses on the 6th cannot be said to have committed default. If the word 'default' is given the meaning of non‑compliance, it is likely to lead to serious repercussions. It would however, not be easy for a tenant to prove default within the dictionary meaning.

(7) I would hold that mere non‑compliance of the order under section 13(6) to make the payment before the 5th of every month would not in every case amount to default; it would depend upon the circumstances of each case whether the payment has not been made because of some superior force over which the tenant had no control."

Another judgment relied upon by the learned counsel is reported in PLD 1968 Kar. 521. In this case the tenant failed to deposit rent during the month of June, 1964 owing to the impression that deposits would not be accepted during vacation. Another reason was that the tenant was out of Karachi and his wife who was entrusted with the work of deposit of rent could not attend the Court due to illness of her child. The matter came in appeal before an eminent Judge of this Court who, held, that the tenant was justified in presuming that deposit of rent would not be accepted during the vacation and in view of the medical certificate produced in support of the child's illness, it could not be said that the tenant had committed default. Reliance in this case was placed on Ghulam Mohammad Khan Lundkhor v. Safdar Ali P L D 1967 SC 530 in which it was held that failure to deposit rent must be occasioned by reasons absolutely inevitable, unavoidable and beyond control of the tenant. The present case, according to me, is clearly distingushable because the appellant in the first instance has pleaded, miscalculation on his part, which in my opinion, could only occur due to his negligence and not for reasons unavoidable or beyond his control. Then the appellant has contended that the record of rent deposits got destroyed in the process of riots which took place in March and April. 1983. This plea can hardly be of any avail to him as admittedly the A appellant was in default since November, 1982 and continued to remain so till September, 1983. This, therefore, was a clear case of wilful omission and reference to the two cases cited by the counsel cannot change this position. The cases are clearly distinguishable and do not help the appellant at all.

The next argument pressed by Mr.K.M. Nadeem is that since the default was brought to the notice of the learned Controller by an application filed in August, 1983 and the default indicated by the respondent was committed during the period between November, 1982 t9 September, 1983, therefore, there was a clear waiver on the part of the respondent in regard to his right to press into service the provisions of section 16(2) of the Ordinance of 1979. Reliance in this respect has been placed on P ,L D 1965 (W.P.) Lah. 11, wherein it was held that provisions of 13(6) of the Rent Ordinance of 1959 dealt with private rights and were meant for the benefit of the landlord therefore, default committed by the tenant in complying with order under section 13 (6) could be waived. However, in Muhammad Saleh v. Muhammad Shafi 1982 S C M R 33 the Supreme Court has held as follows:‑

"17. Reading the above‑noted definition and quotation together it is evidence that in order to establish "waiver" by conduct "it must be shown, firstly, that the person entitled to the right had knowledge of the breach thereof, and secondly, that he had acquiesced or failed to act, notwithstanding that knowledge. Therefore, mere failure to object or to take action due to ignorance of the breach of his right cannot be said to give rise to any "waiver by conduct". In support of this reference may be made to Vyvyan v. Vyvyan, Maxan v. Payne, Federal Supply Co. v. Angehrn, R.V. Essex Justice Ex parte Pakistan, Dhanukdhari Singh v. Nathuni Sahu, Naripati Nath Bhattacharjie v. Deckaran Nasji, Zammorin Raja Avergal v. Unikat Karnawan and Izhat Fatima Bibi v . Anwar Fatima Bibi . "

It has been further observed in this case that;

'18 Even otherwise mere inaction or allowing an opportunity to pass by does not necessarily amount or waiver because when, for instance, a tenant consistently fails to pay rent, being aware of his obligation to pay it, or where there is a delay by the landlord in filing an ejectment petition out of decency to the tenant or hesitates in going to the Court or for any other reason, the tenant cannot be allowed to take up the plea that the landlord had, by his conduct in failing to take action, waived his right to receive the rent. It has been held that even gratuitous indulgence shown by one of the parties does not constitute estoppel or waiver omission to enforce one's legal right strictly cannot give rise to an inference that the right has been abandoned. Reference, may be made to Shahenshah Shahalam Co‑Operative House Building Society Ltd. v. House Building Finance Corporation. In that case the learned Judge observed as follows:

'Instead the Corporation took a long time to enforce the penalty clause but this was with a view to safeguard its own interest and was merely to consider the ways and means of helping the appellants to retrieve the position. So, it was a case of more indulgence shown to the appellants rather than any waiver'."

In the instant case, it has not been pleaded by appellant that the respondent had the knowledge about the default committed by the appellant but he failed to bring the same to the notice of the learned B Controller earlier or that he had acquiesced or failed to act, notwithstanding such knowledge. In view of such circumstances the second argument of Mr. K.M. Nadeem is also untenable and cannot be accepted.

The upshot of the above discussion is that the appeal is dismissed with costs and the impugned order passed by the learned Controller is maintained. The appellant is however given 60 days' time to vacate the premises in question. On his failure to do so the execution will follow without any notice to the appellant.

H.B.T./5126/K Appeal dismissed.

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