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First Rent Appeal No.467 of 1987, decided on 17th May, 1987.

---Ss.15(2)(iii)(a) & 21(1)--Ejectment on ground of subletting- Waiver--Where landlord after filing ejectment case against original tenant on ground of subletting, had accepted sub-tenant as his tenant ,during pendency of ejectment proceedings and also had received rent from him, such acceptance on behalf of landlord, held, would not operate as waiver because he had filed ejectment application on that ground before subsequent arrangement.

-----Ss.2(f),(j),5 15 & 21(1)-----Ejectment on ground of subletting---Relationship of landlord and tenant--Establishment of--Sub-tenant- accepted by landlord as his tenant during pendency of ejectment proceedings against original tenant on ground of subletting -- Rent and security deposit also received by landlord from such tenant- Relationship of landlord and tenant, held, was established between landlord and such sub-tenant even if there was no written tenancy agreement between the parties.

M. Abdul Karim Siddiqui for Appellant.

This appeal is directed against the judgment of IIIrd S.C.J. and R.C. Karachi dated 24- -1987 in Case No.13 of 1985. The relevant facts are that the appellant is the landlord of shop No.2 on Plot No.384 Usmania Colony, Gulbahar, Karachi, which was on rent with respondent No.1 at Rs.100/- per month. Respondent No.1 later on sub-let the said shop to respondent No.2, and, therefore, appellant filed ejectment case against both the respondents. During the pendency of the proceedings the appellant entered into an oral understanding with respondent No.2 accepting him as tenant at Rs.200/- per month and also he took one month's rent and also took Rs.1,000/- as security deposit. The respondents had denied the case of subletting. The issue of subletting was framed and the appellant filed his affidavit of evidence and he was cross-examined. However, none of the respondents offered themselves to be cross-examined and, therefore, their affidavits- in-evidence had to be ignored.

2. The Rent Controller did not accept the ejectment application on the ground that there was a waiver of the subletting and further on the ground that there was a new relationship of landlord and tenant created between the appellant and respondent No.2. This finding was based on the admission made by the appellant that he had accepted Rs.1,000/- from respondent Na.2 as security advance and had also accepted one month's rent from him at Rs.200/- per month..

3. Mr. Abdul Karim Siddiqui submitted that there was no justification for the finding of waiver by the. Rent Controller as the appellant had filed an ejectment case on that ground before the arrangement with respondent No.2 had taken place. This submission of the counsel is justified because there was .no waiver by the appellant when he had already sought the ejectment of the respondents on account of subletting. However, the other finding of the Rent Controller that there was a new relationship of landlord and tenant created between the appellant and respondent No. 2 is justified in view of the fact that there .was such arrangement admitted by the appellant himself. Mr. Siddiqui contended that no tenancy should have been allowed to be established in this case because there was no written agreement between the parties. This submission is not completely correct in view of the fact that the provisions of section 5 of the Sind Rented Premises Ordinance, 1979 have been interpreted to be directory by some of the Hon'ble Judges of this High Court so far as the written agreement is concerned. I am in agreement with those decisions. The net result is that there is a relationship of landlord and tenant between the appellant and respondent No.2 at Rs.200/- per month rent and the appellant has taken Rs.1,000/- as security advance from him. In view of that relationship the respondent No.2 cannot be ejected from the premises. Respondent No.1 has of course now no interest in the premises as the finding of the Rent Controller is that he had actually handed over the possession of the premises to respondent No.2. In this view of the matter the appellant has been relieved of any responsibility towards respondent No.1 and the new relationship of landlord and tenant exists between the appellant and respondent No.2 and consequently this appeal is not found to be sustainable against respondent No.2 and it is infructuous against respondent No.1, who is already out of possession. This being the position this appeal is dismissed in limine.

H.B.T. /L-7/K Appeal dismissed.

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