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First Rent Appeal No.462 of 1982, decried on 29th March, 1984.

--Ss.15 & 21--Security amount, adjustment of--According to agreement amount lying with landlord as fixed deposit refundable to tenant on vacation of rented premises--Contention that landlord, having amount with him as security deposit and after adjusting same tenant could not be held as defaulter--Such amount could not be adjusted or utilized in any manner other than purpose mentioned in agreement--Contention held without force-- Ejectment order maintained--[P L D 1980 S C 298 held not applicable].

P L D 1980 S C 298 held not applicable.

A.Q.Malik for Appellants.

Shaikh T.A.Fareedi for Respondent.

Date of hearing: 4th March, 1984.

The respondent filed an ejectment application against the appellant in respect of House No.459/19 Al Noor Society P.B. Area, Karachi. It was alleged that the house was rented out at Rs.300 p.m. which was enhanced with the consent of the parties to Rs.350. The appellant paid rent at that rate upto May. 1979 and thereafter defaulted in payment of rent and sublet the house to the appellants Nos.2 and 3. It was also alleged that the appellants have damaged the property and that the premises is required bona fide by the respondent as he intends to marry. The learned Controller held that appellant has committed default in payment of rent. On other issues the finding was given against the respondent. In defence the respondent had received the rent for three months till May, 1979 in advance through cheque dated 27-5-1979 and as it was presented late it was credited to his account on 19-8-1979. Thereafter, rent has been paid to the respondent. All other allegations were also denied.

From the evidence it seems that the agreement was executed between the parties for 11 months which expired in February, 1979. A copy of this agreement dated, 6-4-1976 was produced which provides that rent shall be Rs.300 p.m. Clause No.1 of the agreement reads as follows:-----

(1) That the said First Party has this day received Rs.4,000 (Rs. four thousand) from the second party, receipt whereof is hereby admitted by the First Party. Rs.2,000 (Rs. two thousand) will be treated as Fixed Deposit which will only be refundable to the Second Party on vacation of the said premises and Rs.2,000 will be adjustable in the monthly instalment at the rate of Rs.150 per month."

So far the rate of rent is concerned it was enhanced to Rs.350 because the appellant himself admitted that he had paid Rs.1,050 as rent for three months. This evidence of payment is in respect of rent upto May, 1979. Besides this payment there is no evidence to establish that the rent had been paid by the appellant after May, 1979. It was stated by the appellant that on 11-7-1979 and 23-8-1979 rent was paid through cheque but no evidence worth the name, except the statement of the appellant, was produced to show that any cheque was issued or encashed by the respondent. Two rent receipts produced by the appellant relate to the rent paid for certain months in the year 1977. The appellant has failed to discharge the burden that from June, 1979 upto the filing of the ejectment case on 9-9-1979 he had paid the rent to the respondent.

Mr.A.Q.Malik the learned counsel for the appellant contended that on the date of filing of the ejectment application according to the respondent rent for three months that is June, July and August was due. On that date admittedly the respondent had with him Rs.2,000 as security deposit which was in excess of the amount of rent due which could have been adjusted by the respondent and, therefore, there was no default. The learned counsel has relied on P L D 1980 S C 298. In my opinion this judgment is not applicable to the appellant's case as in the present under the agreement this amount was to be refunded to the appellant at the time he vacated the premises. This deposit was not an amount which was to remain as advance rent or converted into a debt due to the appellant. The nature and character of this deposit was specifically mentioned in the agreement and, therefore, it would not be proper to adjust or utilise it in any manner other the purpose mentioned in the agreement. The appeal is, therefore, dismissed.

The appellant is allowed to hand over vacant possession to the respondent within three months provided he pays rent for this period.

M.A.K. Appeal dismissed.

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