P L D 1980 Karachi 126 (PLP)

The facts in this case are not in dispute. The building in question was constructed by one Samandar Khan, the husband of the present respondent in about 1935 and thereafter he had remained the tenant in the said premises of Usrnan Khan. Out of the consideration that Samandar Khan had raised the construction from his own funds and had subsequently developed the disease of tuberculosis, Usman Khan had permitted him to sublet a portion of the premises in order to supplement his income. The appellant purchased this property in the year 1958 and it is in the evidence 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. Samander Khan died in about the year 1966 and the tenancy devolved by operation of law upon the respondent being his widow. On 2-1-1967 the appellant filed application under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as the Ordinance) alleging that in September, 1966, the portion of the premises comprising a room and a shed had been sublet to a person by the respondent for the purpose of Iron Foundary. It was alleged that the subletting was done without the consent in writing of the appellant.

3. After considering the evidence adduced by the parties the learned Rent Controller by his order dated 31-5-1972 dismissed the application of the appellant. The appeal filed by the appellant was also dismissed by the 4th Additional District Judge, Karachi. The appellant has, therefore, come up in second appeal before this Court.

4. It was pointed out by the learned counsel for the appellant that the two Courts below have dismissed the plea of the appellant for ejectment of the respondent on the ground that sub-tenancy was authorised by the appellant through implied consent. Learned counsel argued that section 13(2)(ii) of the Ordinance does nit contemplate subletting by implied consent of the landlord and consequently upon the failure of the respondent to .prove the consent of the appellant in writing, the two Courts below ought to have ordered the eviction of the respondent. Counsel further submitted that even- if subletting was permitted prior to the coming into force of the Ordinance, the induction of the new sub-tenant by the present respondent in the year 1966, would obviously attract the provisions of the present Ordinance and. it was necessary for the tenant to have obtained the written consent of the appellant.

5. Learned counsel for the respondent on the other hand has contended that, as held by the Courts below the appellant by his conduct has impliedly waived his right to object to sub-tenancy. He further; submitted that there was no evidence on record to prove that a new sub-tenant was put in possession by the respondent in the year 1966. 6. 1 have considered the submissions of the learned counsel and perused the evidence adduced by the parties. There is no doubt that section 13(2)(ii) of the Ordinance provides that "a tenant would be liable to be ejected if he has transferred ,his right under the lease or sublet the entire building or rented land or any portion thereof without the written consent of the landlord". However, it is well established that a party may be debarred from pleading for or enforcing his rights if be had acquiesced in the breach thereof and waived his right. Accordingly it was held in Baman Abadan Irani v. Jahangir J. Mobed (1), that lessor can waive by conduct the condition of the lease deed requiring prior permission in writing for subletting. This view was followed recently by Z. A. Channa, J. (as he then was) in Ghulam Bahauddin Qure.vhi v. Mrs. Hawa Bai (2), which was a case of ejectment under the Ordinance. It was observed as under: "It is true that the consent of the landlord in writing has not been obtained to the occupation of the cabins by the respondents, but it appears that the appellants have been in occupation of the premises in question with the knowledge and the tacit consent of the landlord since 1947. The tacit consent of the landlord must therefore be assumed and it has further to be assumed that condition of writing has been waived by the landlord."

7. In the light of this legal position I find no warrant for interference with the view taken by the two courts below that by long-standing practice during the days of the previous landlord as well as the present landlord, namely, the appellant, the respondent and her husband the previous tenant were impliedly. allowed to sublet the disputed portion and therefore, the appellant has waived by his conduct the requirement for obtaining his consent in writing.

8. For the foregoing reasons there is no merit in this appeal which is accordingly dismissed with no order as to costs. M. Y, M. Appeal dismissed. (1) P L D 1960 Kar. 276 (2) P L D 1979 Kar. 597