AJMAL MIAN, J.--This is an appeal with the leave of this Court against the judgment dated 2-2-1986 passed by a learned Single Judge of the High Court of Sindh in IInd Rent Appeal No,53 of 1982 filed by the respondent, allowing the same by setting aside the judgment dated 4-8-1982 passed by the learned VIth Additional District Judge, Karachi, in Rent Appeal No,307 of 1979, whereby the order of the learned Vth Rent Controller, Karachi, dated 25-4-1979 passed in Rent Case No,2676 of 1975 granting ejectment on the ground of subletting was set aside and thus thereby restoring the latter order of ejectment. Leave to appeal was granted to consider the question, whether the High Court could maintain the order of eviction contrary to the case pleaded by the landlady in her eviction application.
2. The brief facts are that plots of land bearing Nos.25 and 26, Survey Sheet No,PR-I, measuring 3260 and 3477 sq. Yards, respectively, situated in Preedy Quarters, opposite Makki Masjid, Karachi, hereinafter referred to as the properties, belonged to one Ishwar Das, who mortgaged the same with possession on 26-11-1946 to Fareedoon Nadirshaw Eduljee Dinshaw, who was holding for some trust. It is the case of the appellant that her mother was the tenant of one of the properties, namely, property bearing No,25 comprising of a bungalow, outhouses/servant quarters etc., hereinafter referred to as the bungalow, for over 70 years at the time of filing of written statement in 1975. It is also the case of the appellant that after the death of her mother in 1958, she inherited the above tenancy rights in the bungalow and became the tenant of the landlord, Mr. Fareedoon Nadirshaw Eduljee Dinshaw. It appears that said F.N.Eduljee Dinshaw obtained permission from the Custodian on 2-9-1950 to collect the rent of the bungalow. After that, the properties were purchased by aforesaid F.N. Eduljee Dinshaw through a registered sale-deed dated 15-3-1962. He sold the same to the respondent in the month of May, 1962, and thus the appellant had become the tenant of the respondent. The respondent filed aforesaid rent case for ejectment on or about 25-4-1979 on the grounds of default and subletting. The above application was resisted and it was denied that there was any default. It was pleaded that the subletting was with the permission of the previous landlord under a letter dated 15-11-1949 Ex.0/5. The respondent in support of her case examined three witnesses, whereas the appellant examined eight witnesses. The learned Rent Controller, by his aforesaid order dated 25-4-1979, rejected the ground of default buy allowed the ejectment on the ground of subletting. The appellant filed aforesaid rent appeal against the above order of the Rent Controller, which was allowed by the learned VIth Additional District Judge, Karachi, by his aforesaid judgment dated 4-8-1982. Thereupon, the respondent filed aforesaid second appeal which was allowed by a learned Single Judge of the High Court of Sindh by the above judgment dated 2-2-1986 in the above terms. After that, the appellant filed the above petition for leave which was granted to consider the above question.
3. In support of the above appeal, Mr.Fakhruddin G.Ebrahirn, learned SrASC appearing for the appellant, has urged that the learned Single Judge has allowed the second appeal on a ground which was not pleaded. In furtherance of his above submission, he invited our attention to para 5 of the rent application, which reads as follows:-- "5. That the opponent illegally and without the permission and consent of the applicant has partly transferred her tenancy rights in the demised residential premises by subletting the outhouses/servant quarters of the property in question to different persons for their residential as well as commercial purposes. Thus the opponent has not only converted the residential property into semi-commercial premises; but she is also making gains and profits therefrom illegally and unauthorisedly."
' He also invited our attention to the following portion of the judgment of the learned Single Judge of the High Court:-- "I am of the view that the respondent has sublet a portion of the disputed premises to Kabraji for workshop only with the permission of the then landlord."
' On the basis of the above finding by the learned Single Judge, it was vehemently urged by Mr.Fakhruddin G. Ebrahim that the learned Single Judge after having concluded that a portion of the disputed premises for workshop was sublet to Kabraji with the permission of the landlord, could not have proceeded to record a finding that a portion of the bungalow was let out for godown without permission to Mr.Kabraji, who was running the business under the name of Superior Furnitures, as the above subletting was not pleaded in the above-quoted para 5 of the rent application. It is true that in the above-quoted para 5 of the rent application, it has not been expressly pleaded that any portion of the bungalow was sublet, but it has been averred that the.
Appellant had sublet outhouses/servant quarters to different persons for their residential as well as commercial pursoses. Keeping in view the factum that the strict rules of pleadings are not applicable to rent proceedings, it can be urged that the above defect in not mentioning specifically subletting of the portion of the bungalow, is not fatal to the case as the basic fact of subletting of portions of demised premises to different persons has been expressly pleaded. However, the above para is vague as to the persons to whom the portions of the demised premises were sublet or as to the dates or months or years when the above subletting's were done. Though the rules of pleadings provided for in the C.P.C. Are not strictly applicable to the proceedings under the Rent Restriction Ordinance, but a party is required to' plead sufficient facts as to put the other side to notice of the case which he is called upon to meet. In our view, it is not necessary to examine the above question any further, as we are inclined to hold that the appeal is to be allowed on the ground that the requirement of prior written permission of a landlord .For subletting contained in clause (ii) of subsection (2) of section 13 of the late West Pakistan Urban Rent Restriction Ordinance, 1959, hereinafter referred to as the late Ordinance, could not have been pressed into service as on the basis of the evidence on record, the above subletting was done in 1958 as stated by the respondent .In her cross-examination, which statement has been corroborated by some other witnesses on record.
4. It will be pertinent to trace the history of the .Rent Restriction Law applicable in Karachi at the relevant .Time. Initially Sindh Rent Restriction Act, 1947 (which was published in the Gazette on 28- 3-1947) was enforced in Karachi. Section 9(2)(b) of the above Act dealt with the question of subletting, which provided a ground for ejectment and which read as follows:-- "That the tenant has sublet the premises without the permission of the landlord."
' The above provision was re-enacted in section 10(2)(b) of the Karachi Rent Restriction Ordinance, 1953, which came into force on or about 28-3-1953. The above Ordinance was replaced by the Karachi Rent Restriction Act, 1953, which came into force with effect from 15-4-1953. Section 10(2)
(b) of the above Act was couched in the same language as aforesaid section 9(2)(b) of the aforementioned Act of 1947. However, by the Karachi Rent Restriction (Amendment) Ordinance, 1962 (Ordinance No,XLVIII of 1962) which was published in the official Gazette on 7-6-1962, the amendment was made in section 10(2)(b) inasmuch as the same was substituted as follows:--
(b) the tenant has, without the written consent of the landlord,--
(i) transferred his right under the lease or sublet the entire premises or any portion thereof; or
(ii) used the premises for a purpose other than that for which they were leased or has infringed any condition of the tenure on which the premises are held by the landlord;"
5. The provisions of the late Ordinance were made applicable to Karachi by virtue of the West Pakistan Urban Rent Restriction (Second Amendment) Ordinance, 1962 (Ordinance XLVIII of 1962) gazetted on 7-6-1962, section 3 of which repealed the aforesaid Karachi Rent Restriction Act, 1953, in its application to areas of Karachi other than Cantonment areas. The above Ordinance came into force by virtue of Notification No,Gud-1-17(7)/60 (Kar) with effect from 1-7-1963 in terms of subsection (2) of section 1 of the aforesaid Ordinance. Section 13(2)(ii) was more or less in identical terms as was the aforesaid amended section 10(2)(b) of the Karachi Rent Restriction Act, 1953. The above section 13(2)(ii) of the late Ordinance reads as follows:-- "(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;'
' It may be pertinent to point out that till the amendment of section 10(2)(b) of the Karachi Rent Restriction Act by Ordinance No, XLVIII of 1962, there was no obligation on the part of a tenant to obtain written permission of a landlord before subletting any portion of the demised premises, though the subletting without the permission of a landlord was a ground for seeking ejectment.
However, after the amendment, the law has imposed a statutory obligation on the part of a tenant to obtain a written permission prior to subletting any portion of the demised premises. The effect of the above amendment seems to be that prior to the amendment in 1962 if a landlord after discovering the factum of subletting had not taken action for ejectment for a number of years, it could have been legitimately concluded that he had waived his right or had tacitly consented to the above subletting. However, after the above amendment it will be very difficult for a tenant to successfully defend an ejectment proceeding initiated on the ground of subletting in the absence of written permission. Mr.Fakhruddin G. Ebrahim has relied upon the following cases:--
(i) Mst. Zahida Begum v. Messrs Nadri Bakery & Stoves (PLD 1983 Kar. 618); in which a learned Single Judge of the High Court of Sindh held that the provisions of Section 13 of the late Ordinance could not have been pressed into service retrospectively in respect of subletting which had taken place prior to the enforcement of the Ordinance.
(ii) Naji Dawood v. Mst. Rahima Bai and another (PLD 1980 Kar. 126); ' In the above case also the subletting had taken place prior to the purchase in the year 1958 by the appellant/landlord and he filed ejectment proceedings in 1967. ' One of us (Zaffar Hussain Mirza, J.) who was a party to the said judgment, observed as follows on the question of waiver:- "6. 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 "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 he had acquiesced in the breach thereof and waived his right. Accordingly it was held in Baman Abadan Irani v. Jahangir J. Mobed (PLD 1960 Kar 276), 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 ZA.Channa, J. (as he then was)' in Ghulam Bahauddin Oureshi 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.
' 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."
(iii) Rais Illahi Bux and another v. Inamullah (NLR 1981 AC 315); in which a learned Single Judge of the High Court of Sindh while dismissing a second rent appeal filed by the tenant, observed that as the landlord had failed to file ejectment application in respect of subletting for a period of 15 months, it would be deemed that the landlord had waived the ground of subletting.
6. On the other hand, Mr. All Ahmad Fazeel, learned Sr. ASC appearing for the respondent, has referred to the following cases:-
(i) Muhammad Saleh v. Muhammad Shat (1982 S.C.M.R 33); in which this Court, while dismissing a petition for leave, observed that since no period has been prescribed for filing an application under Section 13(6) of the late Ordinance for striking off defence of a tenant, mere delay by landlord in filing such an application cannot itself amount to waiver. There was delay of about 1-1/2 years in filing of the above application inter alia for the reason that the main ejectment application was dismissed for default.
' In the above case this Court, while dismissing a petition for leave filed by a tenant against the ejectment order, repelled the contention that there was tacit consent or there was any waiver on the part of the landlord. The relevant observations read as follows:-- "Learned counsel first tried to challenge the findings of Tact on both the issues, but did not succeed.
He then contended that even if it be assumed that the house was let out for commercial purposes, its use for those purposes by the petitioner was for a long time and the landlord knew about it.
Therefore, the principle of waiver would apply. Firstly, there is a finding of fact on this point also against the petitioner. Secondly, even if the submission is based on facts, the petitioner would not benefit because, it is the requirement of law that the consent of the landlord should be in writing which, it is admitted was not given by him."
7. In the present case as observed hereinabove, the subletting of a portion of the bungalow for godown was made in the year, 1958. The respondent purchased the bungalow by the end of May, 1962, the ejectment application was filed in August, 1975, i,e, after more than 13 years from the date of purchase of the bungalow by the respondent. There is no evidence on record to explain as to why no action was initiated against the appellant for the aforesaid unauthorised subletting of a portion of the bungalow for godown for a long period of more than 13 years. Mr. Ali Ahmad Fazed has invited our attention to Ex.16 which is a notice for the payment of betterment tax by 31-8-1975.
In our view, the above notice does not explain the above inaction on the part of the respondent for not filing any ejectment case. On the other hand, it lends support to the plea raised by the appellant that after the respondent purchased the bungalow, she voluntarily surrendered two servant quarters to the respondent, who has let out the same for commercial purpose. It is also the case of the appellant that on account of the imposition of betterment tax, she paid the rent at the enhanced rate for a period of two months, namely, July and August, 1975, at the rate of Rs,275. We are, therefore, of the view that it was not a fit case in which the High Court in a second appeal should have set aside the judgment of the First Appellate Court, setting aside the order of ejectment passed by the Rent Controller. The order of the First Appellate Court in the cirumstances of the present case was more just and proper. The inaction on the part of the respondent for a period of-more than 13 years, in our view, constitutes waiver on her part.
8. Before concluding the above judgment, we may observe that the learned Single Judge has held that even though the subletting in question had taken place prior to the enforcement of the above section 13(2)(ii) of the late Ordinance, but the same would cover even a case of subletting which had taken place prior to the enforcement of the said late Ordinance. The reasons which prevailed with the learned Single Judge, may be reproduced in his own words, which read as follows:-- "The question whether a subletting before the promulgation of the Ordinance is within the purview of clause (ii) of subsection (2) of section 13 depends upon the construction of that clause. The relevant words are "has sublet". The present perfect sense contemplates a completed event connected in some way with the present time. I am of the view that the words take within their sweep any subletting which was made in the past and has continued upto the present time. It does not matter that the subletting was either before the promulgation of the Ordinance or after the promulgation of the Ordinance. All such sublettings are within the purview of clause (ii).
' Subsection (1) of section 13 of the Ordinance throws some sonsiderable light on the construction of subsection (2).
' Subsection (1) of section 13 bars the execution of a decree passed before or after promulgation of the Ordinance. A tenant shall not be evicted therefrom except in accordance with the provisions of this section. Subsection (1) contemplates that the grounds of eviction mentioned in section 13 may have arisen before the promulgation of the Ordinance.
' I find no reason for presuming that section 13(2)(ii) is not intended to apply to subletting before the promulgation of the Ordinance. If the tenant has sublet the premises or any part thereof without the permission of the landlady either before or after the promulgation of the Ordinance, she is not protected from eviction under section 13(2)(ii), and it matters not that she had a right to sublet the premises under section 108(j) of the Transfer of Property Act."
9. No doubt that after the enforcement of the late Ordinance in Karachi, an ejectment application was to be filed under it even in respect of a ground, the cause of action of which might have accrued prior to the date of its enforcement. But it does not mean that if an act on the part of a tenant at the time of its commission was legal, it would become illegal retrospectively because of the enforcement of the late Ordinance. To illustrate the above point, we may give an example, suppose under the Karachi Rent Restriction Act, 1953, subletting would have been permissible in terms of section 108(j) of the Transfer of Property Act and a tenant prior to the enforcement of the provision contained in section 13(2)(ii) of the late Ordinance would have sublet a portion of his tenement, in such a case, could the landlord after the enforcement of the above provision of the late Ordinance file an ejectment case on the ground that the tenant had not obtained his prior written permission for subletting. The answer of the above query would be in the negative in the absence of an express provision in the late Ordinance or implied intendment on the part of the law-makers, to make it applicable retrospectively. In the present case, though the rent case was to be filed under the provisions of the late Ordinance on the ground of subletting, but since the subletting in hand was made in 1958 when the requirement of prior written permission was not in the field and even express oral or implied tacit permission would have been sufficient, the case was to be judged on the basis, whether in the cirumstances of the case, there was tacit permission on the part of the respondent. We may point out that the appellant in her written statement had pleaded the landlord's written permission in respect of the subletting of a portion of the outhouses/servant quarters and tacit permission (though the word 'tacit permission' have not been used) in respect of the portion of the bungalow. It may be pertinent to reproduce sub-paras
(c) and (d) of para 6 of the written statement, which read as follows:--
(c) That the opponent's late mother Mrs. Jerbai Nadirshaw Vakil with the consent of then landlord Mr.F.N.E. Dinshaw had sublet portion of the property in her occupation and ever since then i,e, prior to 1950 sub-tenants both in respect of residential and commercial purposes exist on the said property, on account of permission dated 15-11-1949, granted by the then landlord to opponent's mother, photocopy of the said permission is attached herewith and marked 'D'.
(d) That since last over 15 years before applicant became the landlady, a portion of the ground floor of the bungalow in question is in possession of Mr. Kabraji as sub-tenant for storage purposes.
The said Mr. Kabraji who is a carpenter is also the sub-tenant in respect of the outhouses/cabin since over 15 years and said Mr. Kabraji ever since then continues to remain the sub-tenant of the opponent. The opponent in fact has been showing the income received by her from her sub-tenant Mr. Kabraji in her income tax returns over a period of last many years. It is further submitted that in spite of these sub-tenants being on the premises as such sub-tenants for over 20 years, neither the previous landlords nor the applicant after becoming the landlady in the year 1962 ever objected to the opponent's subletting the premises for residential-cum-commercial purposes, till June 1975 by legal notice dt: 18-6-1975 for the first time, for motives best know to herself. However, suitable reply to applicant's notice dated 18-6-1975 was sent on 25-6-1975."
' It may be observed that the High Court has recorded a finding on the facts pleaded in above- quoted sub-para. (c) in favour of the appellant as is evident from the relevant quoted portion of the judgment hereinabove in para 3, but recorded finding on the facts pleaded in above-quoted sub-para. (d) against the appellant on the assumption that the requirement of prior written permission of a landlord for subletting provided for under section 13(2)(b)(i) of the late Ordinance was applicable to the instant case, which assumption was not legal for the reasons already discussed above. We may point out that the admission on the part of the appellant in her cross- examination that she had not obtained permission for subletting of the portion of the bungalow was not inconsistent with the facts pleaded in above-quoted sub-para (d) of the written statement.
10. We may also observe that if the respondent's application for ejectment on the ground of subletting was not competent for the aforesaid reason, it could not have been sustained on the ground that premises were used for a purpose other than that for which they were leased out or that the appellant had infringed any condition of the tenure on which the premises were held by the respondent. Sub-clause (ii) of clause (b) of subsection (2) of section 10 providing above ground was also incorporated first time in the Karachi Rent Restriction Act by the aforesaid amending Ordinance in June, 1962.
11. The upshot of the above discussion is that the above appeal is allowed. The High Court's judgment is set aside and the judgment of the learned First Appellate Court is restored. However, there will be no order as to costs.