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First Rent Appeal No. 791 of 1983, decided on 15th October, 1986.

---S.13--Sind Rented Premises Ordinance (XVII of 1979), Ss.15 & 21--Ejectment--Sub-tenancy--Objection to sub-tenancy to be raised within a reasonable time--Sub-tenants in occupation of a portion of disputed premises since time of previous landlord who raised no objection and waived same--Waiver of sub-tenancy by previous landlord binding upon new landlord who acquired rights of previous landlord after purchasing property--New landlord himself waited for more than three years before taking objection to alleged sub-tenancy and even accepted tender of one month's rent by sub-tenant--Landlord, held, could not be allowed to raise objection to sub-tenancy which he himself waived after purchasing property, for three years, which was a very long period and could hardly be considered a reasonable time for protest--Interference with order of Rent Controller dismissing ejectment application declined in circumstances.

1985 C L C 2295 and P L D 1981 Kar. 357 ref. P L D 1982 Kar. 188 rel.

M.L. Shahani for Appellant.

Syed Inayat Ali for Respondent.

Date of hearing: 18th October, 1986.

The appellant has felt aggrieved against the order passed by XI Senior Civil Judge and Rent Controller, Karachi, dated 21-9-1983, rejecting the application for ejectment filed by the appellant against the respondent. The ground on which the ejectment has been sought was that the respondent had constructed a partition wall and thereby damaged the disputed property and that he had sub-let the disputed premises. The respondent had submitted it his written statement that the alleged sub-tenants were business concerns of the respondent and their offices have been located in the premises for about 10 years and the same have existed as such without protest or objection from the appellant and their predecessor-in-interest, who have, by their conduct, waived such objection.

2. The two issues in respect of damage and sub-tenancy were framed. The case of the appellant was sought to be proved by the affidavit of Tahir Ali Noorani, who was the Deputy Admns. Officer of the appellant. He gave a list of 9 different concerns, some of them are limited companies, who were in occupation of the disputed premises and the basis was that the sign boards of the said firms were affixed at the entrance of the ground floor and that the appellant had issued notices to those concerns as well as to the respondent in December, 1975. In cross-examination, the deponent admitted that they had purchased the building in 1972. He had further admitted that some of the Sign Boards were already there and some have been put afterward. He also admitted that the respondent was existing tenant of the building in 1972. He admitted that he had not seen the alleged sub-tenants paying rent to the appellant. He also stated that he had received the cheque from Fair Trading, which they had encashed. He also stated that he had never made any enquiry from Mr. Usman, who claimed to be the proprietor of Pak Pin Products Ltd. In the end he stated that it was his inference that the premises is sub-let.

The respondent in his deposition denied the allegation of sub-letting and stated that the premises has not been sub-let or that there was any sub-tenant. He also denied that he had made any construction of partition wall. In cross-examination he admitted that the premises let out to him was open portion of the 3rd floor and stated that he raised several partition walls on that portion in order to make chambers of various offices and the partition walls were made by him converting partly wooden and partly cemented. He also stated that he had recently covered those chambers with roof but he explained that he had come into possession of this building in 1973 when he was the Manager of Life Insurance Corporation of India, which was the owner of the building. He admitted that the tenancy stands in his personal name. He also admitted that the business in the premises was being carried on by 9 companies, named in the ejectment application, para. 4, but he stated that they belong to him. He also stated that the Sign Boards of the Firms were there. He claimed that he was either Chairman or Director of these Companies. He stated that these Companies were there for nearly 10 years, but he was not able to produce the documents in respect of the Pak Pin Products as it had been closed down. He produced the Articles of Memorandum of Association of Mini Golf Ltd., as Ex. 0/1, which did not show his name as a Director or a person connected with this Company. He also admitted that Association of Auto-Motor Cars' owners was carrying on business in the disputed premises and he was its General Secretary and other office-bearers of that Association also attend its meetings. He also admitted that he had no document to show that he was connected in any way with Super Petroleum and Gas Company Ltd.

3. The Rent Controller did not find any damage to the premises nor he found any convincing argument about sub-letting.

4. Mr. M.L. Shahani, learned Counsel for the appellant has candidly submitted that he is not pressing the ejectment on the basis of damage to the premises on account of the construction of the partition wall, but he pressed the case in respect of sub-letting. In respect of the sub-letting he relied upon 1985 C L C 2295, where it was held that if original tenant had retired and new tenant had been inducted into partnership without the consent of the landlord then it was a case of sub-tenancy. He also relied upon P L D 1981 Kar. 357, where it was held that admission or consent by a party, which is not in consonance with law is not estoppel.

He submitted that in para. 4 of the written statement the respondent had clearly admits that there were many Companies, who were in occupation of premises, but they were there for about last 10 years and only waiver was pleaded. He, therefore, submitted that the sub-tenancy having been admitted and consent in writing of the appellant not having been proved, the ejectment should have been allowed.

5. Syed Inayat Ali, Advocate on the other hand submitted that the occupation of the premises by the different Companies was of a very long date much before 1972, when the appellant had purchased the property. And, therefore, the appellant had inherited the premises in the same condition and with the same liabilities and rights as were with the landlord and the previous landlord had never objected to the presence of these. Companies, therefore the present landlord had waived the said objection to respondent of the sub-letting and the appellant is bound by the said waiver. He further submitted that in any case there was no objection by the present appellant for a full period of 3 years in respect of sub-letting in spite of the fact that the appellant's own witnesses had admitted that some of the boards of these alleged sub-tenant companies were existing at time when the building was purchased by the appellant. He submitted that there was clearly waiver of more than 3 years even by the appellant itself as the appellant had objected to this alleged sub-letting only in December, 1975 and not earlier. It was further submitted that even the notice of December, 1975 did not mention as to when the sub-letting was noted by the appellant.

Syed Inayat Ali relied upon P L D 1982 Kar. 188, which was a case of sub-letting and it was held that if action is not taken in respect of the sub-letting for a reasonable time then the objection is waived.

I agree with Mr. Shahani that the appellant had been able to prove the sub-letting of a portion of the disputed premises by the respondent and in fact he is right in contending that the sub-letting is even admitted in para. 4 of the written statement of the respondent himself. But the difficulty for the appellant is that the appellant was acquired the building when all these alleged sub-tenants were also in occupation of a portion of the disputed premises or at-least some of them were admittedly there and there is no evidence of any objection to the same having been taken at any time by the previous landlord and, therefore, the obvious inference can be that the subletting had been waived by the previous landlord. The respondent had claimed that these Companies existed since last 10 years or so and, there was no proof to the contrary, therefore, the sub-tenancy was in existence for the last 10 years before 1976 when the application was filed. Consequently, it is obvious that the waiver of the sub-tenancy by the previous landlord is binding upon the appellant, who have acquired the rights of the previous landlord.

It is also correct that even the appellant itself waited for more than 3 years before taking objection to the alleged sub-tenancy. The building was acquired by them in 1972 and the earliest notice was made by them only in 1975 and during all these times without having a formal protest they have been accepting rent from the respondent and allowing the sub-tenants to exist. Not only that, but the appellant have also accepted the tender of one month's rent by even a sub-tenant, namely, Fair Trading Company as admitted by the appellant's witness himself. This again shows a conduct waiving the objection in respect of the sub-tenancy. The period of more than 3 years, when the sub-tenancies have been allowed to continue without I an objection by the appellant, is a very long period and the appellant cannot be allowed to raise objection to the sub-tenancy after they have waived their objection to the same for 3 years. If it had been a question of raising of an objection within 3 to 6 months of the purchase of the property by the appellant, I would have considered the same as a reasonable time to protest, but 3 years can hardly be regarded as a reasonable time of protest in respect of the sub-tenancy when they have been in existence even before the purchase of the property by the appellant and have been further in existence for more than 3 years even after the purchase of the property by the appellant.

6. In this view of the matter, this appeal is found to be without merit and is hereby dismissed.

M.Y.H./S-31/K Appeal dismissed.

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