1991 PLP 339 (CLC)

6. It may be added that even if the partnership agreement is accepted as a genuine document, transfer of tenancy rights cannot take place solely on the basis of the terms and conditions contained in the said partnership agreement. Admittedly the rent agreement between the respondent and Ikramuddin was executed in December, 1968. Under this agreement respondent agreed to rent out the shop T to Ikramuddin and not to. any partnership or to Ikramuddin and Muhammad Mobin jointly On the basis of the partnership agreement to which the respondent is not a party, the tenancy rights cannot be‑transferred unilaterally from Ikramuddin or his legal heirs to Muhammad Mobin.

7. The main argument on behalf of the appellant Muhammad Mobin advanced by Mr. Nasim A. Faruqui, Advocate, was that, since the commencement of tenancy, business was being carried on by Muhammad Mobin in the shop premises and, after the death of 1kramuddin in 1973, Muhammad Mobin has been singly carrying on business and even if Ikramuddin had assigned his interest without the express consent of the respondent to Muhammad Mobin, the respondent sat over his right to eject Muhammad Mobin and thereby waived his right to proceed against the legal heirs of 1kramuddin and Muhammad Mobin for ejectment. It was pointed out by Mr. Nasim A. Faruqui that the adjacent premises also belonged to the respondent and, therefore, it has to be assumed that all along the respondent was aware that Mohammad Mobin was in occupation and carrying on business in the said shop but for the first time in 1979 when this ejectment application was filed a plea was. taken that the premises had been sublet and‑by that time the right of the respondent to claim ejectment on the ground of subletting stood extinguished by the operation of law.

8. For the proposition that where a landlord is aware that subletting or assignment of tenancy has taken place but he does not take any legal action for ejectment for a long period, it is to be presumed that the landlord has waived his right to seek ejectment and in such an event an order of ejectment cannot be passed on the ground of subletting or assignment, Mr. Nasim A. Faruqui has relied upon the following judgments:‑‑ (i) Haji Dawood v. Raflima Bai P L D 1980 Karachi 126. (ii) Rais Illahi Bux v. Inamullah N L R 1981 A C 315., (iii) Muhammad Ahmed v. Oamar Anwar Sheikh 1980 C L C 664. (iv) Abdul Karim v. Manzoor Ahmed 1980 C L C 1498. (v) Badruddin H. Mavani v. Government of Pakistan 1982 C L C 44.

9. Mr. S. M. Akhtar Rizm learned counsel for the respondent argued that the said judgments relied upon by Mr. Nasim A. Farqui are distinguishable and that in any case no general principle has been laid down in any of the aforesaid judgments that an ejectment application filed on the ground of subletting by the tenant is liable to be dismissed on account of inaction of the landlord to take legal proceedings for some length of time. Mr S.M. Akhter Rizvi, on the other hand, held upon the judgment of a learned Single Judge of the Lahore High Court in the case of Muhammad Hafeez v. Muhammad Suleman (1979 C L C 756) for the proposition that mere in action on the part of the landlord does not amount to waiver especially when no period of limitation has been prescribed by law for seeking ejectment of a tenant on the plea of subletting. Mr. Rizvi also relied upon the judgment of the Supreme Court in the case of Premier Mercantile Service v. S.M. Younus (P L D 1982 SC 79).

10. The decision of this appeal depends on the question whether mere inaction for some period on the part of the landlord to initiate legal proceedings for ejectment of a tenant on the ground of subletting or assignment amounts to waiver of his right under the Rent Restriction Ordinance to eject the tenant and as a consequence ejectment application on such ground is liable to be dismissed. In this case admittedly there is no express consent for assignment or subletting of the premises by the landlord. In some of the affidavits in evidence filed in support of the case of Muhammad Mobin it is stated that the premises had been taken by Mohammad Mobin on `pugri' from lkramuddin. Affidavits of Ghulam Murtaza (Exh.5) and Saeedur Rehman (Exh. 6) are to this effect but these witnesses were given up by Muhammad Mobin. In any case, the affidavits in evidence of these 2 witnesses are on record. As observed earlier, the entire case of Muhammad Mobin rests upon the submission made by Mr. Nasim A. Faruqui that for nearly 12 years i.e. from 1968 to 1979 when the ejectment application was filed or in any case since the death of Ikramuddin in 1973 i.e. for at least 6 years Muhammad Mobin had been carrying on business in the shop in question and this was in the knowledge of the respondent who was carrying on business in the adjacent shop but despite this, the respondent did not take any action and slept over the matter till 1979 when he filed this ejectment application and, in the circumstances; under the law, it will be presumed that the respondent had waived his right to claim ejectment and as a result the ejectment application was liable to be dismissed.

11. In my view, on account of mere inaction for some length of time on the part of the landlord to initiate proceedings for ejectment of the tenant on the ground of subletting or assignment without the express or implied consent of the landlord, the law will not presume that the landlord has waived his right or that his right would stand extinguished and the landlord cannot claim ejectment in such a case on the ground of subletting. If the proposition as advanced by Mr. Fararuqui is accepted, it would lead to the conclusion that mere inaction on the part of the landlord to initiate proceedings for ejectment of a tenant on the ground of subletting or assignment of tenancy rights, the tenancy rights stand transferred to the sublet tee or assignee by operation of law. This proposition is not warranted by any principle of law. 12. 1 may now refer to the judgments relied upon by Mr. Nasim A. Faruqui in support of the proposition advanced by him. In P L D 1980 Karachi 126 the building in question was constructed by one Samandar Khan, husband of the respondent, in 1935 and thereafter he had remained the tenant of Usman Khan in the said premises. For the consideration that Samandar Khan had raised the construction from his own funds and had subsequently developed T.B., Usman Khan had permitted Samandar Khan to sublet a portion of the premises in order to supplement his income. The appellant purchased the property in the year 1958 and the evidence showed that even after his becoming the owner of the premises, the appellant did not object to the subletting of the aforesaid portion of the premises by Samandar Khan. Samandar Khan died in 1966 and the tenancy devolved, by operation of law, upon his widow, the respondent. In 1967, the appellant filed an application for ejectment alleging that in September 1966, the portion of the premises had been sublet to a person by the respondent and it was alleged that this was done without the consent in witting of the appellant. The Rent Controller and the First Appellate Authority took the view that by longstanding practice during the days of the previous landlord as well as the landlord (the appellant) the respondent and her husband (the previous tenant) were impliedly allowed to sublet the disputed portion and, therefore, the appellant had waived, by his conduct, the requirement for obtaining his consent in writing. This case is distinguishable from the present case. In the aforesaid case, the previous landlord had allowed the tenant to sublet a portion of the premises in order to supplement his income for 2 reasons i.e. the tenant had constructed building and, secondly, he had developed T.B. The landlord had, therefore, allowed the tenant to sublet the premises. In the present case the only plea that can be raised is that the landlord had not taken any action for several years for ejectment of the tenant on the ground of subletting.

13. In 1982 C L C 44, it was observed that the waiver, abandonment or lapsing of a right, legally capable of being waived, abandoned or lapsed may either be expressly made by the person concerned, or it may be inferred from his conduct and all other attending circumstances of the case. The principle laid down in this Division Bench judgment of this Court does not lead to a further principle that mere inaction on the part of the landlord to initiate legal proceedings for the ejectment of a tenant on the ground of subletting for some length of time would ipso facto amount to waiver of his right to claim ejectment although the law provides that the tenant cannot sublet the premises without the written consent of the landlord and no period of limitation is provided for filing an ejectment application. In N L R 1981 A C 315, a contention has been raised that the subletting had taken place in 1971 and the landlord had accepted the rent some time from the sub‑tenant and, therefore, the landlord had acquiesced in the subletting and by failing to object to the same for full 4 years and having taken no step during this period to file ejectment proceedings against the tenant, the landlord was deemed to have waived his right in respect of the said subletting. This proposition was accepted by a learned Single Judge of this Court. This judgment is also distinguishable as according to the facts mentioned the landlord had accepted rent from the sub‑tenant which is not the case here. In 1980 C L C 664, which related to a case for ejectment on the ground of default, while considering the meaning of word "waiver", learned Single Judge of this Court observed as follows:‑ "The term `waiver' implies the intentional relinquishment of a known right after knowledge of the facts. It implies the intentional forbearance to enforce. right and necessarily, therefore, assumes the existence of an opportunity for choice between the relinquishment and the enforcement of the right. When the respondent (the landlady) accepted the rent in August, 1.965, if she had any intention to enforce her right of ejectment she would not have accepted further rent for another period of fifteen months without resorting to ejectment proceedings in the meantime. No explanation was given why the action for ejectment was not taken during this time. I have, therefore, come to the conclusion that it has been established on the evidence on record that the respondent had waived her right to eject the appellant and, therefore, she was not entitled to the relief claimed." In this judgment, the Court was dealing with an entirely different situation. Admittedly there was a default for certain period but, before the filing of the ejectment application, the landlady had accepted the arrears of rent. On account of this overt act on the part of the landlady in accepting the rent it was held that the landlady had waived her right to eject the tenant on account of default in the payment of rent. The last case on which reliance is placed by the learned counsel for the appellant is 1986 C L C 1498, a decision of a learned Single Judge of this Court. In this case the landlord/tenant had filed an ejectment application on the ground that respondent No.1, who was a tenant, had sublet the premises to respondent No.2 without his consent and permission. It was pleaded on behalf of the respondent that the premises had been taken by the respondent No.1 for use and occupation by his employees and this practice was operating since long. It was contended on behalf of the landlord that respondent No.1 was the tenant but the premises was occupied by respondent No.2, therefore, it had been sublet by respondent No.1. The decision on this issue by the learned Single Judge of this Court is as follows: "From the evidence it seems that this premises has been under the tenancy of the respondent No.1 from the year 1961 and since then it has been occupied by the employees of the respondent No.1. One Muhammad Ashraf was residing here from 1961 and after the termination of his service the premises was occupied by the respondent No.2 who is residing there from the year 1970 and has regularly paid rent to the appellant on behalf of the respondent No.1. Even the key of this flat was also handed over by the appellant (landlord) to respondent No.2. The appellant is also residing in a flat in the same building and the appellant cannot be said to be unaware of these facts. In the circumstances and facts of the case, the appellant cannot complain of subletting as he has waived his right by his conduct and by overt acts mentioned above." This judgment also does not support the proposition that mere inaction on the part of the landlord to initiate ejectment proceedings on the ground of subletting for some length of time amounts to waiver of his rights by the landlord.

14. Reference may now be made to the two judgments relied upon by Mr. S.M. Akhter Rizvi, learned counsel for the respondent/landlord. 1979 C L C 757 is a judgment of a learned Single Judge of the Lahore High Court. Para 7 of the reported judgment on which reliance was placed by the learned counsel for the respondent is reproduced here:‑ "

7. I also see no force in the argument of the learned Rent Controller that as the original landlord had not proceeded against the appellant and respondent No.2 on the ground of subletting, he had waived his right to do so. There is no evidence on the record to show that the original landlord had done anything positive to waive the said right. Mere inaction on his part does not amount to waiver specially when no period of limitation has been prescribed by law for seeking ejectment of a tenant on the plea of subletting. The learned Rent Controller was, therefore, not right in overlooking the subletting involved in this case by saying that it was waived by the original landlord." This judgment of the Lahore High Court supports the case of the respondent. The other judgment, relied upon by Mr. S.M. Akhter Rizvi, is of the Supreme Court reported in P L D 1982 SC

79. In this case, the tenant was a registered partnership firm. The partners dissolved the firm and constituted a private Limited Company and getting it registered under the Companies Act without informing or getting the permission from the landlord. It was held by the Supreme Court that a distinct legal entity different from the firm came into existence and it remained so whether veil of incorporation was lifted or not and as such legal entity possessed altogether different rights and subjected to different liabilities with respect to third parties and such change could not be brought about unilaterally so as to transform the very legal existence of partnership firm in a manner affecting their liability and, the landlords in the circumstances, could object and made it a ground for ejectment. This judgment of the Supreme Court supports the case of the respondent inasmuch as the Supreme Court has held that by an unilateral action of the tenant changing its constitution from one legal entity to another legal entity, the tenancy rights do not stand transferred to the second legal entity and in such an event the landlord can object to such action and make it a ground for ejectment. 14‑A. As observed earlier, I am of the view that for making out a case of waiver by the landlord of his rights to claim ejectment on the ground of subletting! or assignment of tenancy by the tenant without the consent of the landlord, mere inaction on the part of the landlord to initiate legal proceedings for certain period of time is not sufficient. There should be some overt act or acts on the part of the landlord to lead to the conclusion that landlord ha, accepted the change although he has not given his consent in writing and as such he has waived his rights to get an order of ejectment on the ground of subletting. In the present case, apart from contending that it is a case of inaction for a number of years on the part of the respondent, it has not been shown that there was any overt act or other circumstances on the basis of which it could be said that under the law the respondent is deemed to have waived his right to claim ejectment on the ground of subletting.

15. As a result, F.R.A. No. 820 of 1986 is dismissed but the appellant is granted time till 29‑2‑1991 to vacate the premises subject to regular deposit of rent. There will be no order as to costs. H.B.T./C‑173/K Appeal dismissed.