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Petitioner: (Dr) WASIF AHMED JALALI VS Respondent: GHAZALA IQBAL
Court Name: Sindh High Court Judge(s): Hamid Ali Mirza Title: (Dr) WASIF AHMED JALALI vs GHAZALA IQBAL Case No.: First Rent Appeal No. 589 of 1994 Date of Judgment:1996-01-10 Reported As: K.L.R. 1996 Civil Cases 436 Result: N/A
JUDGMENT
JUDGMENT HAMID ALI MIRZA, J.- This is an appeal under section 21 of the Sindh Rented Premises Ordinance, 1979 (hereinafter called Rent Ordinance) directed against an order dated 5.9.1994 passed by learned IIIrd Senior Civil Judge and Controller, Karachi, Fast, in Rent Case No.60 of 1993, Mrs. Ghazala Iqbal v. Wasif Ahmad Jalali, whereby ejectment application filed by the respondent was allowed and the appellant was ordered to hand over vacant possession of the premises within a period of 60 days, hence this appeal. 2. Brief facts of the case are that the respondent landlady tiled Rent Case.No.60/93 for ejectment of appellant/tenant from premises fust and second floor ol property No.126. Darakhshan Society, Malir. Karachi, on the around of non- payment of rent for the months of December. 1992 and January. 1993 as well as nonpayment of water charges, (ii) impairing the value and utility of the premises and (iii) on personal requirement of the respondent/landlady. The appellant/tenant filed written statement stating therein that he has paid rent at the enhanced rate of rent Rs. 11.000/- per month for the months of December, 1992 to January, 1993 by cheques to the respondent/landlady but the cheque for the sum of Rs.1 1,000/- being rent for the month of January, 1993 was dishonoured due to some circumstances, therefore, rent for the month of January, 1993 was deposited by the appellant/tenant in Misc. Rent Case No.89/1993 on 14.2.1992 on account of respondent's mala fide motive who avoided to receive rent so as to create a ground for his eviction. The appellant/tenant also denied that he has impaired the value and utility of the premises and that respondent/landlady required the premises in good faith. The respondent/landlady examined herself and produced two photocopies of tenancy agreements, Exs. A/1 and A/2, payment bill of
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water and conservancy charges Ex.A/3, electricity payment slip Ex.A/4 and gas payment bill Ex.A/5 and three rent receipts for November, 1992 to January, 1993 and receipt for the sum of Rs.81,000/- Ex.A/9, building plan Ex.A/10. Receipt for the sum of Rs.1,50,000/- Ex.A/11, receipt for the sum of Rs.50,000/- Ex.A/12, photocopy of letter of respondent to KESC, Ex.A/13, cheque for the sum of Rs.Ll,000/-Ex.A/14 bank refusal to pay, slip, Ex.A/l5, letter of respondent to Manager Singer Ex.A/16, and letter of Almurtaza Ex.A/17, and examined PW 2 Saad Baig Khan. The appellant/tenant Dr. Wasif examined himself and produced relevant receipts Ex.O/1 to 0/3 and letters and also examined DWs Nasir Ali and Muhammad Akbar. 3. After recording the above evidence and hearing learned counsel for parties, the learned IIIrd Senior Civil Judge and Rent Controller Karachi-East passed the impugned judgement. 4. 1 have heard learned counsel for parties, perused the record and proceedings of the case and the case law cited by the learned counsel for the parties. 5. Learned counsel Mr.K.B. Bhutto for appellant has argued that the respondent/landlady received rent for the months of December, 1992 and January. 1993 through cheques from the appellant as per receipt after filing the said ejectment application, therefore, the said acceptance of rent amounted to waiver of default on the part of respondent/landlady therefore the finding of the learned Rent Controller on the point of default was erroneous in law and that an amount of Rs.90,000/- was still lying with the respondent/landlady which could have been adjusted towards rent and that in view of the admitted fact that the appellant/tenant has been paying huge amounts in advance from time to time to the respondent/landlady, therefore, if there was any delay in the payment of rent for one month, the learned Rent Controller should have exercised discretion in his favour. He has further argued that the Iasi tenancy agreement dated 1.2.1992 expired on 31st of December, 1992 and thereafter appellant/tenant became statutory tenant therefore he was supposed to pay rent in terms of section 15(2)(ii) within sixty days after the monthly rent became due for payment under Rent Ordinance and that there has been no default in the payment of rent but only there has been late payment for the month of December. 1992. He has placed reliance upon I993 SCMR 200, PLD I990 5.C.389, 1988 CLC 1703 and 1986 SCM R 441, in support of his contentions. 6. Mr. Hamza Ali learned counsel for respondent has argued that the appellant offered, two cheques dated 27.1.1993 for the months of December, 1992 and January. I993 on 27.1.1993 as per Ex.A/6 and A/8 when rent for December. I992 was to be paid by 20. l2.1992 and rent for January, I993 was to be paid by 20 I I'993. And .The said cheque for the month of January, 1993 was dishonoured and after that rent was deposited for the said month in Misc. Rent case No. 89/93 on 14.2.I993 in the office of Controller, therefore, there was no tender of rent within time under the law hence there was default in the payment of rent on the part of the appellant and that acceptance of rent for the month of December, 1992 would not amount to waiver in view of Article 114 of Qanoon-e-Shahadat. He has placed reliance upon AIR 1956. Tripura 28, 198l CLC 327, 1988 MLD 2759 and 1985 CLC 1429. He has also placed reliance upon Article 114 of Qanoon-e-Shahadat that the respondent by accepting rent did not abandon right to file ejectment application against the appellant/tenant and b> acceptance of rent she was not estopped to file the samd. He has argued that even on the expiry of tenancy period as per last agreement of tenancy, the appellant/tenant would not become statutory tenant but would be regulated by the terms and conditions mentioned in the last tenancy agreement. He has placed reliance upon PLD 1988 S.C. 190, PLD 1988 S.C. 228. He has further argued besides non-payment of rent for the month of December, 1992 and
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January, 1993 in time, the appellant/tenant has also failed to pay water charges amounting to Rs.3,578/- for the year 1991 as per Ex.A/3 and that there was no balance of amount of the appellant left with the respondent for adjustment towards rent as per Ex.A/9 the balance amount of Rs.81,000/- was could be said to the appellant and that even if Ex. A/9 is said to be not proved then also the said amount of Rs.81,000/- could not be adjusted towards the. Rent for the further period as said balance of Rs.81,000/- would be a debt amount which could be recovered through civil suit. He has also referred to para 3 of the agreement dated 1.2.1992 which stated that from November, 1992 and Onwards rent will be Rs. 11,000/- per month and the same shall be paid upto 5th day of each English calendar month in advance which would show that there was no outstanding amount of the appellant with the respondent. Learned counsel Mr. Hamza Ali has also referred to tenancy agreement Ex.A/1, para 17, wherein it has been mentioned that the respondent undertook to refund fixed deposit of Rs.39,00/- to the second party which was received as security deposit subject to adjustment if any loss to the property and t the deduction if any, therefore, the said amount of Rs.39.Q00/- being security deposit could not be adjusted towards the payment of rent. He has further contended that cases cited by the learned counsel for the appellant are not applicable and are distinguishable to the facts of the instant case. 7. Mr.K.B. Bhutto for appellant in reply has argued that the clause in respect of payment of rent in advance was repugnant to the provisions of section 10 of the Rent Ordinance, therefore, the tenancy of appellant could not be regulated by the terms of expired tenancy agreement. So far the waiver, he has argued that the Indian case was not applicable as it dealt to a case of compensation. He has placed reliance upon 1971 SCM R 725 in support of his arguments. So far the water charges, he stated that the same pertained to future charges therefore the same were not due at the time what ejectment application was filed against the appellant. 8. It is admitted by the appellant's learned counsel that the rent for the month of December. 1992 was paid through cheque No.92511465 on 27.1.1993 to the respondent and rent for the month of January, 1993 was paid through cheque No.92511466 on 27.1.1993 to the respondent but the said cheque for the month of January, 1993 was returned unpaid to the respondent as per Ex.A/l4 and A/15. It has also been admitted by the appellant's learned counsel that the appellant deposited rent for the month of January, 1993 on 14.2.1993 as per photocopy of receipt of Misc. Rent Case No.89/93 filed with the R&P. It would mean that rent for the month of December,, 1992 was tendered on 27.1.1993 while rent for the month of January, 1993 was tendered on 14.2.1993. Now the main point for consideration would be whether the appellant/tenant was to pay rent in terms of agreement dated 1.2.1992 executed between the parties or was to pay rent under section l5(2Xii) of the Rent Ordinance. The contention of the learned counsel for appellant is that after the expiry of tenancy period, i.e. On 31st of December, 1992, the appellant became statutory tenant therefore he was to pay monthly rent within sixty days from the date it became payable as required by section I5(2X) of Rent Ordinance, therefore, rent for the month of December, 1992 which was paid on 27.1.1993 was paid within time and rent for the month of January, 1993 which was also deposited on 14.2.1993 was also paid within time therefore there was no default. 9. Contention of the learned counsel for the appellant that the clause in respect of payment of rent in advance in the tenancy agreement dated 1.2.1992 was repugnant to the provisions of Sindh Rented Premises Ordinance, therefore, the appellant would beliable. To pay rent under section 15(2X*0 of the Rent Ordinance has no merit and substance. Reference is made to Mst. Zarina Khawaja v. Agha Maliboob Shah (PLD 1988 S.C. 190)'wherein Supreme Court of Pakistan at page 192 held:
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"The terms of the so-called expired agreement which are not repugnant to the rent law shall continue to operate. For example, the rate of rent, tin- mode of payment thereof including its advance payment of deposit provision for agreed increase in rent provided it is not after the determination of fair rent, provisions for re-entry of a tenant after he vacates the premises for reconstruction, all covenants which support the conditions in section 15 of the Sindh Law and Section 13 of the Law repealed by jt, and similar other conditions and covenants." Reference is also made to Syed Asghar Ali Imam v. Muhammad Ali (PL D 1988 S.C. 228) where at page 231 the Supreme Court of Pakistan held: "The last argument of the learned counsel for the respondent has also no force. The date of payment of rent after the expiry of the lst period of tenancy has been fixed in para 4 of the agreement as 5. I.I 975. It was to be of advance rent, which held by us in the case of Mst. Zarina Khawaja. Is permissible. Taking the liberal view in tenant's favour, we would hold that the use of the word "monthly" and "Rs.1,100" in the last sentence of para 4, would make it advance rent only for one month and not for six months. Thus, it was due on 5.I.I975 and would be payable upto 20.1.1975 ,i.e. Within 15 days - it is in case of "agreement" even it is expired but continued by the law as held in the said case of Mst. Zarina Khawaja. The 60 days rule will not apply." 10. The decision of the Supreme Court is binding upon this Court and no contrary view has been cited on the said point by the learned counsel for appellant therefore it could be said that the terms in respect of the advance payment of rent being not repugnant to the Rent Laws would be operative and the appellant would be bound in terms of agreement to pay the rent to the respondent in advance of each calendar month. 11. The next contention of learned counsel for appellant is that as the respondent accepted the cheques in respect of rent for the month of December, 1992 and January, 1993, therefore, it amounted to waiver of the default on his part, therefore, the finding of Rent Controller on the point of default was erroneous in law. Learned counsel for appellant has referred to Adam Ahmad Thaqia v. Muhammad Hanif (1988 CLC 1703).In the cited case, the landlord knowingly relinquished his right to apply for ejectment during the existence of tenancy agreement for the period of 11 months when the agreement specifically stipulated that rent would become due on the first of each month payable in advance, In the cited case four defaults were committed during the existence of tenancy agreement and after the expiry of tenancy agreement two defaults were committed and the landlord finally woke up from slumber on 5.8.1982 and filed eviction application before the Rent Controller, when the landlord admitted that last rent was paid by the tenant on 2.8.1982 therefore, under the cited case it was held that conduct of landlord clearly implied waiver on his part, In the instant case the facts of the case are quite different and distinguishable to the facts of the cited case as in the instant case the said default pertained to the month of December. 1992 and January, 1993 when the ejectment application under section 15 of the Rent Ordinance was filed on 26.1.1993 and that after the acceptance of rent through two cheques for the months of December, 1992 and January, 1993 out of which cheque for the month of January, 1993 was not paid by the banker which was ultimately deposited on 14.2.1993 in the office of Controller when the ejectment application was filed on 26.I.I993 by the respondent and there was, in fact, no delay in prosecuting the remedy therefore the acceptance of rent would not amount to waiver. Reference is made to Mian Muhammad Sahfi v. Abdur Rahim {PLD 196,7 Peshawar 223) at page 228 para 23 where the learned Judge in chamber observed:
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"On the reasoning adopted in this authority, it would appear that the liability of a tenant for eviction in respect of buildings and tenancies governed by the Ordinance is to be regulated by the provisions of the Ordinance alone, and the principles of the Transfer of Property Act are not to be imported. I am in respectful agreement with this reasoning. According to clause (i) of sub-section (2) of section 13 of the Ordinance, a tenant is liable to be evicted if the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied that the tenant has not paid or tendered rent due by him in. Respect of building or rented land within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement; within sixty days from the period for which the rent is payable, The liability to ejectment arises on account of the commission of default in the 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 default has taken place, or at a date subsequent to the filing of his application for the tenant's eviction." Reference is made to Dwarkin and Son Ltd. v. Hari Singh (AIR 1955 NUC (Calcutta) 2896 D.B.) where it was observed at page 2897, column No. 1 :- "Therefore where there was no valid tender to the landlord within the time by which such a tender could be made and on the dates on which the rent was tendered to the landlord and accepted by him, there vas no longer any right in the tenants to make a deposit with the Rent Controller the tenants are in no way made to alter their position and are not affected in regard to any of their rights, by the acceptance, of the rent by the landlord. Therefore, the tenants' plea that the landlord by accepting the rent paid to him after the due date was debarred by the principles of estoppel and waiver from relying on cl.(i) of the proviso to S.12 (I) cannot succeed." l2. The case AIR 1956 Tripura 28 cited on the point of waiver by the learned counsel for respondent has no application to the facts of the instant case. Reference is made to Mrs. Afia Baig v. M/s. Pakistan State Oil Company Ltd. (PLD 1991 Kar.239) wherein learned Judge in chamber at page 245 observed: "Waiver1 precisely^means to abandon or relinquish, a known right by an express declaration or by conduct. In Shoukat Ali v. Sakhawat Hussain (1984 CLC 34) a learned Single Judge while following a case of Muhammad Saleh v. Muhammad Shaft (1982 SCM R 33) observed as follows:- "The "Waiver" therefore, is either express or implied, Waiver by implication can be inferred from the circumstances of each case. However, to prove waiver there should be some clear and decisive act or conduct beyond mere silence.. Reliance is placed on the authority of the Supreme Court in Muhammad Saleh v. Muhammad Sahfi (1982 SCM R 33), wherein it was held that "omission to enforce one's legal right strictly cannot give rise to an inference that the right has been abandoned." The Supreme Court in the case, referred to above held 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 take objection or to take action due to ignorance of the breach of one's right cannot be said to give rise to any "Waiver" by conduct." 13. A perusal of this case would show that in order to constitute waiver, something more than mere inaction or delay in asserting one's right would be necessary. Therefore, mere failure to file eviction
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application for eviction cannot be said to give rise to any ''Waiver' by conduct." Reference is made to C.L. Massey v. Muhammad Amin (1988 MLD 2759) wherein learned Judge in chamber observed: "There is no provision in section !3 of the Ordinance whereby the landlord waives his right to receive rent as provided under the statute if he accepts rent for the period subsequently after the default has already been committed or on a date before the filing of the ejectment application. The ejectment application filed by the respondent No.1 was competent even if he had received rent from the petitioner after the default had been committed by him.' Reference is also made to Abdul Majeed v. Ibrahim (1984 CLC 1596) wherein learned Judge in chamber at page 1600 observed: "In any case the default had already been committed and by filing distress warrant proceedings and recovering the rent, without anything further it cannot be presumed that the landlord had waived the default and had given up his right to pursue the case for ejectment on the ground of default in the payment of rent. Of course, they might be cases wherefrom the circumstances and the special facts of those case the Courts may come to the conclusion that there was a waiver on the part of the landlord as far as the default is concerned but otherwise the default that has been committed is not obliterated by subsequent payment." 14. In the instant case there is no evidence from the side of appellant that the respondent waived, abandoned his right to file ejectment application against him either expressly or by his conduct. It would appear that soon after the acceptance of cheques in respect of the refit, the respondent filed eviction application against the appellant therefore there could not be waiver on the part of the respondent in favour of the appellant, so far his right to file eviction application' under the law. Accordingly, the said contention of learned counsel has no merit and substance. 15. The third contention of the learned counsel for appellant is that an amount of Rs.90,000/- was lying with the respondent therefore the latter could have adjusted rent from the said amount and therefore the finding of Rent Controller on the point of. Default was based on misappreciation of the evidence on record. Para 3 of the tenancy agreement dated 1.2,92 runs: "That the monthly rent is Rs.4,000/- (Rupees Four Thousand only). The second party shall pay Rs.2,000/- (Rupees Two Thousand) shall be adjusted towards the Adjustable Advance Rent upto the month of June. 1992 and from July, 1992 to October, 1992, the rent of Rs.4,000/- will be received in cash/cheque and further from November, 1992 and onwards the rent will be Rs.1 1,000/-per month and the same to be paid upto 5th day of each English Calendar month in advance." 16. From the above provision, it would appear that from November, 1992 onwards the rent would be Rs.1 1,000/- per month and same shall be paid by 5th of each calendar month in advance. There is nothing that any amount was in balance with the respondent or that some portion of the said rent or the entire rent was to be adjusted from the balance if any with the respondent. Para 17 of the said agreement further states:
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"That the first party both hereby undertake to refund the Fixed Deposit of Rs.39,000/- (Rupees Thirty Nine Thousand only) to the second parts without any interest/profit thereon which was received as Security Deposit, subject to adjustment of any loss harm to the property and subject to deduction of dues, if-any, and without any interest/profit thereon." 17. The above provision confirms the above interpretation of para 3 of the said agreement though there was only an amount of Rs.39,000/- towards the fixed deposit with the respondent which was to be refunded subject to its adjustment towards the loss/harm to the property and was not to be adjusted towards the rent, In addition to the above two provisions contained in the admitted documents between the parties -there is a receipt Ex.A/9 wherein it has been said to have been acknowledged by the appellant/tenant to have received cash amount of Rs.81,000 - from the respondent from the remaining balance of unadjusted advance rent, though the signature on this document has been denied to be of the appellant/tenant by his learned counsel but it would not be out of place to state here that the appellant/tenant nowhere in the written statement stated as to what was left imbalance from the sum of Rs.2,00,000/- paid by him to the respondent though he stated that an amount of Rs.2.00,000/- was deposited with the respondent from which monthly rent could have been adjusted. If there would have been any balance left then he could have stated so in the written statement though admittedly some amount out of Rs.2,00,000/- must have been adjusted as per terms of agreement and some of it must have been left which as per Ex.A/9 was paid in cash to the appellant/tenant. In fact, the appellant/tenant cross-examined the respondent wherein latter stated that out of Rs.2.00,000/- given by the former, advance rent amounting to Rs.I.I9,000/- was adjusted and balance pf Rs.81,000/- was refunded to the appellant/tenant. In cross- examination respondent/landlady denied the suggestion that still there was outstanding balance of Rs.81,000/- lying with her and that she has managed forged receipt in respect of refund of the balance amount of Rs.81,000/-. 18. However, in view of the contentions of the parties and evidence on record, the question about the balance of amount, if any lying with the respondent could be decided by the competent civil Court in civil suit not in the rent proceedings. In view of the terms of last tenancy agreement as per Clause 3 of the said agreement an amount of Rs.1 1,000/- is to be paid per month by 5th of each calendar month in advance and the security deposit could not be adjusted towards the future rent. I am supported by a case reported in Mrs. Zarina Khawaja v. Agha Mehboob Shah (PLD 1988 S.C. 190) at page 201: 4 "The next question (sixth) is to be answered in the light of the foregoing discussion, in the negative. The security deposit in this case is to be applied by the landlord, according to the terms quoted earlier, to/ compensate himself at the time of the tenant handing over possession to him, for unpaid rent and/or damages caused by the tenant to the property at any time. Its application by the High Court for absolving the tenant- respondent from liability to make a deposit under section 16(2) and old 13(6) is impermissible and unlawful. The default remained intact notwithstanding the security deposit. It is clarified that the covenant in each agreement as to security will be construed according to the agreement itself." I am also supported by a case reported in Syed Asghar Ali Imam v. Muhammad Ali (PLD 1988 S.C.228) at page 231 :- "The second question as already analysed depends…
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