NISAR AHMAD KHAN Versus MUHAMMAD SHARIF

1. In this appeal the appellant Nisar Ahmed has impugned the order of Vth Senior Civil Judge and Rent Controller, Karachi, dated 13‑3‑198. whereby ejectment application filed by respondent Muhammad Sharif was allowed and the appellant was directed to deliver the vacant possession of the demised premises to the said respondent within 45 days of the order.

2. Briefly stated the facts of the case are that appellant is tenant in respect of the disputed premises bearing No. LS‑30, Shah Faisal Colony, Block No. 2, Karachi which is owned by respondent. On appellant's failure to pay rent from July 1981 the respondent file ejectment application against him on 19‑12‑1981. The application was resisted by the appellant who took the plea that an amount of Rs.6,00 which he had deposited with the respondent as advance was lying with him and arrears of rent due to him could be adjusted from the said amount. On the basis of evidence adduced by the parties the learned Rent Controller passed the impugned order allowing ejectment application of the respondent and directing the appellant to vacate the dispute premises within 45 days of the order.

3. After hearing the arguments of the learned counsel for the parties the appeal was allowed with no order as to costs by short order, date 24‑12‑1985. Following are reasons in support of the short order. I appears that ejectment application is based on the ground of default ii payment of rent and electricity charges since July, 1981. The defence put up by the appellant /tenant is that he had paid a sum of Rs.6,00 as advance rent to the respondent and the said amount is still with the respondent who could adjust the rent arrears due to him from that amount In other words it is not denied by the appellant that he ha not paid any rent for the disputed period. The learned counsel for the parties,, were, however, at variance on the point whether the amount deposited with the respondent /landlord was adjustable towards payment of rent arrears. Although the learned counsel for the appellant was of the view that such amount could be adjusted towards rent arrears yet the learned counsel for the respondent did not subscribe to that view. 'Several authorities were cited by the learned counsel for the parties in support of their respective view point.

4. The first case cited is of Mirza Abdul Aziz Baig v. Mushtaq Ahmed Sheikh 1980 S C M R 834 wherein it was held:‑

5. "We pointed out that the appellant had deposited one month's rent in advance and as rightly held by the learned Judge, this advance was adjustable against the rent due from him. But, the appellant had also deposited the sum of Rs.825. However, as this deposit was by way of security against the appellant's liability for damage, if any, to the demised premises, we agree with the view of the learned Judge that this deposit of Rs.825 was not adjustable against the rent due from the appellant."

6. Another case relied upon in this connection is of Muhammad Yousuf v. Abdullah P L D 1980 S C 298 in which provision for security deposit was contained in the lease agreement wherein it was stated that the deposit of Rs.1,000 will be confiscated by the lesser in case lessee does not pay rent for consecutive three months. No damage was alleged to have been caused to demised premises at the time of expiry of the lease. It was held that the lessee's deposit was liable to be adjusted against rent due from him.

7. The third case is of Karamat Hussain v. Kazi Ali Muhammad 1986 S C M R 441 in which it was held:‑

8. "Now, in the present case, the High Court has found that at the time of the filing of the ejectment application against the respondent a sum of Rs.140 was still lying in deposit with the petitioner, and a further amount had also been paid by the tenant on 2‑6‑1964 by means of a cheque which was accepted by the petitioner. These circumstances showed that the default if any, committed by the tenant was merely of a technical nature. This was accordingly a fit case in which the discretion conferred by law should have been exercised in favour of the tenant, and was rightly so exercised by the High Court."

9. The ratio of the above reported cases is that if there is a stipulation in the agreement between the parties that the amount deposited by the tenant with the landlord at the time of commencement of the tenancy will be used for particular purpose. The said amount will be used only for that purpose. If the amount is intended as a security against any possible damage to the property such amount cannot be adjusted towards rent. If on the other hand the amount deposited by the tenant is to remain with the landlord until conclusion of the tenancy and will revert to the tenant subject to any dues payable by him, the rent arrears outstanding against the tenant can be adjusted from that amount.

10. In the instant case the agreement shows that a sum of Rs.6,000 deposited by the tenant with the landlord was intended to remain with the latter until vacating of the rented house when the amount found due from the tenant would be adjusted from the said deposited amount and the balance would be returned to the tenant. It is an admitted position that the agreement was made on 13‑9‑1979 for a period of eleven months. Since the agreement was not extended beyond that said date the amount deposited in pursuance of the agreement was obviously returnable by the respondent /landlord to the appellant at the expiry of the agreement. However, the same was not returned until the filing of ejectment application. As. stated above, the respondent's allegations are that the appellant has made default in payment of rent which is payable at the rate of Rs.900 per month since July, 1981. Thus, by the time the ejectment application was filed the appellant was in arrears of rent for five months which, at the rate of Rs.900 per month came to Rs.4,500. This amount could easily be adjusted from sum of Rs.6,000 lying with the respondent /landlord. Therefore, even if the appellant had not paid any rent for the period of default, he could not be held to have made any default in payment of the rent. As such he is not liable to eviction on the ground of any such default. Accordingly as stated above the appeal was allowed with no order as to costs.

11. A . A . Appeal allowed