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First Rent Appeal No. 901 of 1982, decided on 2nd September, 1986.

‑‑‑Ss. 15 & 21‑‑Default in payment of rent‑‑Security deposit‑‑Whether adjustable towards rent arrears‑‑Rent agreement in force on date when ejectment application filed before Rent Controller‑‑Fixed deposit held by landlord as security excepted from being adjusted towards monthly rent‑‑Tenant failing to tender rent on date fixed in agreement for payment of rent‑‑Default on part of tenant established‑‑Eject men application allowed in circumstances.

Zaheeruddin Khan for Appellant.

Abdul Sattar Pingar for Respondent.

Date of hearing: 2nd September, 1986

This appeal under section 21 of the Sind Rented Premises Ordinance, 1979 is filed by the appellant /landlord against the order of Rent Controller, dated 31st July, 1982 whereby he rejected the rent application instituted by the appellant against the respondent on grounds of default and personal requirement.

The default in the ejectment application was alleged by the appellant for the months of June to October, 1980. It is also specifically alleged in the rent application that the relationship between the parties is governed under a written agreement of tenancy, dated 25‑2‑1972. The respondent denied the allegation of default and pleaded that the rent for the months of June and July, 1980 was paid but the respondent did not issue any receipt and, therefore, he again remitted rent for June to August on 11‑8‑1980. The learned Rent Controller after hearing the parties came to the conclusion that the agreement of tenancy, dated 25‑2‑1972 was no more in force and as under the aforesaid agreement the appellant was holding as deposit a sum of Rs.2, 250 which was liable to be adjusted towards the rent, therefore, there was no default on the part of the respondent as alleged in the application. Mr. Zaheeruddin Khan, learned counsel for the appellant contends that the findings of the Rent Controller are contrary to the evidence on record as both in the pleadings as well as in the evidence it is admitted that the tenancy agreement, dated 26‑2‑1972 was in force when rent application was instituted before the Rent Controller. After hearing the learned counsel for the parties I am of the view that the conclusion of the Rent Controller that the rent agreement, dated 25‑2‑1972 executed between the parties had expired and that the security deposit held by the appellant under the aforesaid agreement was required to be adjusted towards future rent is misconceived. In paragraph 1 of the rent application the appellant has specifically stated as follows:‑

"(1) That the applicant is the landlord and owner of the building built on Plot No.l‑H‑5, 1/A, known as Rahim Villa, Nazimabad, Karachi and the opponent is the tenant of the applicant in a right portion on the first floor in the same building @ Rs.550 p. m. exclusive all other charges through a written agreement of lease, dated 25‑2‑1972 executed between the applicant and the opponent. photo copy of the same is filed herewith and annexed as Annexure 'A‑2'."

The above allegation was admitted by the respondent in paragraph of the written statement. Apart from it from the correspondence which took place between the parties and which is on record, as well as from the pleadings of the parties it is an admitted position that the rent in respect of the premises was payable in advance before 3rd or 4th of each month. As the date was fixed for payment of rent in the agreement between the parties the default is to be resolved with the reference to such date. The rent for the months of June, July and August, was remitted by the respondent on 11‑8‑1980 by money order and as such there was clear default in payment of rent for the months of June, and July, 1980. Mr. Abdul Sattar Pingar, learned counsel for the respondent contends that the agreement which was executed on 25‑2‑1972 came to an end because after the execution of the agreement the rate of rent was revised twice between the parties. I have gone through the agreement which is on record as Exh.A. The agreement does not show that it was entered into between the parties for any specified period. On the contrary it shows that the tenancy created in the agreement was from month to month. Apart from it in view of the admission of the respondent in his written statement admitting paragraph 1 of the ejectment application the validity of the agreement of tenancy on the date of filing of application for ejectment was not in dispute. The Controller proceeded on the assumption that as the agreement between the parties has come to an end the fixed deposit held by the appellant under the agreement, dated 25‑2‑1972 was liable to be adjusted and, therefore, there was no default on the part of the appellant in payment of rent for the months of June and July, 1980. This approach of the learned Rent Controller is wholly erroneous as firstly, the rent agreement was very much in force on the date when the ejectment application was instituted before him and secondly the security deposit mentioned in paragraph 2 of the agreement was exclusively excepted from being adjusted towards monthly rent of the premises. In these circumstances the sum of Rs.2,250 held by the appellant as security deposit could not have been applied for adjustment towards future rent of the premises. I accordingly reverse the finding of the Rent Controller on the issue of default and hold that as the rent was not tendered within 15 days of the date fixed in the agreement for payment of rent for the months of June and July, 1980 there was default on the part of the tenant appellant.

The second ground on which the ejectment application was instituted related to bona fide personal requirements. The Rent Controller rejected the application on this ground as well and after hearing the learned counsel for the parties I am of the view that no interference is called for with regard to the finding on this issue. It is an admitted position that after filing of the rent application one of the premises on the ground floor had fallen vacant but it was re‑let to another ‑tenant at an enhanced rent. No explanation on whatsoever was offered in the evidence of appellant before the Rent. Controller as to why this premises could not be utilized for the alleged growing needs of the appellant and his family. I, therefore, find no reason to interfere with the finding of the Rent Controller on this issue. As a result of above discussion the appeal is allowed and the rent application is granted only on the ground of default in payment of rent. The respondent is allowed six months time to vacate the premises on the condition that he will continue to deposit the monthly rent in Court as directed by the Rent Controller during this period. There will be no order as to costs.

M.Y.H. Appeal allowed.

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