1. ' This second, Appeal is directed against the judgment dated 20-3-1980 passed by Ist Additional District Judge Karachi, whereby the Appeal No.169 of 1969 filed by the appellant was dismissed and the order dated 6-3-1969 passed by the Rent Controller was upheld.
2. ' The brief facts of the case which give rise to this second appeal are that the respondent is the owner of building on Plot No.6-D Market, Block No.VI, P.E.C.H.S Ltd., Karachi. The appellant is tenant in respect of ground floor consisting of 5 shops and Verandah and first floor. The tenancy started in 1958 when the appellant was let out Shops Nos.4 and 5 at a monthly rent of Rs.150. In 1960 another shop alongwith Verandah was let out and the rent was fixed at Rs.300. Thereafter, he took all the five shops and verandah on a rent of Rs.600 per month. In the year 1962 the first floor was also let out to him. The appellant agreed to pay Rs.900 per month for all the 5 shops and verandah on ground floor and first floor. The rent was enhanced to Rs.1,000 in the year 1968. The respondent filed ejectment application on the grounds of default for the period November, 1973 onward and balance of Rs.800 payable upto January, 1970, subletting the entire Verandah facing and a shop to Azmat FurnitUre, sublet a portion of Verandah to Panwala and the appellant has contravened the terms of tenancy by constructing two rooms with a bath room on the first floor without any permission of the respondent and has let out the same to other person and also for contravening the use of the premises for purposes other than those for which it was given. The appellant filed written statement on 27-3-1974. It was averred therein that he is tenant of the entire building. The rent was enhanced with effect from 1-1-1970. It was averred that the respondent refused to accept rent from him as such he tendered the rent through cheque. The respondent wanted rent at the enhanced rate of Rs.1,200 and thereafter he deposited the same in Miscellaneous Application. He also denied the above breach of tenancy laws. He denied the allegations of subletting and also contraven tion of tenancy laws including change of use.
3. ' The learned Vlth Senior Civil Judge and Rent Controller framed the issues on 22-5-1974.
(1) Whether the application is without cause of action and not maintainable?
(2) Whether the opponent has committed default? If so what is the amount of arrears against the opponent?
(3) Whether the opponent as constructed two rooms and bath on the first floor of premises, without consent?
(4) Whether the amount of Rs.1,150 is due against the applicant liable adjustment towards monthly rents? If so its effect?
(5) Whether the opponent has sublet any portion of the premises?
(6) What relief the applicant is entitled to ?
(7) What should be order and what order as to costs?
4. ' The respondent examined herself and besides herself has examined her husband Dr.M.H.Rehman, Azizur Rehman and Serajuddin Ahmed. The appellant examined himself, Hassan Shah, Karamat, S. Shamim Ahmed, Majid Ahmed and M.lmtiaz Ahmed.
5. ' The learned Rent Controller after recording of the evidence and after hearing arguments of the learned counsel for the parties, allowed the application by order dated 6-3-1979 and directed the appellant to hand over the vacant possession of the premises within one month from the date of order. The Rent Controller allowed the application on the ground of default, unauthorised construction without the consent of the respondent and also on the ground of subletting.
6. ' The appellant being aggrieved against the aforesaid order had preferred First Rent Appeal No.169 of 1969 before the Distict Judge, Karachi which was ultimately transferred to the Court of First Additional District Judge, Karachi.
7. ' The learned Additional District Judge after hearing the arguments of the learned counsel for the parties dismissed the appeal by judgment dated 20-3-1980 and directed appellant to vacate and to hand over the vacant possession of the premises within thirty days of the judgment. The learned Additional District Judge decided issue No.2 in negative and issues Nos.3 and 5 in the affirmative.
8. ' Mr.S.Sami Ahmed the learned counsel for the appellant has contended:
(1) The doctrine of waiver applies to the case of respondent both on question of subletting and unauthorised constructions as he continued to receive rent for a period of more than four years in spite of knowledge as alleged.
(2) Findings of both the Courts are based on surmises and conjectures and material documents were not taken into consideration.
9. ' On the other hand Mr.Khalid Latif the learned counsel for the respondent has contended that the respondent has not waived her right and the construction was unauthorised. The subletting was also without seeking permission from the respondent landlady.
10. ' With regard to first contention of the learned counsel for the appellant it is pertinent to note paras.
11. 14 and 15 of the ejectment application which read as under:- "(14) That the opponent has contravened the terms of tenancy by constructing two rooms with a bath room on the first floor without any permission of the applicant and has let out the same to some other person.
(15) That the opponent has sublet the entire Varandah facing East and a shop to Azmat Furniture Mart, and Hikmat Furniture Mart and he has also sublet a portion of the Verandah facing North by converting it into a shop to a Panwala."
12. ' The appellant denied contents of paras. 14 and 15 of the applica tion in his written statement.
13. ' The respondent in her examination-in-chief has stated that the appellant constructed second floor in her absence while she remained in Rawalpindi from 1956 to 1969.
14. ' The appellant has sublet one portion of the ground floor of the building to one Panwala and another to Kababwala. On her return from Rawalpindli she approached the appellant for enhancement of rent in lieu of enhancement of taxes. The appellant agreed to pay Rs.1,000 per month from 1-1-1970. She had issued notice to him complaining against his subletting without her consent. The copy of the notice dated 7-9-1972 was produced as Exh.A.W.6. It was mentioned therein that he has sublet one of the shops to a Furniture dealer. He unlawfully converted a portion of the Verandah into a separate shop by raising unauthorised Pucca construction and has sublet the same to a Pan merchant without her consent.The appellant sent a reply which was produced as Exh.A.W.9. She admitted in her cross-examination that she came to know in the year 1970 that the appellant has sublet the premises. Her husband stated in his deposition before the Rent Controller that the third floor was built when he was in Rawalpindi and he has sublet it. He further stated that there are two open Verandahs on the ground floor. In one portion of the Verandah the appellant has constructed a Pucca shop and one Hamza has been put in possession of this shop.
15. The verandah of the eastern side has been converted into a shop and given on rent to Hikmat Furniture Mart. Sirajuddin told him about the subletting of Pan shop and Hikmat Furniture Mart by the appellant. Notice was served in 1972 after lapse of two years.
16. ' The appellant in his written statement denied the allegations of committing any breach of the tenancy laws/agreement between the parties and in para. (15) (v) of the written statement stated as under:- "(v) Further she waived her rights if any by her own conduct and the allegations are mala fide."
17. ' It is contended that the respondent came to know about unauthorised constructions and also subletting in the year 1969. The rent was not only enhanced by her but accepted by her. The acceptance of rent by her from him shall operate as a waiver of such unauthorised construction and subletting.
18. 'The appellant denied the subletting. The Courts below con currently found that his denial was false and that he sublet the two shops. The appellant took the plea that the respondent had clear knowledge that the respondent raised unathorised contructions and also A sublet the premises.
19. The respondent and her husband clearly admitted unauthorised construction and sublet two shops to subtenant namely Hikmat Furniture Mart and Pan shop. It is argued that the respondent waived the requirement of consent to the subletting and the unauthorised constructions.A waiver is an intentional relinquishment of a known right. There can be no waiver unless the person against whom the waiver is claimed had full knowledge of her rights and of facts enabling her to take effectual action for the enforcement of such rights. It is said that the respondent knew of the subletting and the unauthorised construction as she and her husband visited the premises in question. It appears that the respondent and her husband visited the building in the year 1969 and came to know about the subletting and unauthorised construc tions. The respondent served the notice in the year 1972 and thereafter she accepted rent from the appellant. I am of the view that the Courts below have not rightly held that the respondent did not waive her rights to evict the appellant.
20. ' It may be pertinent to observe that the respondent came to know about unauthorised construction and subletting in the year 1969 and continued to accept rent without any protest and did not file ejectment proceeding within reasonable time, but served notice on 7-9-1972 and again accepted rent without any protest till the filing of ejectment application on 9-2-1974, it shall be presumed that she has waived such subletting.
21. ' The points which arise in this appeal are (1) whether the facts proved in this case constitute a waiver sufficient to take the case out of section 13 of the repealed Ordinance or section 15 of the new Ordinance if fact necessary to make that section applicable have been established, (2) whether there is a continuing breach and what is the effect of the receipt of rent on this breach?
22. ' It is the law as it is given, in Hill and Redman's Law of Landlord and Tenant (14th Edition), page 268 para.:- "If the lessor is aware of continuing breach and adquiesces in it for a long period--where, for instance, with full knowledge, he receives rent -it will be presumed that he has either released the covenant or granted a licence for the user." and on page 509 para. 397.
23. "The lessor has an option 'whether he will take advantage of a forfeiture or not, 'and if elects not to do so the forfeiture is waived. Such elect either express or implied and it is implied when the lessor, after the cause of forfeiture has come to his knowledge, does any act whereby he recognises the relation of landlord and tenant and subsisting' ."
24. ' In Gibson v. Doeg (1857) 115 R R 723 the lease contained a covenant on the part of the lessee that he would not, without the consent of the lessor, use in the demise premises any trade or business whatever nor, convert the dwelling house into a shop, nor suffer the same to be used for any other purpose than dwelling house and one of the dwelling house converted into a public house and a grocer shop and the lessor, with full knowledge of it, for more than twenty years received the rent, it was held that the user of the premises in their altered state for more than twenty years with the knowledge of the lessor, was evidence from which a jury might presume a licence. At page 729 Pollock C.B.observed:- "It is a maxim of the taw of England to give effect to everything which appears to have been established for considerable course of time, and to presume--as a matter of. right."
25. ' In Griffiths v. Tomkins, 1880 42 L T 259 the defendants held certain premises of the plaintiff for a term of years under a lease whereby the lessees covenanted not to carry on any trade, profession or business without the licence or consent in writing of the lessor and the lessee contained a power of re-entry upon breach of the covenant. The lessee's made some alterations in the premises and part of the new building was occupied by two of the defendants as plumbers, no written licence or consent of the lessor but rent was paid as usual by the lessees after the commencement of the business with the lessor's knowledge of the use of the. premises. Soon after, the plaintiff took proceedings to recover the land on the ground of forfeiture by a continuing breach of the covenant and it was held that the receipt of rent was a sufficient waiver of the breach. It was observed by Cockburn, C.J. as follows:- "There, therefore, was, as I say, a double waiver-first, by receipt of the rent, and secondly, by calling, with her sanction, upon the tenant, then to do the repairs specified by the surveyor. Now the receipt it is true was only in respect of the rent which had accrued upto Mischeelms of the year 1877 and the tenant, the lessee continued of course in possession and as tenant in occupation upto the time the action was brought which was upon the 12th January. There, therefore, was an interval between the 29th September, and the 12th January, the day the writ was issued in the action, during which it may be said that there was a continuing breach, which rendered the lease liable to forfeiture. But I cannot help thinking that, where a lessor with full knowledge that a breach of this particular description has been committed or waives the forfeiture by a distinct acceptance of rent accruing due after the forfeiture, that amounts not merely to a waiver of the past breach, but to a licence to continue the breach in future."
26. ' The learned Chief Justice further adds:- " I think it would be monstrous if it were otherwise; it would amount to this: that the lessor with a full knowledge that the thing had been done which was prohibited by the lease, and upon which a forfeiture was to accrue if it was done, might continue as long as it suited his purpose to receive his rent and so waive the forfeiture upto the time that rent was received, and then, when it suited his purpose upon a change of circum stances, turn round on the tenant and say, 'Although I have allowed you thus by implication to suppose that I was licencing that you were doing, I now take advantge of it and turn you out of what is to you a beneficial lease."
27. ' There the rent had been received for a very small period. In the case now before me the respondent has continued to receive rent and has been condoning the breach of the covenant for a period of about more than three years.
28. ' This brings me to a consideration of section 13 of the repealed Ordinance. It is advantageous to reproduce section 13 of Sind Urban Rent Restriction Ordinance, 1959:-- (i)
(ii) "the tenant has, without the written consent of the landlord, ..................................
(a) transferred his right under the lease or sublet the......................................... entire building or rented land or any portion thereof; or
(b) used the building or rented land for a purpose other than that for which it was leased or has infringed any condition of the tenure on which the building or rented land is held by the landlord; or
(iii) the tenant has committed such acts as are likely to impair materially the value or utility of the building or rented land."
29. ' The effect of this is that when if it is proved that by consent of the landlord premises have been sublet or the tenant has committed such acts as are likely to impair materially the value or utility of the building or rented land, a landlord will not have the right of ejectment, the consent may, in my opinion be either express or implied and, therefore, section 13(2) (11) (a), (b) and (iii) would be defeated by waiver on the part of the landlord if it is proved that by his past conduct he had consented to a particular breach of the covenant with regard to sublet or the appellant has committed such acts as are likely to impair materially the value or utility of the building.
30. ' In the case of Muhammad Amin and another v. Chief Judge, Small Causes Court, Karachi and 2 others PLD 1963 Kar. 695 wherein a Division Bench of the erstwhile High Court of West Pakistan, Karachi Bench, observed as follows:- "In the present case Muhammad Shafi not only connived at the sub-tenancy in favour of Zahir Ahmed and Mulla Mustaqeem, but also continued to accept rent from the present applicants on the old terms without protest until the conditions of commission paid to him on the food supplies to the Dilkusha premises were not conducive to him. We have also read the other evidence recorded to support Muhammad Shafi's case of permanent structures having been erected and of annoyance, nuisance generally abused by and an account of the existence of the Cafe De Khan premises. In the context of these circumstances and in view of the continued acceptance of these conditions, and on the basis of the law on these points, we would hold that Muhammad Shafi by his conduct had given his implied consent to the state of affairs and cannot now complain at his pleasure, nor take advantage of the situation created. We, therefore, do not agree with the finding of the learned Rent Controller and the learned Chief Judge, Small Causes Court, that the certificate under section 10 of the Rent Restriction Act should have been granted in favour of Muhammad Shafi on these grounds."
31. ' In the case of Ghulam Bahauddin Qureshi v. Mrs. Hawa Bai PLD 1979 Kar. 597 Mr.Z.A.Channa, J. (as he then was) observed as follows:- "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."
32. ' The learned Judge further adds:- "The facit 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. It may be pointed out that the appellants have been in occupation of the two cabins even prior to the promulgation of the Sind Rent Restriction Ordinance, 1959. It has been held by this Court in the case of Boman Abadan Irani v.
33. Jehangir Mobed that the condition of writing can be waived by the lessor and the recognition of the sub-lease by conduct obviates the requirement of writing."
34. ' In the case of Badruddin H.Mavani v. Government of Pakistan and another 1982 CLC 44 a Division Bench of this High Court observed:- "Besides the above authorities, it will be advantageous to also refer to an Arab jurist, late Khalid-al- Atasi, Qadi of Hima, who in his Sharh Al-Majallatul Ahkam Al-Adliyah (Hims, Vol.I generally known as Sharh al-Majalla) commenting on section 51 of the Majialla writes that "sometimes the lapsing of a right, capable of being lapsed, is express and sometimes it is incumbent and sometimes it is by indication or by implication except in the case of right which (in Shariah) is not liable to be lapsed.
35. ' 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."
36. 'In the present case as I have held that the respondent knew of the subletting of the premises and also knew acts which are likely to impair materially and with that knowledge had been receiving rent the case will not be any different from that what it was in Griffins v. Tomkins and section 13(2)
(ii) (a), (b) and (iii) should not be applicable to the facts of the present care. .
37. ' Provisions of section 13(2) (iii) of the then Urban Rent Restriction Ordinance, 1959 are reproduced as under:- "The tenant has committed such acts as are likely to impair materially the value or utility of the building or rented land."
38. ' A landlord entitled to seek eviction of a tenant on the above ground has to prove that the tenant has committed such acts which are likely to impair materially the value or utility.
39. ' Now the case of the landlady as set up in the ejectment application in the above context is only to the effect that the appellant has contravened the terms of tenancy by constructing two rooms with a bathroom on the first floor without any permi,ision. The respondent in her cross-examination-in- chief stated that the appellant had constructed second floor on her building in her absence. Her husband Dr.M.A.Rehman stated in his deposition that there are two open Verandahs on the ground floor which according to rules of the Government are to be kept open. In one portion of Verandah the appellant constructed a Pucca shop P.W.4 Sirajuddin Ahmed in his deposition stated that the appellant constructed second floor in 1969 or afterwards. The appellant had also covered the verandah to east. The appellant in his deposition stated that there were three small rooms on the top floor where servants of Anwary Bakery were living. The tin sheets on it were torn out which he changed by a cement roof and he got the walls repaired. He further stated that the Verandah was covered with the woodenjafery by tenant Khalil, he removed jafery and had installed glasses.
40. Similarly in the entire nursery market the Verandah walls are covered even by walls. It may be observed that no allegations were made about structural changes in the demised premises such as the laying of a beam. There is no other evidence on the record about the extensive alterations and additions alleged to have been done by the appellant. The word 'impair' has been defined in Black's Law Dictionary which reads as under:- "To weaken, to make worse, to lessen in power, diminish, or relax, or otherwise affect in an injurious manner."
41. 'The provisions of section 13(2) (iii) thereof refer to acts likely to impair materially the value or utility of the building.It is, therefore, quite clear that only alterations or additions could not be considered such an act which makes the tenant liable to be ejected unless th same impairs 'materially' the value or utility of the building. It cannot be laid as a rule of law that alterations and additions would amount to a breach of provisions of section 13(2) (iii), the landlord has to prove, H by a reliable evidence, especially by the evidence of an architect, and not the mere word of the landlord, that such an act was likely t impair materially or utility of the structure where terms of tenancy provide that the tenant shall not get any alteration or addition without the permission, the case of the respondent is that appellant withou such consent constructed two rooms and a bath on the top floor and also covered a verandah on the ground floor. It is contended on behalf of the tenant that the roof was worn out and, therefore, the replacement of the roof was really repaired and not additions and the same about verandah that wooden jafery was replaced by the glass. Merely replacing the roof and merely removing wooden jafery and fixing glass would not be such alterations or additions of a reaching nature which may amount to impairment of the value and utility of the premises. It is contended by the appellant that instead of written permission he orally sought permission and in any case the respondent waived her right. I am of the view that it is established that the respondent waived the condition! by accepting rent from him.
42. ' I am of the view that for the purpose of coming to decision whether the value and utility has been impaired the entire aspect of the so-called additions and alterations had to be minutely considered since the Legislature has qualified the acts which render liable the tenant to be ejected as those impairing materially the value or utility, the mere statement about alleged additions or alterations cannot be considered to be sufficient for making tenant liable to be evicted, it is apparent from a reading of the two judgments of the lower Courts that this important legal aspect was not considered while arriving at the concurrent findings that the tenant has rendered himself liable to be ejected from the premises.
43. ' Mr. Khalid Latif the learned counsel for the respondent has contended that in view of the concurrent findings of the lower Courts on a point of facts this Court has no jurisdiction to interfere with the same it may be stated that ordinarily the High Court in Second Appeal does not interfere with concurrent findings on points of facts. Mr. K Khalid Latif the learned counsel for the respondent-landlady has referred to several decisions of the superior Courts on the point which I need not discuss as I am in respectful agreement that ordinarily such findings of facts are not to be interfered with. However, the aforesaid rule has exceptions. In Muhammad Alam v. Noor Muhammad 1973 SCMR 606, S. Muhammad Malik v. Syed Azis Y T R 1971 SC 575 and Mst. Bibi v.
44. Habib Khan and others PLD 1975 S % 299.
45. "No doubt, it has been consistently held in a chain of authorities starting from Durga Chowdhrani v.
46. Jewahir Singh Chowdhri, upto Rharpura v. Diwan Chand unexceptionally followed by the superior Courts of India and Pakistan that the High Court has no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact however gross or inexcusable the error may be, yet there is ample authority for the proposition that no sanctity attaches even to a concurrent finding of fact based on misreading or misrepresentation of evidence as this would clearly bring the case within the scope of clause (c) of section 11, C.P.C."
47. 1981 CLC 124 or 1981 CLC 254.
48. 'In view of the above circumstances stated above it is apparent that the concurrent findings of the learned Rent Controller and learned Additional District Judge are due to misconception of law inasmuch a it was their duty to make a thorough scrutiny of the evidence on record to find out whether it could be said that the alterations and additions if any had in fact resulted in material impairment of th value and utility of the building. The appeal is accordingly accepted and the impugned order and judgment are set aside with the resul that the application for ejectment is dismissed but in the circumstance of the case the parties will bear their own costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.