Find a Lawyer

First Rent Appeal No. 100 of 1984, decided on 22nd September, 1986.

‑‑‑Ss. 16(1)(2) & 21(1)‑‑Waiver‑‑Without knowledge of right there could be no waiver‑‑Tentative rent order‑‑Non‑compliance of‑‑Landlord applying for striking off defence after considerable delay‑‑Effect‑ Tenant's plea of waiver‑‑Landlord's plea that he came to know about non‑compliance of tentative rent order by tenant only few days before filing application for striking off defence because he was not allowed to withdraw rent deposited in Court‑‑No counter‑affidavit was filed by tenant to deny plea of landlord except raising objection that by filing application for striking off defence after about 11 months of such default, landlord had waived his right to file such application‑‑Without knowledge of rights there being no waiver, plea of waiver raised by tenant, held, was rightly rejected by Rent Controller.‑‑[Waiver].

1982 C L C 772 and P L D 1983 Kar. 489 ref.

‑‑‑Ss. 16 & 21(1)‑‑Striking off defence‑‑Only landlord having been cross‑examined by tenant, while tenant and his witness still remaining to be cross‑examined‑‑Contention of tenant that case being ripe, Rent Controller instead of striking off defence should have disposed of case on merit, repelled‑‑Rent Controller, held, rightly struck off defence of tenant particularly when non‑compliance of tentative rent order by tenant was proved.

Manzar Alam for Appellant.

Kadir Bux Memon for Respondent.

Date of hearing: 25th August, 1986.

This first rent appeal is directed against the order of learned Senior Civil Judge and Rent Controller Sukkur, dated 30‑10‑1984 in Rent Application No. 40 of 1983 whereby he struck off the defence of the appellant and ordered his eviction.

The facts leading to this appeal are that the respondent is the owner of house bearing No. A‑140819 situated in Kiri Quarters, Old Sukkur wnich he had purchased from original transferee Gharibullah by a registered sale‑deed, dated 20‑4‑1972. After the purchase of this property the respondent served notice under section 13‑A of the Rent Restriction Ordinance, 1959 upon the appellant who was tenant of the said premises. The appellant executed a rent agreement, dated 17‑4‑1975 in favour of the respondent undertaking to pay the rent of tenement in his possession since 20‑4‑1972 at the rate of Rs.20 per month. However, the appellant failed to pay the rent and the respondent filed the rent application under section 15 of the Sind Rented Premises Ordinance, 1979. He moved an application under section 16(1) of the Ordinance, The application was resisted by the appellant on the ground that the premises in question were gifted to him by the respondent and, therefore, he is no more his landlord. This plea was not accepted by the learned Rent Controller. The relevant portion of his order is reproduced as under:‑

"Opponent has filed the objection where he has denied the relationship of landlord and tenant on the ground that the property in application is gifted to him by applicant. This fact is denied by applicant. As . an alternate plea it was argued by Mr. Qadir Bux that as a Rent Controller this Court cannot decide the question whether the property is gifted to opponent or not, and for this purpose the proper forum is the civil Court and opponent have not filed any suit and has not sought any such declaration. It was argued by Mr. Qadir Bux that the alleged gift not acted upon the applicant still continues to be the owner of the property and he is dealing with the property as the owner. Mr. Qadir Bux has also produced the photo copy of C.S. extract which show that applicant has in 1978 mortgaged the property with House Building Finance Corporation and such entry is also made in the C.S. Record. The opponent has executed the rent agreement and in presence of this rent agreement the denial on the part of opponent appears to be vague and uncalled for. It has been held in number of authorities that whenever there is vague denial on the part of tenant the Rent Controller can pass the tentative rent order."

The learned Rent Controller directed the appellant to deposit arrears of rent upto 31‑8‑1983 amounting to Rs. 840 on or before 30‑9‑1983 and further directed the appellant to deposit monthly rent at the rate of Rs.20 on or before 10th. of succeeding month. On 18‑9‑1984 the respondent filed an application under section 16(2) of the Ordinance praying for striking off the defence of the appellant on the ground that he had failed to deposit the rent of September, 1983 on or before 10th October, 1983 as directed by the learned Rent Controller. In the objections filed by the appellant, he did not deny the factum of default but only raised the plea that as the default was for the month of September, 1983 and the, present application was filed on 18‑9‑1984 the respondent by his conduct has waived the default. This plea was not accepted by learned Rent Controller who, relying on 1982 C L C 772, held that there was no waiver. He accordingly passed the impugned order.

I have heard the learned counsel for the parties and also perused the R&P, of the trial Court. It has been argued by the learned counsel for the appellant that as the appellant had denied the relationship of landlord and tenant between the parties therefore, learned Rent Controller should have first decided that issue before passing any order under section 16(1) of the Ordinance. I have already reproduced relevant portion of order of the learned Rent Controller under section 16(1). It shows that learned Rent Controller has dealt with this objection raised by the appellant and in view of the admitted facts and circumstances of this case, this view does not appear to be illegal or exceptionable. As a matter of fact this objection has not been specifically raised in this appeal also. There appears to be no force in this objection. Therefore, we proceed to examine the objection raised by the appellant before the trial Court as well as before this Court that by filing the application after one year the respondent would be deemed to have waived default for the month of September, 1983. It may be permitted to reproduce the observations made by learned Single Judge of this Court in case reported in 1982 C L C 772 which has been relied upon by the learned Rent Controller:‑

"Without knowledge of the right there would not be any waiver. When a tenant deposits monthly rent and no notice is issued to the landlord either by him or by the Court. No duty is cast under the law on the landlord to inquire every month whether the tenant has duly deposited the rent or not, therefore, whenever, the landlord acquires knowledge of default he can during the pendency of the proceedings make necessary application, for no time for making such application under section 13(6) of Wesr Pakistan Urban Rent Restriction Ordinance, 1959 has been prescribed‑. Knowledge of the right or claim or privilege and it is intentional relinquishment or sine qua non to establish plea of waiver."

It may be pointed that in support of application under section .r16 (2) of the Ordinance the respondent filed an affidavit stating therein that he did not know of the default committed by the appellant before 4‑9‑1984 because he was not allowed to withdraw the rent. He has stated that he came to know of the default only on 4‑2‑1984 when he moved this application on 18‑9‑1984. No counter‑affidavit was filed by the appellant to show that the respondent had knowledge of default earlier than the date mentioned by him. As a matter of fact no counter affidavit has been filed in support of objections. In his objections he did not deny the default but only raised the objection that the respondent would be deemed to have waived his right by moving application after 12 months. The learned counsel for the appellant has relied on ‑ I. D 1983 Kar. 489 where a learned Single Judge of this Court has held: "Landlady having slept over default for two years right to have defence of tenant struck off will be construed to have been waived by her". In the reported case apart from the fact that there was delay for two years and the default even otherwise did not appear to be wilful, there was no evidence to show that the landlady did not have knowledge of the default during the two years before moving the application. Her conduct was, therefore, rightly construed to have amounted to waiver. In the instant case the facts are similar to that of the case reported in 1982 C L C 772 and I am in respectful agreement with the view of my learned brother in the said case that without the knowledge of the right there could not be any waiver. I am, therefore, of the view that the learned Rent Controller has rightly rejected the plea of the appellant that there was no waiver of the right on the part of landlord.

It is further urged that the case was ripe and the learned Rent Controller instead of striking off the defence should have disposed of the case on merits. From the record it appears that the witnesses of the respondent had been cross‑examined but the witnesses of the appellant and the appellant still remain to be cross‑examined. However, in view of the fact that default was proved the learned Rent Controller had no option but to strike off the defence. Reliance is placed on the B case of M. Nazir v. S. Shaukat Ali 1982 S C M R 985 wherein it was held that Rent Controller was not empowered to condone delay in deposit of the rent. In the case of Mst. Akhtar Jehan Begum. v. Muhammad Azam Khan P L D 1983 SC it was held "consequence of non‑compliance of order under section 13(6) of West Pakistan Urban Rent Restriction Ordinance, 1959 was summary disposal of case without taking further proceedings ipso facto on the basis of such non‑compliance by striking off the defence and passing order of eviction.

In view of the facts of this case as discussed above and the law laid down in this respect I find no merit in this appeal which is accordingly dismissed. The appellant is, however, given three months time to vacate the premises.

H.B.T./5186/K Appeal dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.