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First Rent Appeal No. 1147 of 1982, decided on 14th May,1986.

‑‑‑Ss. 15(2)(ii) & 21‑‑Default in payment of rent‑‑Proof‑‑Tendering of monthly rent of premises to landlord is duty of tenant‑‑In absence of any evidence on record to show that tenant had paid or tendered rent to landlord till passing of tentative rent order, default in payment of rent was proved‑‑Rent Controller, held, rightly allowed rent case on point of default.

P L D 1980 S C 298; 1981 C L C 1060; 1986 C L C 866; P L D 1976 S C 496; Muhammad Ali v. Mst. Madina Bano and 2 others 1986 CLC 955; Mst. Amina Begum and others v. Mehar Ghulam DastagirPLI3 1978 S C 220 ref.

‑‑‑Ss. 15(2)(ii) & 16(1)‑‑Ejectment on ground of default Security deposited by tenant‑‑Adjustment of security deposit towards arrears of rent‑‑Specified amount deposited by tenant with landlord as security deposit could safely be adjusted towards arrears of rent‑‑Arrears of rent being far more than amount of security deposit, tenant, held, could not get benefit of such security deposit; particularly when specific plea about adjustment of such deposit was not taken by tenant earlier in his written statement or evidence.

1986 C L C 866; P L D 1980 S C 298; 1981 C L C 1060 and PLD 1976 S C 496 ref.

Muhammad Sadiq for Appellant

. Munir‑ur‑Rehman for Respondent.

Date of hearing: 14th May, 1986.

This first rent appeal has been filed against the order, dated 26‑10‑1982 of XIth Rent Controller, Karachi whereby he allowed the Rent Application No. 1257 of 1981 of the respondent and directed the appellant to hand over vacant possession of the premises to him within 30 days of the order.

Shaikh Abdul Hameed landlord, on 10‑3‑1981 filed a rent case under section 15(2)(i)(ii) of the Sind Rented Premises Ordinance, 1979, on the ground of default in payment of rent from December 1980 to February 1981. In the rent application it is also stated that on the expiry of 11 months the appellant did not vacate the premises as per terms of tenancy agreement. The appellant filed written statement in which he stated that respondent refused to issue receipts of the rent paid to him for the month of December 1980, January 1981 and February 1981. Appellant has also taken the plea that rent for the month of April 1981 was tendered by money order but respondent refused to receive the same.

Before the Rent Controller respondent Sh. Abdul Hameed, Khalid and Muhammad Ali Ahmed, Attorney of the appellant were examined. On the pleadings of the parties the Rent Controller framed only one issue about the default in payment of rent and came to the conclusion that default has been committed.

Mr. Muhammad Sadiq for the appellant contended that agreement terminated on 31st December 1980 thereafter, appellant has become statutory tenant and was entitled to deposit rent of December on 1st March, 1981. He has also argued that Rs.10,000 were with the respondent as deposit which is liable to be adjusted towards the rent. He has referred to the cases reported in P L D 1980 S C 298, 1981 C L C 1060 and 1986 C L C 866.

Mr. Munir‑ur‑Rehman appearing for the respondent contended that appellant committed wilful default in payment of 3 months of rent and he cannot get benefit of adjustment as the amount of deposit was not for the purpose of arrears of the rent. He has argued that appellant even committed default after filing of rent case till tentative rent order was passed. He has referred to the cases reported in P L D 1978 S C 220, P L D 1976 S C 496 and 1986 C L C 955.

The rate of rent and relationship is not disputed between the parties. The case of appellant in written statement is that he paid rent to the respondent which he received but did not issue the rent receipts.

Respondent was cross‑examined in which it was suggested that rent was tendered but landlord refused to receive the rent for the month of December 1981. This suggestion was replied in negative. The rent for the month of March 1981 was sent by money order thereafter there is no evidence to show that appellant made any attempt to tender the rent till tentative rent order was passed on 13‑1‑1982. In the tentative rent order appellant was directed to deposit the arrears from December 1980 to January 1982 i.e. for 14 months amounting to Rs.16,800. After the filing of the rent case appellant did not tender the rent in miscellaneous rent application or otherwise, till tentative rent order was passed. In case respondent refused to receive the rent of March, 1981, by money order it was incumbent upon the tenant to have deposited the rent in Court. The contention of the appellant is that he was not bound to pay rent without filing. rent case. I do not accept this arguments. It is the duty of every tenant to tender monthly rent to the landlord. In this case in case appellant considered statutory tenant A even the rent of December 1980 was due on 1st March, 1981, was not paid in terms. There is nothing on record to show that he actually paid the rent to the respondent. On the other hand, respondent has produced all the receipts which were being acknowledged from time to time, therefore, I have no hesitation to hold that appellant committed default and also continued to the defaulter till the tentative rent order was passed. In case of Mst. Amina Begum and others v. Mehar Ghulam Dastagir reported in P L D 1978 S C 220, it was held as under:‑‑

"In the light of the law already discussed above, the Rent Controller and the appellate authorities under the Ordinance, in exercise of the discretion vested in them, are not precluded to allow any bona fide amendments and take note of subsequent events in order to suitably mould the relief on the basis of the altered circumstances in order to avoid multiplicity of litigation and shorten the proceedings."

I also refer to a case of Muhammad Ali v. Mst. Madina Bano and 2 others reported in 1986 C L C 955 where it has been neld that tenant's failure to establish plea of having tendered rent at expiry of every month. The tenant is liable to be ejected.

Now I come to the adjustment. It is an admitted position that Rs.10,000 which are lying with the respondent as security deposit. The purpose for which this deposit was given is not shown in the agreement. Therefore, in view of case reported in 1986 C L C 866, this deposit can be adjusted towards the arrears of the rent. On this Mr. Muhammad Sadiq has also referred to the cases reported in P L D 1980 S C 298 and 1981 C L C 1060. But in this case the amount of arrears up to the passing of tentative rent order comes to Rs.16,800. In case adjustment is allowed in respect of that deposit even then the appellant cannot get benefit of deposit as arrears are more than Rs.10,000. Not only this but specific plea about adjustment has not been taken by the appellant in his written statement or evidence. On this Mr. Munir‑ur‑Rehman has referred to a case reported in P L D 1976 S C 496. This plea was not even taken before in the Rent Controller as appellant did not file objection td the application filed under section 16(1) of the Ordinance.

For the reasons stated above the appeal is dismissed. The Rent Controller has rightly allowed the rent case on the point of default.

In the alternate Mr. Sadiq contended that appellant is doing business in the premises, therefore, in case his appeal is not allowed. He may be allowed 12 months time to vacate the premises. This request has not been opposed by the learned counsel for the respondent. I allow 12 months time to the appellant to hand over vacant possession of the premises to the respondent subject payment of regular rent. In case he fails to hand over possession on 31‑5‑1987 the Rent Controller shall issue writ of possession.

H . B . T . Appeal dismissed.

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