Find a Lawyer

Civil Petition For Leave to Appeal No.496‑K of 1984, decided on 22nd January, 1985.

(On appeal from the judgment and order of the High Court of Sind, Karachi, dated 5‑8‑1984, in Second Appeal No.163/80 ).

‑‑‑Art.185(3)‑‑Sind Rented Premises Ordinance (XVII of 1979), S.21‑ Ejectment‑‑Unauthorised construction and subletting by tenant estab lished‑‑Plea of having obtained oral consent from landlord/waiver and acquiescence by way of his continuing to accept rent‑‑Leave granted to examine (i) Whether waiver was established in circumstances of case, and (ii) Whether tenant was entitled to raise plea of waiver for first time in High Court after having abandoned it before Rent Controller and first appellate Court.

Fakhruddin G. Ebrahim, Senior Advocate Supreme Court and M.S. Ghoury,

Advocate‑on‑Record for Petitioner.

Syed Sain Ahmad, Advocate Supreme Court and Ali Akbar,

Advocate‑on‑Record for Respondents.

Date of hearing: 22nd January, 1985.

.‑‑ The petitioner obtained an ejectment order from the Rent Controller against the respondent in respect of a commercial building at Karachi, on the ground that the latter had committed default in the payment of rent, constructed two rooms over the first floor of the building without his consent and sublet a portion of the demised premises without his consent. On appeal the Appellate Authority and Additional District Judge reversed the findings on the question of default in the payment of rent but affirmed the finding on other issues and upheld the order of eviction. On a second appeal by the tenant, however, the High Court of Sind, Karachi, set aside the order of eviction and allowed the appeal of the tenant by its judgment dated 5‑8‑1984.

2. The main plea advanced by the respondent as against two‑fold grounds taken by the landlord, namely, unauthorised construction and subletting was that in spite of knowledge gained by the landlord in regard to these facts he continued to accept the rent and thereby waived his right to evict the respondent. It seems that there was no controversy on the question that some construction was raised by the tenant and he had sublet a portion of the rented property. The tenant had asserted in his evidence that he had obtained the oral consent of the landlord in regard to both, the subletting as well as the construction put up by him. In the alternative, as already stated, he had pleaded waiver on the part of the landlord by acceptance of rent after the event.

3. After hearing the learned counsel in support of this petition for leave to appeal from the judgment of the High Court, we feel that the question whether waiver was established in the circumstances of this case requires to be examined. The other question for examination would be whether the tenant was entitled to raise the plea of waiver for the A first time in the High Court after having abandoned it before the Rent Controller and the first Appellate Court. Leave is accordingly granted. Security for costs Rs.2,000. The appeal to be made ready on the present record but it will be open to the parties to file additional documents if any.

M.I. Leave granted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.