' The only question that arises in the present appeal is, whether the appellants had without written consent of the respondent-landlord used the demised premises for the purpose other than that for which they were let out.
2. The respondent had sought the appellants' ejectment from the demised premises on the ground of default in payment of rent and conversion of the premises from residential to commercial purposes. The case of the appellant, however, was that the premises were being utilised by them since 1975 for residential purposes and also for storing goods which were used for the purpose of their business and the same was being done by the appellants with the consent of the late predecessor of the respondent, namely, Tar Muhammad.
3. Although, the ground that the appellant had committed default in the payment of rent did not find favour with the learned Controller but the appellants were ordered to be evicted from the premises on the ground that they had used the premises for the purpose other than that for which the same were let out
4. The only ground urged before me by Mr M.S. Khatri, learned counsel for the appellants is that the premises in question were being used for storing the goods of the appellants for business purposes since before 1975 with the consent of the respondent's predecessor. The contention is untenable because admittedly the written consent of the landlord was not taken by the appellants as contemplated by section 15(2)(iii) of the Sindh Rented Premises Ordinance. The fact that the premises were originally let out for residential purposes and subsequently the appellants utilised the same for storing the goods for commercial purposes, was admitted by the appellants, both in the written statement filed on their behalf as well as in their evidence. The appellants' witness Hussain son of Adam further admitted during his cross-examination that the appellants' family was not residing in the demised premises since 1984-85. Even if the contention that objection was not raised by the landlord to the use of the premises for the purposes of storing of goods of the appellants is accepted, it cannot amount to waiver, as was observed by the Supreme Court in Khalifa Fateh Muhammad v. Ahmad Nasir Khan 1988 SC MR 689. It was observed in this case as follows:-- "Learned counsel first tried to challenge the findings of fact on both the issues, but did not succeed.
He then contended that even if it be assumed that the house was not 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."
5. For the aforesaid reasons, the order passed by the learned Controller is sustained and the appeal is, therefore, dismissed. The parties are left to bear their own costs.
6. Mr. Zafar Hadi Shah, does not press the cross-objections filed by him. The same are, therefore, dismissed.
7. By consent, three months time is allowed to the appellants to vacate the demised premises