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Second Rent Appeal No.3 of 1983, decided on 4th December, 1986.

---Ss 13 & 15--Default in payment of rent--Personal requirement- Additions and alterations--Security adjustment--Rent due from tenant Was more than the security amount which was lying with landlord--Rent therefore not adjustable and tenant rendering himself defaulter- Findings of both Courts below on question of personal requirement, additions and alteration, concurrent and against tenant--Courts below rightly appraising evidence of parties on such issues--Order of ejectment maintained in circumstances.

P L D 1971 Lah. 610; 1980 S C M R 834; P L D 1980 S C 298; 1981 C L C 1141; 1984 C L C 71; P L D 1985 Kar.743; P L D 1985 118 and 1986 C L C 2029 rel.

---Ss.13 & 15--Security--Rent is adjustable against security when it is less than security amount lying with the landlord.

M.M.K.A.Zai for Appellant.

Khalilur Rehman for Respondent.

Date of hearing: 25th November, 1986.

This second appeal under section 15(4) of West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as the Ordinance.' has been filed by Mr.Izhar Khan--landlord against the judgment dated 28th October, 1982, of IInd Additional District Judge, Karachi, (First Appellate Court).

2. Briefly stated the case is that on 3-2-1970 appellant filed Rent Case No.363/70 under section 13 of the Ordinance against respondent-tenant, Mobin Siddiqui, on the ground of default in payment of rent and other grounds of additions and alterations, personal bona fide requirement. The respondent is a tenant in respect of the shop No.42, Block 5, Commercial Area, Liaquatabad, Karachi at the rate of Rs.70/- per month. By an agreement dated 28-1-1967, the tenancy started and it was for 11 months only.

3. The written statement was filed by the respondent in which he stated that at the time of execution of lease agreement a sum of Rs.2,000 was paid to the appellant as fixed deposit which is still lying with him. The other grounds have been challenged by the respondent in the written statement.

4. The Rent Controller, on the pleadings of the parties, framed following 5 issues:-

"(1) Whether the opponent is a defaulter and is liable to ejectment u/s 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959

(2) Whether the applicant bona fide and in good faith requires the shop in dispute for his use

(3) Whether the opponent has made alterations and renovation in the premises in question without consent and permission of the applicant ,

(4) Whether the sum of Rs.2,000 is lying in deposit with the applicant, if so to what effect

(5) To what relief, if any, the applicant is entitled "

5. Finally the Rent Controller came to the conclusion that respondent has committed default for which he is liable to be ejected. The respondent-tenant filed 1st Rent Appeal No.518/78. The learned IVth Additional District Judge, Karachi, allowed the appeal and dismissed the rent case.

6. I have heard Mr. M. M. K. A . Zai for the appellant and Mr. Khalilur Rehman for the respondent.

7. It is admitted by both the counsel that there exists relationship between the parties. The rate of rent is not disputed. The rent case was filed on the expiry of the agreement which was executed in the year 1967. The default is alleged for six months from August, 1969.

8. Mr.M.M.K.A.Zai argued that default has been proved and respondent is liable to be ejected. It is contended by the learned counsel that adjustment from the deposit cannot be allowed as there was no such clause in the agreement. He has referred to the cases reported in P L D 1971 Lah. 610, 1980 S C M R 834, P L D 1980 S C 298. He has also referred to other cases reported in 1981 C L C 1141, 1984 C L C 71, P L D 1985 Kar.743, P L D 1985 S C 148 and 1986 C L C 2029 and submitted that the recent case is a distinguishable from the cases reported in P L D 1980 S C 298 and has placed reliance on the cases reported in P L D 1985 Kar. 43 and 1986 C L C 2029 wherein it has been held that deposit is not adjustable.

On the other hand, Mr. Khalilur Rehman, Advocate appearing for -the respondent, argued that respondent sent money order in respect of rent for 6 months during the pendency of rent case which he refused and this fact has been admitted by attorney of the appellant Haji Muhammad. The attorney has also admitted that tenant used to pay rent after 3-4 months and such practice was prevailing. However, finally it is contended by Mr. Khalilur Rehman that arrears are less than the deposit lying with the appellant and it could easily be adjusted towards the rent.

9. Now I proceed to refer the cases relied upon by the learned counsel. The case of Muhammad Ashraf v. Muhammad Sharif reported in P L D .1971 Lahore has been considered by Supreme Court in PLD 1980 S C 298 where it has been observed that an agreement can only be made by the consent of the parties and if an agreement is for a fixed period, it comes to an end on the expiry of agreement period, unless it is renewed by both the parties. In the present case it is an admitted position that agreement had expired in the year 1968 but it was not renewed. The contention of Mr.M.M.K.A.Zai that any provision in the agreement which is in accordance with the law exists even on the expiry of the agreement. His case is that in agreement it is specifically mentioned that this deposit can never be adjusted towards the rent. In Yousuf's case P L D 1980 S C 298 this aspect has also been considered and held that any clause in the agreement which is illegal and contrary to the provisions of the Ordinance is not a binding on the parties. In case of Shaikh Abdul Sattar v. Muhammad Afzal reported in P L D 1985 S C 149 Relevant (150) it has been held as under:-

"Viewed in its true perspective the agreement relied upon by the petitioner came to an end in year 1972 on the expiry of its term according to which it was to enure for 11 months because there was no further renewal. So, after the expiry of the agreement the rights and liabilities of the tenant fell to be governed by the provisions of the West Pakistan Urban Rent Restriction Ordinance, 1959 which regulate the terms as to ejectment.

We endorse this view based as it is on 'the view taken by this Court itself in Muhammad Yusuf v. Abdullah. The first contention is accordingly repelled."

10. The same point has also been considered in a case of Mirza Abdul Aziz Baig v. Mushtaq Ahmad Shaikh reported in 1980 S C M R 834 where it has been held that when deposit is by way of security against tenant's liability for damage of demised premises, it is not adjustable against the rent due from the tenant. However, their Lordships have observed that looking to the circumstances of default for one month if court exercised discretion in favour of the tenant such order of the Rent Controller was not interfered with. This judgment was announced on 24th May, 1980 whereas Yousuf's case was decided on 30th August, 1980. In case reported in 1981 C L C 1141 this court allowed the adjustment on the basis of decision of the Supreme Court as reported in P L D 1980 S C 298 as that judgment was the latest judgment on this point. In a case reported in 1984 CLC 71 the adjustment was allowed by this court and it was held that security amount deposited with landlord was larger than the amount of arrears of rent, therefore, ejectment cannot be claimed on the ground of default. In the same case it has also been held that agreement means agreement in force and not agreement expired or dead. The facts of the case reported in P L D 1985 Kar. 43 were different and in that case only question of tentative rent order was considered and no plea was taken about the security deposit in the written statement. The facts in the present case are otherwise.

11. In the case of Mst.Malikunnissa Begum v. Faqir Muhammad reported in 1986 C L C 2029 decided on 28th November, 1985, the case of Supreme Court reported in P L D 1985 S C 148 was not considered. Therefore, in these circumstances, in view of the above discussion, I am of the view that on the expiry of the condition of dead agreement that deposit is not adjustable towards the rent does not apply to the tenant. In my opinion the rent is adjustable when it is less than the amount lying with the appellant. On other issues of personal requirement and additions and alterations the findings by both courts are concurrent and against the appellant, therefore, no arguments were advanced by the learned counsel. However, no sufficient evidence was adduced to prove these issues and both courts have rightly appraised the evidence of the parties.

For the reasons stated above the appeal is dismissed with no order as to costs.

M.Y.H./M-193/K Appeal dismissed.

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