Mrs. BADRUN NISA REHM AN vs K. C. MAMOO
This matter concerns a petition for leave to appeal against a judgment of the High Court of Sind, which set aside an eviction order previously obtained by the landlord against the tenant. The landlord had sought eviction on grounds of default in rent payment, unauthorized construction, and unauthorized subletting. While the Rent Controller and the Appellate Authority upheld the eviction based on unauthorized construction and subletting, the High Court reversed this decision, accepting the tenant's plea of waiver due to the landlord's continued acceptance of rent after gaining knowledge of the alleged violations. The Supreme Court granted leave to appeal, identifying two primary legal questions for examination: first, whether the doctrine of waiver was legally established given the circumstances of the landlord's acceptance of rent; and second, whether the tenant was procedurally entitled to raise the plea of waiver for the first time before the High Court, having abandoned it during the proceedings before the Rent Controller and the first Appellate Court.
- Can a tenant raise a plea of waiver for the first time in the High Court after abandoning it before the Rent Controller and the first Appellate Court?
- Does the acceptance of rent by a landlord after gaining knowledge of unauthorized construction and subletting constitute a waiver of the right to seek eviction?
ORDER
ZAFFAR HUSSAIN MIRZA, J.-- 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 to 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 to-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 the 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.