' Respondent/landlord had filed an ejectment application under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 on 25-4-1979 against the legal heirs of deceased Ikramuddin. The case of the respondent is that, under an agreement dated 22-12-1968, he had rented out his shop in Liaquatabad, Karachi to deceased Ikramudclin at a monthly rent of Rs,100 and, after his death, his legal heirs became the tenants. According to the respondent, the deceased had paid rent upto April 1971 but thereafter he defaulted and, after his death, his legal heirs also defaulted in payment of rent. According to the respondent, rent was due from May 1971. It was also alleged that the rented premises had been sublet illegally and without his permission.
Ground of personal requirment was also taken in the ejectment application. A Written Statement dated 28-11-1981 was filed on behalf of the legal heirs of deceased Ikramuddin but it was signed by Mohammad Mobin, the appellant in this appeal. In this Written Statement, a preliminary objection was taken that the sub-tenant, who was a necessary party, had not been impleaded as an opponent. It was also pleaded that an earlier application had been filed in 1971 bearing Case No, 2378/71 which had been dismissed on 8-8-1974. Allegation of default in the payment of rent was denied and it was averred that the rent was being deposited in the Court by the deceased Ikramuddin and/or his partner Muhammad Mobin. It was further submitted that Chand Oil Depot was established and founded by deceased Ikramuddin but later on he took Muhammad Mobin as his partner on condition that, in case of retirement or death of any partner, the partnership shall not be dissolved but the remaining or surviving partner shall continue the business under the name and style of Chand Oil Depot either solely or by taking another partner or partners, and as such, on behalf of Chand Oil Depot, the rent was being deposited with the Nazir of the Court. It was also averred that D.W. Proceedings bearing No,143/79 filed by the respondent were dismissed by the Small Causes Court Karachi on the ground that in a Miscellaneous Rent Case rent was regularly deposited by the legal heirs of deceased Ikramuddin under the name and style of Chand Oil Depot.
Allegations regarding subletting and that the premises were required by the respondent were denied.
' Muhammad Mobin, claiming to be sole proprietor of Chand Oil Depot, filed an application on 12-4- 1983 for being impleaded as an opponent. In his affidavit in support of the said application, Muhammad Mobin averred that under the partnership agreement dated 26-6-1967 between him and deceased Ikramuddin (the original tenant), Muhammad Mobin had been carrying on his business of oil and ghee in the shop in question with the tacit consent of the landlord and that they had named the shop as Chand Oil Depot. It was also stated in the said affidavit that on 2-2-1973 deceased Ikramuddin dissolved the partnership and left Chand Oil Depot under the exclusive proprietorship of Muhammad Mobin. It was alleged that in 1971, when the respondent refused to receive the rent, Muhammad Mobin started depositing the rent with the Nazir of the Court. It was also averred that he had been carrying on oil and ghee business in the shop in question since the commencement of the tenancy under the name and style of Chand Oil Depot. Application for being impleaded as opponent was allowed and Muhammad Mobin filed his Written Statement dated 23-8-1983 and he took up the same pleas that had been taken in the Written Statement filed on behalf of the legal heirs of deceased Ikramuddin which Written Statement had also been signed by Muhammad Mobin. After recording evidence adduced by the parties, by order dated 30-8-1986, the Rent Controller allowed the application on the ground that the premises had been sublet to Muhammad Mobin and that the tenants had also committed default in the payment of rent and ordered. Ejectment. The ground of personal requirement was not accepted by the Rent Controller.
Being aggrieved, Muhammad Mobin, claiming to be the sole proprietor of Chand Oil Depot, has filed this Rent Appeal under section 21 of the Sindh Rented Premises Ordinance, 1979. The arguments of Mr. Nasim A. Faruqui, learned counsel for the appellant and Mr. S.M. Akhtar Rizvi learned counsel for the respondent have been heard at length.
2. The decision in this case depends on the question of subletting. Admittedly, legal heirs of deceased Ikramuddin had not paid or deposited rent of the premises. Rent had been deposited by Muhammad Mobin in the Misc. Rent Case. No challenge has been made by Mr. S.M. Akhtar Rizvi that Muhammad Mobin has delayed or defaulted in the deposit of rent. In case the final decision is that the landlord has not been able to make out a case under the law for ejectment on the ground of subletting or assignment of tenancy, it would follow that Muhammad Mobin is in lawful occupation of the premises and in such an event ejectment could not have been ordered on the ground of default also.
3. The agreement of partnership (Exh. 10-B), on which reliance has been placed by the appellant, is dated 26-6-1967. It is an agreement between Ikramuddin and Muhammad Mobin and it mentions about the partnership business to be carried on under the name and style of Chand Oil Depot. This agreement does not make any mention about the shop in question but states that the business of the partnership shall be carried on in the main market of Liaquatabad. Clause 11 of the agreement reads as follows:- "That retirement or death of any partner shall not have effect of dissolving the partnership. Rather the remaining partner may either take another partner or partners in the partnership business or may continue the business under the same name and style of Chand Oil Depot as sole proprietory."
4. Then reliance had also been placed on Exh. 10-C which is a declaration supposed to have been made on solemn affirmation by Ikramuddin on 2-2-1973, in which he mentions about the business being carried on in partnership under the name and style of Chand Oil Depot with Muhammad Mobin and that the shop in question had been taken on rent from the respondent for the partnership business "but as I negotiated the deal, the said landlord executed the tenancy in my sole name." It is further stated in the declaration that Ikramuddin had retired from partnership business on 31-1-1973 and Muhammad Mobin had become the sole proprietor.
5. Exh. 10-A is the rent agreement dated 22-12-1968 between the respondent Muhammad Ilyas Khan and deceased Ikramuddin and it states that Ikramuddin had taken possession of the shop in question on 1-9-1968 and from that date he became the tenant at a monthly rent of Rs,100. It is specifically stated in this agreement as follows:- {{URDU TEXT}} ' From the rent agreement and from the other pleadings it follows that the case set up on behalf of Muhammad Mobin, on the basis of the so-called partnership, is false. If the partnership had already been entered into in 1966 as claimed by Muhammad Mobin and shop premises were being taken on rent for the purpose of carrying on the partnership business, in the normal and usual course of things, the rent agreement would have been in the name of the partnership i,e Chand Oil Depot or in the name of both partners. The case set up on behalf of Muhammad Mobin is that on the basis of the terms and conditions of the partnership agreement dated 26-6-1967, Muhammad Mobin became the sole proprietor on 31-1-1973 when deceased Ikramuddin voluntarily retired from the business but this stand on behalf of Muhammad Mobin appears to be false in view of the pleadings in the previous Rent Case No,2378/71 which was filed by respondent against deceased Ikramuddin in which no attempt was made either by Ikramuddin or Muhammad Mobin to bring it on record that Chand Oil Depot or Muhammad Mobin were tenants. Reference has also been made earlier about D.W. Proceedings bearing No, D.W. 143/79, initiated by the respondent against the legal heirs of deceased Ikramuddin. In these proceedings under section 27-A of the Small Causes Court Act 1887, respondent had averred that he was landlord of the shop and Ikramuddin was a tenant and that after his death his legal heirs had become tenants. Objections were filed on behalf of the legal heirs of deceased Ikramuddin on 13-5-1979. Paras 3 and 4 of the objections are reproduced here:-- "(3) That the proceeding is false, frivolous and vexatious inasmuch as in Misc. Rent Case No,2338/74, the entire rentals have been deposited since 1974, inclusive of the arrears incorporated in this D.W. Application (Photostat copies of rent receipts are submitted herewith).
(4) That after the death of Muhammad Ikramuddin on 25-2-1973, the widow and the then minors as opponents Nos.1 to 4 used to carry out their oil business under the supervision of Muhammad Mobin, a relative and partner of Muhammad Ikramuddin under the name and style of Chand Oil Depot.
' In the aforesaid objections, therefore, the plea was that even after the death of Ikramuddin and till at least 1979 when objections had been filed, the legal heirs of deceased Ikramuddin were also carrying on the oil and ghee business under the supervision of Muhammad Mobin. No reference is made in these objections about the partnership agreement of 1967 under which, Muhammad Mobin became the sole proprietor on 31-1-1973. The objections also did not mention that Muhammad Mobin was the tenant of the premises exclusively or jointly with the legal heirs of deceased Ikramuddin.
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 responent agreed to rent out the shop 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 Ikramuddin 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 Ikramuddin 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. Ragima Bai PLD 1980 Karachi 126.
(ii) Rais Illahi Bux v. Inamullah NLR 1981 A C 315.
(iii) Muhammad Ahmed v. Qamar Anwar Sheikh 1980 CLC 664.
(iv) Abdul Karim v. Manzoor Ahmed 1980 CLC 1498.
(v) (v) Badruddin H. Mavani v. Government of Pakistan 1982 CLC 44.
(vi)
9. Mr. S. M. Akhtar Rizvi 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, relid upon the judgment of a learned Single Judge of the Lahore High Court in the case of Muhammad Hafeez v. Muhammad Suleman (1979 CLC 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 (PLD 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 Ikramuddin. 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. Faruqui 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 tranferred to the sublettee or assignee by operation of law. This proposition is not warranted by any principle of law.
12. I may now refer to the judgments relied upon by Mr. Nasim A. Faruqui in support of the proposition advanced by him. In PLD 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 writting 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 present 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 requirment 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 CLC 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 NLR 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 CLC 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, 1965, 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 CLC 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 CLC 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 PLD 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 C landlord to lead to the conclusion that, landlord has 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.