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Second Appeal from Original Order No. 241 of 1972, decided on 10th February, 1980.

‑‑S. 13(6)‑‑Tentative order for deposit of arrears of rent‑‑Fixation of amount‑‑Duty of Rent Controller‑‑Passing order under S.13(6) regarding deposit of arrears of rent is statutory duty of Rent Controller‑‑Rent Controller while passing such order, held, would not be bound to hold detailed inquiry, but would have to fix amount of arrears tentatively on basis of material placed before him by parties.

‑‑‑S. 130)‑‑Security deposit‑‑ Adjustability against arrears of rent‑ Amount deposited as security by tenant with landlord for the performance of conditions of tenancy, held, could not be adjusted against arrears of rent particularly when no plea of such adjustment was taken by tenant at time of passing of tentative rent order for deposit of arrears of rent under S.13(6)

Mst. Zubaidah Begum v. Mirza Mumtaz Hussain P L D 1975 Lah. 1504; Syed Shafiuddin v. Abdul Hakim Khan P L D 1978 Kar. 149 and West Pakistan Co‑operative Consumer Society, Lahore v . Messrs Mian Muhammad Farooq & Bros. and another P L D 1978 Lah. 28 ref.

Raja Muhammad Muzaffar for Appellant.

Nemo for Respondent No.l.

Hafiz Muhammad Yousaf for Respondents Nos. 2 to 4.

Date of haring: 10th February, 1980.

The respondent filed a petition for ejectment of the appellant from the shop in dispute on the ground of bona fide personal need and default in the payment of rent for the month of December, 1970. The appellant resisted the petition inter alia on the ground that he had deposited Rs.4,000 as security with the respondent; without its refund the application was not maintainable and that he was entitled either to the refund of this amount or adjustment thereof against the rent.

2. On 18‑9‑1971 the learned Rent Controller passed an order under section 13(6) of the Rent Restriction Ordinance, directing the appellant to deposit in the Court before 30‑9‑1971 a sum of Rs.840 as rent for the period from March 1971 to September, 1971, and so also the future rent at the rate of Rs.120 per month before 15th of each month.

3. The appellant failed to comply with the order, dated 15‑1‑1972 moved an application before the learned Rent Controller for extension of time on the ground of demonetization of currency notes and declaration of emergency in the country. Earlier on 4‑12‑1971, the learned Rent Controller recorded the statement of both the parties. In his statement the appellant submitted that he had deposited Rs.4,000 as security with the respondent and that he could adjust this amount against the rent. The respondent in his statement admitted receipt of Rs.4,000 but asserted that this amount was lying with him as security; if the appellant damaged the shop or failed to comply with the conditions of tenancy the amount was liable to be appropriated.

4. The learned Rent Controller held that under section 13(6) of the Ordinance, he could not extend the time unless it was proved that the appellant's failure to comply with the order, dated 18‑9‑1971 was occasioned by reasons beyond his control. In his opinion the declaration of emergency could not be considered a valid ground for enlargement of time. He was also of the view that the grounds put forth by the appellant were merely cooked up to cover his negligence.

It appears that at the arguments stage the appellant also claimed that the amount which he was required to deposit in the Court could be adjusted by him against the deposit of Rs.4,000. The learned Rent Controller did not accept this contention and by his order, dated 27‑3‑1972 struck off the appellant's defence.

5. In appeal the learned District Judge maintained that the appellant could not have been prevented by the declaration of emergency to deposit the rent in the Court. It appears that an objection was also raised before him that the appellant having already paid a sum of Rs.40,000 to the respondent, in advance as security, he could not be directed to deposit the arrears of rent. The learned First Appellate Court turned down this plea as well and held that this point should have been raised by the appellant before the Rent Controller at the time of passing of the order under section 13(6). The learned District Judge was also influenced by the delay in filing the application by the appellant for extension of time. Accordingly, he dismissed the appeal on 8‑7‑1972. The unsuccessful tenant has now come up in second appeal.

6. The learned counsel for the appellant argued that the appellant specifically raised a plea in the written statement, claiming the right to adjust the sum of Rs.4,000 towards the rents before passing the order, dated 18‑9‑1971 it was obligatory for the learned Rent Controller to have given a finding on this point. In his submission, in the circumstances of the case, the learned Rent Controller could not have passed the order under section 13(6). In any case, it was submitted, that the appellant held the sum of Rs.4,000 to his credit and therefore, the rent which he was required to deposit in the Court, could have been justifiably adjusted by him against this amount, and that as such there was no default in complying with the order, dated 18‑9‑1971. In support of his submissions he relied on Mian Muhammad Abdullah v. Sheikh Nawab Din 1971 S C M R 336 and West Pakistan Co‑operative Consumer Society, Lahore v. Messrs Mian Muhammad Farooq & Bros. and another P L D 1978 Lah. 28.

7. On the other hand, on behalf of the respondent, it was argued that the appellant neither raised any claim as to his right to make adjustment of deposit against the arrear of rent, at the time of passing of the order under section 13(6), nor in the application for enlargement of time. It was contended that the plea now raised by the appellant was merely an afterthought. The respondent's learned counsel further argued that the amount in question having been deposited by the appellant with the respondent as security for due performance of the conditions of the tenancy, could not be adjusted against the arrears of the rent and was liable to be forfeited in case the appellant failed to comply with the terms and conditions of the tenancy. For his these submissions he placed reliance on Mst. Zubaidah Begum v. Mirza Mumtaz Hussain P L D 1975 Lah. 1504 and Syed Shafiuddin v . Abdul Hakim Khan P L D 1978 Kar. 149.

8. I have examined the record and considered the submissions made by the learned counsel for the parties. Though in the ejectment petition only the default for the month of December, 1970 was alleged and it was averred that the appellant was bound to pay the rent before 4th December, yet when the order under section 13(6) was passed it was found that the appellant had deposited the rent up to February, 1971 in the Court and that only the rent for the period from 21‑3‑1971 to September, 1971 was then, outstanding against him. He was, therefore, directed to deposit in the Court the rent for this period as well as the future rent. It does not transpire from the record that the appellant agitated against the propriety, of the order, dated 18‑9‑1971 before the learned Rent Controller. He neither disputed his liability as to the outstanding rent nor seemingly he claimed any adjustment towards the deposit made by him with the respondent. ‑No doubt a plea was raised by the appellant in the written statement, but it was denied by the respondent in his replication. Presumably for this reason the appellant did not press only such claim when the order under section 13(6) was passed by the Rent Controller.

9. It is to be noticed that the making of an order by the Rent Controller under section 13(6) regarding the deposit of arrears of rent, on the very first day of hearing or as soon as possible after that date but before framing the issues, is his statutory duty. While passing an order under section 13(6) the Rent Controller was not bound to hold a detailed enquiry and had to fix the amount of the arrears tentatively on the basis of the material placed before him by the parties. The appellant did not produce the rent deed or any other document evidencing the payment of Rs.4,000 to the respondent and the conditions governing the application of this amount. The only documents thus placed by him before the learned Rent Controller were the receipts regarding deposit of rent in the Court, which were duly considered. It is noteworthy that the statement of the parties was recorded on 4‑12‑1971 whereas the order under section 13(6) was passed on 18‑9‑1971. There was thus whatsoever no material before the learned Rent Controller in support r of the appellant's claim, when he passed the order under section 13(6). In these circumstances, there is no merit in the attack launched by the learned counsel on the validity of the order, dated 18‑9‑1971.

10. As regards the adjustment of rupees four thousands towards the arrears of rent, which the appellant has to deposit in the court in pursuance of the order, dated 18‑9‑1971, in, his application, dated 15‑1‑1972 he did not put up any such claim. The demonetization of currency notes and the declaration of emergency, were the only grounds pleaded by him, for condonation of his lapse and extension of time. The voluntary deposit of arrears of rent, by the appellant, in the Court also militates against his this claim. Furthermore, the application for enlargement of time was filed by him after the delay of 31 months when he had already become a defaulter not only in depositing the lump sum of Rs.840 but also in respect of the rent of another four months from October, 1971 to January, 1972. It was only when the appellant's default had become indefensible that the thought of claiming adjustment against the deposit. His this conduct also whittles down his claim.

11. As observed above the appellant has not produced the rent‑deed or any other document in support of his right to adjust the arrears of rent towards the deposit. In his statement, dated 4‑12‑1971 the appellant himself categorized this amount as security. On the other hand the respondent's stand was that this amount was a security for due performance of conditions of the tenancy by the appellant. There was thus no conflict between the parties on the issue that the amount was deposited as security. The security by its very nature is the deposit to ensure specific performance of the covenants of an agreement. It was for the appellant to prove that he could adjust the amount against arrears of rent, but he failed to establish it. Even otherwise his claim of adjustment is unfounded. The respondent's version that the deposit was to serve as security to enforce compliance of the terms and conditions by the tenancy, was accepted by the learned two Courts below, and I have no reason to differ with them. The proposition that an amount deposited as security by a tenant with the landlord for due performance of the conditions of tenancy, is not adjustable against the arrears of rent, finds support from Mst. 2ubaidah Begum v. Mirza Mumtaz Hussain P L D 1975 Lah. 1504 which was followed in Syed Shafiuddin v. Abdul Hakim Khan P L D 1978 Kar. 149. In Mian Muhammad Abdullah v. Sheikh Nawab Din 1971 S C M R 336 cited by the appellant's learned counsel the tenant had specifically pleaded that he sent Rs.660 by cheque as rent, to the landlord. The latter contended that it was re‑payment of loan. The High Court remanded the case to the Rent Controller, as he had failed to determine the nature of the amount, which was a controversy between the parties. In the instant case, both the parties agreed that the amount in question was in the nature of security. The appellant claimed that it could be adjusted towards the arrears of rent, whereas the case of the respondent was that such adjustment could not be made. The appellant's version was discarded by both the Courts below. This precedent, has no applicability to the facts of the instant case. Similarly, the ruling in West Pakistan Co‑operative Consumers Society, Lahore v. Messrs Mian Muhammad Farooq & Bros. and another P L D 1978 Lah. 28 rests on a different set of facts and is of no help to the appellant.

12. As a result of this discussion, this appeal is found without any merit and dismissed with costs. The appellant shall hand over the vacant possession of the demised property to the respondent within two months.

H . B . T . Appeal dismissed

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