P L J 1983 Qnettm 49
Before; muftakhiruddin, J MUHAMMAD YAQUB—Appellant
versus
Master MUHAMMAD SHAFI and Another—Respondents
First Appeal from Original Order No, 31 of 1981. decided on 4-9-1982.
(!) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)-
------ S. ! 3 (6)—Rent—Deposit of—Order of—Non-compliance of—Defence— Striking off—Tenant surreptitiously making payment of rent without disclosing month for which rent tendered and even making manipulations and erasures on challans—Landlord neither alleged nor proved to have acquired knowledge of default made showing his having consciously or knowingly waived right—//eW: Mere delay in assertion of right in circumstances not to defeat it—Held further : No time having been prescribed for making application under S. 13(6). landlord whenever acquiring knowledge of default during pendency of proceedings to be competent to move Rent Controller for sinking off defence of tenant. [P. 49] A & C PLJ 1982 SC 127; 1982 CLC 772 &. PLD 1972 Kar. 778 ref.
PLD 1965 Lah. not followed
(ii) West Pakistan Urban Rent Restriction Ordinance, (VI of 1959)—
——Ss. 13(6)& 15—Defence—Striking off—Order of—Appeal against—Rent Controller duly considering circumstances relied upon by tenant and coming to conclusion that appellant not prevented by same from complying with order of deposit of rent— Held: Circumstances being not such as to prevent tenant . from depositing rent by due date and default within meaning of law having been made. Rent Controller rightly struck off defence and no justification made out for interference in appeal.
[Pp. 50 & 51] E&F
PLJ 1974 Kar. 2; PLD 1967 SC 530; 1982 CLC 859: 1982 SCMR 1195 A PLD 1963Quetta 16 ref.
(Hi) W»im—
------ Doctrine of—-Ingredients—Held : Knowledge of right and its intentional relinquisbment being sine qua non to establish plea of waiver, without knowledge there be no waiver, [P. 49} B & D
Principles and Digest to Law of Evidence by M. Munir (1969 Edn.) p. 359 ref.
Mr .-Muhammad Moquim Ansart, Advocate for Appellant, Malik Sultan Muhammad. Advocate for Respondent No. I. Respondent No'. 2 : Ex parts. Dates of hearing : 21/25-8-1982.
judgment
The dispute in this case is about a house bearing Municipal No. 6-7/78 (15) Toghi Road, Quetta. The respondent (hereinafter referred to as the "landlord") has filed an application for the eviction of the appellant (hereinafter called the "tenant") from that house. In the course of proceedings the Rent Controller on 15-7-1979 passed an order directing the tenant/apellan* to deposit the arrears of rent within the date fixed therein and the future rent, in accordance with section ! 3 (6) of the West Pakistan Urban Rent Restriction Ordinance VI of 1959 (hereinafter referred to as the Ordinance). As the tenant made default in the payment of rent for the month of June, 1980 the landlord applied on 1-6-1981 that the defence of the tenant should be struck off and the landlord be put in possession of the house. The tenant filed a reply in which he took the stand that (/) that the default pertained to the month of June 1980 which amounts to waiveHn view of the decision in P L D 1965 Lab. 1|. (il) That the respondent has been depositing ihe rent continuously and legally speaking there is no default in depositing ;he rent. If at all there is any delay of two or three days in respect of the depositing of the rent pertaining to the month of June 1980 that is not legally considerable in view of the legal objection. In fact the respondent was seriously ill and had undergone and operation with the result that the delay of two or three days had occurred.
2. The application of the landlord was heard or 17-7.1981 and 25-8-1981 and was fixed for orders on 31-8-1981. However, on 30-8-3981 the tenant made an application and filed a medical certificate. After con sidering the objections made on behalf of the tenant the landlord Control- lei struck off the defence and passed an order of eviction on 31-8-1981. The present appeal is against this order.
3. Mr. Muhammad Moquim Ansari, Advocate, appearing for the appellant has raised two-fold contentions before me, (f) that the application for striking off the defence was belated and amounts to waiver, (il) That the learned Controller has not afforded opportunity to the tenant/appel lant to prove his plea of defence namely illness due to "which delsy in depo siting the rent took place. 1 enquired from the learned counsel if any application explaining the reasons for default was made* when the rent was tendered on 17-7-1981 and his reply was in the negative. ! have also seen thechallen whereby the rent has been deposited. It is found thai the
appellant had surruptitiously made payment of rent without disclosing to the Court the month for which the rent was to be paid. The cballen con'ains anipulation/erasures. (I have shown the same to the counsel for the •ppellant and have encircled the same). The learned counsel for the apellant
could not give any satisfactory explanation as to why this eranion was made or why the month for which the rent was tendered wa;> not mentioned. In my opinion this was done by the tenant with a apparent desire that the default may not be detected as the challan was being presented for approval of the Court on 17-7-1981 and the due date had already expired.
I am constrained to hold that the plea of illness is an afterthought inasmuch as it was not put forward before the Controller when he had sought permission from him to deposit the rent on 17-7-1981 and surruptitiously filed in the challan without mentioning the month/months for which the rent was being tendered.
4. It is submitted by Mr. Mohammad Moquim Ansari thai the default in payment of rent was made for the month of June, 1980 while the applica tion was filed on 10-6-1981 after about one year therefore the landlord should be deemed to have waived the default and in support of his submis sion relied on Syed Masood Hussain and others v. Muhammad Saeed Khan and others (PLD 1965 Lah. 11) Such a plea of waiver also came up for consideration before the Karachi Bench in P L D 1972 Kar. 278 and m M. A. Yahya v. Nawab Abdul Malik Ettales Ltd. (1982 CLC 772) amt in the latter case Mr. Justice Naimuddin referring Munir'i book entitled "Principle**nd Digest a/...the Low of-Evidence'I J96fl Hditiortjquoted page 359 which reads :— .£...;/.- ,-V
"Waiver i» an intentional rdinquishmeni of a known right, or such con duct «s warrants an inference of the nelinquishmcnt of such right; it implies consent to dispense with or forego something to which a person is entitled, ft is contractual and may constitute a cause of action. It is an agreement to release or not to assert a fight. Mere omission to claim or enforce a right for some tint: does not amount 10 waiver of the right." (Italics i& mine). .
In the present case it j.s nut alleged nor proved that the landlord hadl squired knowledge of default made which could show that he had con-| jcious!)' or knowingly waived the right Rcthcr ibe fact by the perusal of| the challan has come to light that ths tenant/appellant has surruptiticusJyj made payment of rent without disclosing the month for which he had ten-} dered the rent and even manipulations/erasures have been made so that it <* could not be known. The default came to light when the landlord made an application forjhc refund of the rent and came to know that. some, rent has been tendered without mentioning [be period for which it relates. In iuch circumstances mere delay in the assertion of the right would not defeat it.
Without knowledge of the right there can be no waiver. When a tenant deposits monthly rent no notice is issued to the landlord either by him or the Court. No duty is cast under the law on the landlord to enquire every]* . month whether the tenant is depositing the rent or not, therefore, whenever .the landdord acquires knowledge of the default he can. during the pendency of the proceedings, make.the application, for no time has been prescribed for making an application under section 13 ($) of the Ordinance for striking off the defence of the tenant. Knowledge of the right and its intentiona relinquisbmcnt are sine qua non to establish a plea of waiver.
The case relied upon by the learned counsel for the appellant does not. lay down the principles of general application that if application for striking off the defence is made later, it should v? presumed that the landlord hai waived ihe benefit of Clause (6) of section 13 of the Ordinance. The views taken in P L D 1965 Lab. 11 were considered in P L D 1972 Kar, 278, 1982 C L C 772 and PLJ 1982 SCf27 and dissented. The Supreme Court of Pakistan in Muhammad Saleh v. Mohammad Shaft (PLJ 1982 SC 127) has held:
r
To establish "waiver by conduct" it must be .shown firstly th«t tb.e. person entitled to right had knowledge, of the breach thereof and secondly thaj he had acquiesced or failed to act notwithstanding that knowledge- Therefore, mere fail ore to object or to take action due to ignorance of breach of right Cannot be said to five rise to any 'waiver by conduct'."
5. Now there remain ibe«onientiora of the learned counsel that th* tenant should have been given opportunity to lead evidence in support of his plea that he has failed because of his fitness. The grievance of th« , learned counsel for the appellant before me was that the tenant/appellant should have been given opportunity to lead evidence. From the record it transpirer that after.Jhe reply filed on behalf of the tenant ifte matter was fixed for H-7rl»81.-:«o<J.25-8-l-9*l- ;i?ut tbfr tenaat neither madehiiowti lent in Court nor. -examined any witness and when tfcecAsewai rjbr orders, thjs.ft^plica'.ion for .bringing on record the medical certificate was made. It hts been rightly contended by the counsel appearing for tie landlord/ respondent that the stand taken in the reply filed by thc-vteaaat to theapplicatiMt dated 10-6-1981 made by the landlord and the subsequent plea was cbnt'radicidry. In the reply the tenant has said: "In fact'.the res pondent was seriously ill and had undergone an operation with the result that 4clay of two or three days fyad occurred*.', and the medical certificate l? enclosed with the later application disclosed that Mohammad Yiiqoob was an O.P.D. patient up to 26-7-1980 and was admitted in Hospital on 18-8-1980. What was his condition up to 26-7-1980 was not proved. I am therelofe
constrained to hold that the pieaof illness is not bonaftds,"zn afterthought inasmuch as it was not put forward before the Controller when'he had sought permission for depositing of rent on 17-7-1980. In the circumstances of the case he wasnot entitled to indulgence by Ac Controller as he bad Hot come with clean bands. Besides the plea of illness could not advance hi* ase. A. Division Bench of this Court in Abdul Majeed v. Saadiillah 1PLD 1963 Quetta 16) has observed at page 20 :— . .'
"But to entitle the tenant to a condonation it seems imperative that be must without any avoidable loss of time offer to make good the p*|P* ment, explaining at the'same time the circumstances for the delay. In'the present cast however, even accepting the allegations of the appellant regarding his illness, we have no hesitation in holding that the default on his part was'negligent if not wilful. If tie bad really fallen ill st - should not have made him forget his obligation in respect of the case that be was fighting against the landlords to retain possession t>f the disputed premises and if he was prevented from attending the Court himself to deposit the arrears as directed by the Controller on the due date, he could easily have commissioned someone to do so. He could have easily got in touch with his counsel for the purpose."
This D. B. Judgment of this Court was followed in PLJ 1974 Kar. 2 and 1982 C L C 859. A case on all foafs is found in Ptr Jndyat'Shah v. 4gha Muhammad (19^1 SCMR 1195). Mr. Justice Musbtaq HussaiB <t» ke '.hen was) who wrote the judgment for the Bench has observed •—"The tenant failed to deposit the rent. He however, neither broa|M» these defaults te the notice of the Court nor did he ask for condonation 'of the delay wh,en the landlord applied for of the defence of the,.tenant be explained the. default on the ground ot illness .which wmi 'duly brushed aside by thelient Controller a^d the appellate Court."
'4. It has been urged before us that the failure to deposit rent was on account of .'illness, a circumstance.which was not under the petitioner'* control; "TKis Is an untenable excuse since the .petitioner was not required by law to go to deposit the rent personally and any meicrtwr of the family or 'a servant 'could have gone and performed this duty."
The circumstances, relied upon were duly considered by the Rent Con-trolkr and he came to the conclusion that they were not of a nature which coold proven? ttee-appellant from complying with the prders of' deppsU of islrent. Even :if'th< contention as contliijsd. in thts reply fs accepted §tk» face value, it does' not establish that illness was of ^siich. k nature- which prevented him to :go or contact his lawyer. J^yeti if I wefe to 'examine tbe circumstances, 1 would have come to the same conclusion that the circu»- »t*rices were not such so, to prevail the appellant from depositing the rentl by the due date. In other words this is nqt a case where it can be said! lhat theie was no default within the meaning of law. The Supreme Court! of Pakistan in Ghulam Muhammad Khan Lundkhof \. Safdar AH tf>LD 19671 S C 530) has-b^'d about the consequences of default as follows :—'Having regard to the language of" this subsection we find it difficult to accept that the Legislature intended to leave it to the direction of the Rent Controller to decide whether he would or would not in a given case enforce the default clause. The Legislature itself having provided for the consequence of a default has used mandatory words to direct the Rent Controller to enforce the consequence. The object of ihil subsection is nos so much to hfford-the landlord an expeditious method of realising the rent-but rather to protect a tenant who it mindful of his obligation from eviction In interpreting the provisions:of Ordinance it must not be overlooked lhat the provisions thereof purport not only to curtail seriously the rights that a landlord enjoys under the general law, as contained in the Transfer of Property Act, of evicting a tenant by merely serving upon him a notice to quit but also to co-relatively-give special benefits and protections to tenants under certain conditions. Upon general principles, therefore, where a statute grants a privilege upon certain conditions ihe person seeking the privilege must show that he hat strictly complied with those conditions. Unless those conditions are strictly fulfilled the privilege will not be available or theo;her party deprived of bis rights under the law (vtde Maxwell, page 285. 11th Edition)."
As a result I find that the defence was rightly struck off and no jus'tifi-j cation is made out for interference, in appeal. The appeal has no merit's^ and is accordingly dismissed with costs throughout. Since there is scarcity] of houses in the Town, I allow the appellant 2 months' time to vacate the house.
(TQM)
Appeal dismissed.
Before; muftakhiruddin, J MUHAMMAD YAQUB—Appellant
versus
Master MUHAMMAD SHAFI and Another—Respondents
First Appeal from Original Order No, 31 of 1981. decided on 4-9-1982.
(!) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)-
------ S. ! 3 (6)—Rent—Deposit of—Order of—Non-compliance of—Defence— Striking off—Tenant surreptitiously making payment of rent without disclosing month for which rent tendered and even making manipulations and erasures on challans—Landlord neither alleged nor proved to have acquired knowledge of default made showing his having consciously or knowingly waived right—//eW: Mere delay in assertion of right in circumstances not to defeat it—Held further : No time having been prescribed for making application under S. 13(6). landlord whenever acquiring knowledge of default during pendency of proceedings to be competent to move Rent Controller for sinking off defence of tenant. [P. 49] A & C PLJ 1982 SC 127; 1982 CLC 772 &. PLD 1972 Kar. 778 ref.
PLD 1965 Lah. not followed
(ii) West Pakistan Urban Rent Restriction Ordinance, (VI of 1959)—
——Ss. 13(6)& 15—Defence—Striking off—Order of—Appeal against—Rent Controller duly considering circumstances relied upon by tenant and coming to conclusion that appellant not prevented by same from complying with order of deposit of rent— Held: Circumstances being not such as to prevent tenant . from depositing rent by due date and default within meaning of law having been made. Rent Controller rightly struck off defence and no justification made out for interference in appeal.
[Pp. 50 & 51] E&F
PLJ 1974 Kar. 2; PLD 1967 SC 530; 1982 CLC 859: 1982 SCMR 1195 A PLD 1963Quetta 16 ref.
(Hi) W»im—
------ Doctrine of—-Ingredients—Held : Knowledge of right and its intentional relinquisbment being sine qua non to establish plea of waiver, without knowledge there be no waiver, [P. 49} B & D
Principles and Digest to Law of Evidence by M. Munir (1969 Edn.) p. 359 ref.
Mr .-Muhammad Moquim Ansart, Advocate for Appellant, Malik Sultan Muhammad. Advocate for Respondent No. I. Respondent No'. 2 : Ex parts. Dates of hearing : 21/25-8-1982.
judgment
The dispute in this case is about a house bearing Municipal No. 6-7/78 (15) Toghi Road, Quetta. The respondent (hereinafter referred to as the "landlord") has filed an application for the eviction of the appellant (hereinafter called the "tenant") from that house. In the course of proceedings the Rent Controller on 15-7-1979 passed an order directing the tenant/apellan* to deposit the arrears of rent within the date fixed therein and the future rent, in accordance with section ! 3 (6) of the West Pakistan Urban Rent Restriction Ordinance VI of 1959 (hereinafter referred to as the Ordinance). As the tenant made default in the payment of rent for the month of June, 1980 the landlord applied on 1-6-1981 that the defence of the tenant should be struck off and the landlord be put in possession of the house. The tenant filed a reply in which he took the stand that (/) that the default pertained to the month of June 1980 which amounts to waiveHn view of the decision in P L D 1965 Lab. 1|. (il) That the respondent has been depositing ihe rent continuously and legally speaking there is no default in depositing ;he rent. If at all there is any delay of two or three days in respect of the depositing of the rent pertaining to the month of June 1980 that is not legally considerable in view of the legal objection. In fact the respondent was seriously ill and had undergone and operation with the result that the delay of two or three days had occurred.
2. The application of the landlord was heard or 17-7.1981 and 25-8-1981 and was fixed for orders on 31-8-1981. However, on 30-8-3981 the tenant made an application and filed a medical certificate. After con sidering the objections made on behalf of the tenant the landlord Control- lei struck off the defence and passed an order of eviction on 31-8-1981. The present appeal is against this order.
3. Mr. Muhammad Moquim Ansari, Advocate, appearing for the appellant has raised two-fold contentions before me, (f) that the application for striking off the defence was belated and amounts to waiver, (il) That the learned Controller has not afforded opportunity to the tenant/appel lant to prove his plea of defence namely illness due to "which delsy in depo siting the rent took place. 1 enquired from the learned counsel if any application explaining the reasons for default was made* when the rent was tendered on 17-7-1981 and his reply was in the negative. ! have also seen thechallen whereby the rent has been deposited. It is found thai the
appellant had surruptitiously made payment of rent without disclosing to the Court the month for which the rent was to be paid. The cballen con'ains anipulation/erasures. (I have shown the same to the counsel for the •ppellant and have encircled the same). The learned counsel for the apellant
could not give any satisfactory explanation as to why this eranion was made or why the month for which the rent was tendered wa;> not mentioned. In my opinion this was done by the tenant with a apparent desire that the default may not be detected as the challan was being presented for approval of the Court on 17-7-1981 and the due date had already expired.
I am constrained to hold that the plea of illness is an afterthought inasmuch as it was not put forward before the Controller when he had sought permission from him to deposit the rent on 17-7-1981 and surruptitiously filed in the challan without mentioning the month/months for which the rent was being tendered.
4. It is submitted by Mr. Mohammad Moquim Ansari thai the default in payment of rent was made for the month of June, 1980 while the applica tion was filed on 10-6-1981 after about one year therefore the landlord should be deemed to have waived the default and in support of his submis sion relied on Syed Masood Hussain and others v. Muhammad Saeed Khan and others (PLD 1965 Lah. 11) Such a plea of waiver also came up for consideration before the Karachi Bench in P L D 1972 Kar. 278 and m M. A. Yahya v. Nawab Abdul Malik Ettales Ltd. (1982 CLC 772) amt in the latter case Mr. Justice Naimuddin referring Munir'i book entitled "Principle**nd Digest a/...the Low of-Evidence'I J96fl Hditiortjquoted page 359 which reads :— .£...;/.- ,-V
"Waiver i» an intentional rdinquishmeni of a known right, or such con duct «s warrants an inference of the nelinquishmcnt of such right; it implies consent to dispense with or forego something to which a person is entitled, ft is contractual and may constitute a cause of action. It is an agreement to release or not to assert a fight. Mere omission to claim or enforce a right for some tint: does not amount 10 waiver of the right." (Italics i& mine). .
In the present case it j.s nut alleged nor proved that the landlord hadl squired knowledge of default made which could show that he had con-| jcious!)' or knowingly waived the right Rcthcr ibe fact by the perusal of| the challan has come to light that ths tenant/appellant has surruptiticusJyj made payment of rent without disclosing the month for which he had ten-} dered the rent and even manipulations/erasures have been made so that it <* could not be known. The default came to light when the landlord made an application forjhc refund of the rent and came to know that. some, rent has been tendered without mentioning [be period for which it relates. In iuch circumstances mere delay in the assertion of the right would not defeat it.
Without knowledge of the right there can be no waiver. When a tenant deposits monthly rent no notice is issued to the landlord either by him or the Court. No duty is cast under the law on the landlord to enquire every]* . month whether the tenant is depositing the rent or not, therefore, whenever .the landdord acquires knowledge of the default he can. during the pendency of the proceedings, make.the application, for no time has been prescribed for making an application under section 13 ($) of the Ordinance for striking off the defence of the tenant. Knowledge of the right and its intentiona relinquisbmcnt are sine qua non to establish a plea of waiver.
The case relied upon by the learned counsel for the appellant does not. lay down the principles of general application that if application for striking off the defence is made later, it should v? presumed that the landlord hai waived ihe benefit of Clause (6) of section 13 of the Ordinance. The views taken in P L D 1965 Lab. 11 were considered in P L D 1972 Kar, 278, 1982 C L C 772 and PLJ 1982 SCf27 and dissented. The Supreme Court of Pakistan in Muhammad Saleh v. Mohammad Shaft (PLJ 1982 SC 127) has held:
r
To establish "waiver by conduct" it must be .shown firstly th«t tb.e. person entitled to right had knowledge, of the breach thereof and secondly thaj he had acquiesced or failed to act notwithstanding that knowledge- Therefore, mere fail ore to object or to take action due to ignorance of breach of right Cannot be said to five rise to any 'waiver by conduct'."
5. Now there remain ibe«onientiora of the learned counsel that th* tenant should have been given opportunity to lead evidence in support of his plea that he has failed because of his fitness. The grievance of th« , learned counsel for the appellant before me was that the tenant/appellant should have been given opportunity to lead evidence. From the record it transpirer that after.Jhe reply filed on behalf of the tenant ifte matter was fixed for H-7rl»81.-:«o<J.25-8-l-9*l- ;i?ut tbfr tenaat neither madehiiowti lent in Court nor. -examined any witness and when tfcecAsewai rjbr orders, thjs.ft^plica'.ion for .bringing on record the medical certificate was made. It hts been rightly contended by the counsel appearing for tie landlord/ respondent that the stand taken in the reply filed by thc-vteaaat to theapplicatiMt dated 10-6-1981 made by the landlord and the subsequent plea was cbnt'radicidry. In the reply the tenant has said: "In fact'.the res pondent was seriously ill and had undergone an operation with the result that 4clay of two or three days fyad occurred*.', and the medical certificate l? enclosed with the later application disclosed that Mohammad Yiiqoob was an O.P.D. patient up to 26-7-1980 and was admitted in Hospital on 18-8-1980. What was his condition up to 26-7-1980 was not proved. I am therelofe
constrained to hold that the pieaof illness is not bonaftds,"zn afterthought inasmuch as it was not put forward before the Controller when'he had sought permission for depositing of rent on 17-7-1980. In the circumstances of the case he wasnot entitled to indulgence by Ac Controller as he bad Hot come with clean bands. Besides the plea of illness could not advance hi* ase. A. Division Bench of this Court in Abdul Majeed v. Saadiillah 1PLD 1963 Quetta 16) has observed at page 20 :— . .'
"But to entitle the tenant to a condonation it seems imperative that be must without any avoidable loss of time offer to make good the p*|P* ment, explaining at the'same time the circumstances for the delay. In'the present cast however, even accepting the allegations of the appellant regarding his illness, we have no hesitation in holding that the default on his part was'negligent if not wilful. If tie bad really fallen ill st - should not have made him forget his obligation in respect of the case that be was fighting against the landlords to retain possession t>f the disputed premises and if he was prevented from attending the Court himself to deposit the arrears as directed by the Controller on the due date, he could easily have commissioned someone to do so. He could have easily got in touch with his counsel for the purpose."
This D. B. Judgment of this Court was followed in PLJ 1974 Kar. 2 and 1982 C L C 859. A case on all foafs is found in Ptr Jndyat'Shah v. 4gha Muhammad (19^1 SCMR 1195). Mr. Justice Musbtaq HussaiB <t» ke '.hen was) who wrote the judgment for the Bench has observed •—"The tenant failed to deposit the rent. He however, neither broa|M» these defaults te the notice of the Court nor did he ask for condonation 'of the delay wh,en the landlord applied for of the defence of the,.tenant be explained the. default on the ground ot illness .which wmi 'duly brushed aside by thelient Controller a^d the appellate Court."
'4. It has been urged before us that the failure to deposit rent was on account of .'illness, a circumstance.which was not under the petitioner'* control; "TKis Is an untenable excuse since the .petitioner was not required by law to go to deposit the rent personally and any meicrtwr of the family or 'a servant 'could have gone and performed this duty."
The circumstances, relied upon were duly considered by the Rent Con-trolkr and he came to the conclusion that they were not of a nature which coold proven? ttee-appellant from complying with the prders of' deppsU of islrent. Even :if'th< contention as contliijsd. in thts reply fs accepted §tk» face value, it does' not establish that illness was of ^siich. k nature- which prevented him to :go or contact his lawyer. J^yeti if I wefe to 'examine tbe circumstances, 1 would have come to the same conclusion that the circu»- »t*rices were not such so, to prevail the appellant from depositing the rentl by the due date. In other words this is nqt a case where it can be said! lhat theie was no default within the meaning of law. The Supreme Court! of Pakistan in Ghulam Muhammad Khan Lundkhof \. Safdar AH tf>LD 19671 S C 530) has-b^'d about the consequences of default as follows :—'Having regard to the language of" this subsection we find it difficult to accept that the Legislature intended to leave it to the direction of the Rent Controller to decide whether he would or would not in a given case enforce the default clause. The Legislature itself having provided for the consequence of a default has used mandatory words to direct the Rent Controller to enforce the consequence. The object of ihil subsection is nos so much to hfford-the landlord an expeditious method of realising the rent-but rather to protect a tenant who it mindful of his obligation from eviction In interpreting the provisions:of Ordinance it must not be overlooked lhat the provisions thereof purport not only to curtail seriously the rights that a landlord enjoys under the general law, as contained in the Transfer of Property Act, of evicting a tenant by merely serving upon him a notice to quit but also to co-relatively-give special benefits and protections to tenants under certain conditions. Upon general principles, therefore, where a statute grants a privilege upon certain conditions ihe person seeking the privilege must show that he hat strictly complied with those conditions. Unless those conditions are strictly fulfilled the privilege will not be available or theo;her party deprived of bis rights under the law (vtde Maxwell, page 285. 11th Edition)."
As a result I find that the defence was rightly struck off and no jus'tifi-j cation is made out for interference, in appeal. The appeal has no merit's^ and is accordingly dismissed with costs throughout. Since there is scarcity] of houses in the Town, I allow the appellant 2 months' time to vacate the house.
(TQM)
Appeal dismissed.
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