1986 PLP 713 (CLC)

The appellant filed affidavit‑in‑evidence in support of the application. In rebuttal the respondent No.3 filed affidavit‑in‑evidence. They were cross‑examined by the learned counsel for the respective parties. The learned Rent Controller after taking into consideration the evidence adduced by the parties and taking into consideration the arguments advanced. by the learned counsel for the parties decided issues 1 and 2 in the negative and dismissed the eviction application vide order dated 30‑11‑1982. The appellant being aggrieved against the order dated 30‑11‑1982 of the XVIth Senior Civil Judge and Rent Controller, Karachi, has preferred this first Rent Appeal on the grounds mentioned in the memo of appeal. Mr. Abdullah Chandio, the learned counsel for the appellant has contended that the appellant has established that the respondent No.l without the prior written permission and consent of the appellant had made material alterations in the premises in dispute which had impaired the material value and utility of the premises in question. He has further contended that the Respondent had sublet the premises in dispute to respondents 2 and 3 without the prior written consent of the appellant. Reverting to the first contention of the learned counsel for the appellant that the appellant without the written permission or consent had made material alterations in the premises which had impaired the value and utility of the premises in question. The appellant averred in pare 3 of her application that Respondent No.l without written permission or consent made material alterations in the premises in dispute which had impaired the value and utility of the premises. The respondents filed written statement wherein they denied the contents of para 3 of the eviction application. They averred that no material alterations were made in the premises and there is no question of prior written permission of the appellant nor of impairing material value and utility of the premises in question. The appellant stated in her affidavit‑in‑evidence that the respondent No.l without her prior permission and consent had made material alterations in the premises which had impaired .the material value and utility of the premises in question. The appellant to a suggestion replied that the respondent No.l had partitioned the house into two portions only few years back. The appellant to a suggestion in cross‑examination stated that "I exactly do not know the year in which partition was made. It is incorrect to say that this partition was made 15 years back. It may be about that much old during the lifetime of my father. My father did not know about partition as he was too old." The respondent No.3 filed his affidavit‑in‑evidence and stated therein that he did not make material alterations and his brothers Kutabuddin and Nooruddin also did not make material alterations which had impaired the material value and utility of the premises in question. The respondent No.3 to a suggestion in cross‑examination replied that originally there were three rooms in the flat and two bath rooms and one kitchen. He denied the suggestion that the premises in question were divided into two by raising a wall. He also denied the suggestion that they had made addition of one bath room and one kitchen. He also denied the suggestion that they' are living in two separate units. He also denied the suggestion that they had made the above alterations without the consent of the landlord. There is no evidence on the record that the respondent No. 5, or respondent No.1 by their acts caused such damage to the in question or to the building which reduced its value and Thus there is nothing certain to hold the respondents responsible any damage to the property. Indeed there is no evidence that any damage reducing its value or utility has been caused. Thus, the respondents are not liable to be evicted on the ground that the respondents had committed such acts as are likely to impair materially the value and utility of the building. The findings in this behalf are in accord with evidence on the record. Reverting to the second contention of the learned counsel for the appellant that the respondent had sublet the premises in dispute to the respondents Nos. 2 and

3. The appellant in eviction application averred that the respondent No.l had sublet the premises in dispute to the respondents Nos. 2 and 3 without the written permission of the appellant. The respondents filed written statement and denied the contents of para 3 of the eviction application. The respondents denied that the respondent No.l had sublet the premises to the respondents 2 and

3. The appellant in her affidavit‑in‑evidence averred that the respondent No.l had sublet the same to the respondents 2 and 3 without the permission and consent. The appellant in her cross‑examination stated that "I have heard that the late father of the opponents was also the tenant of this property. The opponents are sons of Badruddin. Kutabuddin is my tenant. I do not know if previously the rent receipt was being issued in the name of Badruddin but from the very beginning Kutaubuddin is my tenant. I do not know if Badruddin was living in this property since last five years. I don't know if the present Opponents were residing with their father. Kutabuddin is the eldest son of Badruddin. I do not know if opponents Nos. 2 and 3 were minors at the time of death of their father. Opponent No.l has got a separate house. Before their marriage all the brothers were living together and after their marriage Kutabuddin has separated. I don't know when Kutabuddin left the house but he left the house during the lifetime of my father who died in 1973. The opponents are residing in these premises since then. It is incorrect to say that my father also knew that the opponents 2 and 3 are also residing there, as he never went out of the house due to his old age." As against this evidence the respondent No.3 filed affidavit‑in -evidence and averred therein that respondents are sons of Badruddin who was the tenant of the premises who died at Karachi in 1949. They were residing with their late father and respondents 2 and 3 continued to live in the premises after their father's death. They are residing in the premises in question in their own rights on the death of their father. The respondent No.3 denied the subletting of the premises. The respondent to a suggestion in cross‑examination replied that the rent receipts were issued to the name of respondent No.l and used to pay rent. He denied the suggestion that respondent No.1 handed over possession of the premises in dispute to respondents 2 and

3. Section 15(2)(iii)(a) provides that a tenant would be liable to be evicted if he has handed over the possession of the premises to some other person. It is true that the consent of the appellant's father has not been obtained to the occupation of the premises in dispute by the respondents 2 and 3, but it appears that the respondents 2 and 3 have been in occupation of the premises in question with the knowledge and the tacit consent of the landlord since 1949. The tacit consent of the landlord and after his death, the appellant must, therefore, be assumed and it has further to be assumed that the condition of writing has been waived by the appellant and her father. In Hap Dawood v. Mst. Rahima Bai and another P L D 1980 Kar. 126 the facts were that a building was constructed by one Samandar Khan the husband of the respondent in 1935 and thereafter he remained tenant of Usman Khan Usman Khan had permitted him to sublet a portion of the premises The appellant purchased the property in 1958 and 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 After considering the evidence adduced by the parties the Rent Controller dismissed the eviction application. The appellant filed appeal which was also dismissed by the Additional District Judge, Karachi. The apnpllant filed second appeal in this Court. Mr. Zaffar Hussain Mirza, J. (Now Judge in the Supreme Court) held as follows:‑

I 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 la 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 he had acquiesced' in the breach thereof and waived his right. Accordingly it was held in Baman Abadan Irani v. Jahangir J. Mobed P L D 1960 Kar. 276 that lesser can waive by conduct the condition of then lease deed requiring prior permission in writing for suhletting. This view was followed recently by Z.A. Channa, J (as he then was) in Ghulam Bahauddin Qureshi v. Mrs. Hawa Bai PLD 1979 Kar. 597 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. 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 an her husband the previous tenant were impliedly allowed to sublet the disputed portion and, therefore, the appellant has waive by his conduct the requirement for obtaining his consent in writing.'' I am accordingly of the view that this contention of the learned counsel for the appellant is without any substance. The finding of the learned Rent Controller on this issue is in accord with the evidence on record. For the reasons stated above by me. I find no merit in this appeal. I accordingly dismiss the same with no order as to costs. A. A. Appeal dismissed.