ARSHAD JAMIL Versus SHAMIM AHMAD
The facts are that the appellants filed the application for ejectment of the respondent /tenant from the disputed premises mainly on the grounds of default in payment of rent from January, 1980 to March, 1980 and the removal of Water Pumping Machine "Crompton" without permission of the landlord as stated in paragraphs 5 and 6 of the application for ejectment moved by the appellants. The rate of rent payable is Rs.500 per month and additionally Rs.10 per month towards water, electricity, gas and conservancy charges.
2. The respondent /tenant filed the objections contesting the matter. The rate of rent is admitted. However, it is claimed that the respondent had spent a sum of Rs.874 on white‑wash and Rs.885 in replacement of water pumping machine. It is further claimed by the respondent that a sum of Rs.3,000 is lying with the appellants as a deposit which could be adjusted against the rent due, if any.
3. On the above pleading of the parties, the Rent Controller framed the following issues:‑
"(1) Whether the alleged practice of payment of accumulated rent in lump sum is in accordance with law ?
(2) Whether the opponent is liable to be ejected on ground of default ?
(3) What would the order be ?
4. Issue No. l was answered in negative in favour of the appellants. However, the Issue No.2 was answered against the appellants and thus their application for ejectment was dismissed.
5. 1 have heard the learned counsel for the parties. The rate of rent is admitted and also the fact that Rs.3,000 were paid by the respondent which are lying as a deposit with the appellants.
6. Mr. Muhammad lkram Siddiqui, the learned counsel for the appellants, has argued that admittedly the rent for the months of January to March 1980 was not paid. He has further argued that the adjustment of the alleged expenditure incurred by the respondent on white‑wash and change of water machine cannot be allowed as he had not sought the permission of the landlord.
7. Mr. M.M. Mahmudi, learned counsel for the respondent, has submitted that he is not seeking the adjustment of the expenditure incurred by the respondent on white‑wash and change of water pumping machine. However, he has submited that the affidavit‑in‑evidence filed by the appellants in paragraph 4 shows that during the 12 months from November 1978 to October, 1979, they received a sum of Rs.7,040 towards rent, whereas the rent and other charges at Rs.510 per month would come to Rs.6,120 and thus the appellants had received an excess amount of Rs.920 which has to be adjusted against rent of January 1980. The appellants in the same paragraph have admitted that the rent for November and December 1979 had been paid separately through money order. From this Mr. M.M. Mahmudi has argued that thus no default has been committed by the respondent as far as the rent for the month of January, 1980 is concerned. Mr. Mahmudi has further submitted that in this case the original rent agreement had since expired, the respondent continued as statutory tenant and, 11 therefore, the ejectment application for the default in payment of. rent could be filed only after a period of 60 days has lapsed from the date the rent has become due and that will be on 30‑4‑1980, whereas the present application is filed on 20‑4‑1980 and is, therefore, premature.
8. The other contention of Mr. M.M. Mahmudi, the learned counsel for the respondent, is that admittedly a sum of Rs.3,000 was paid to the appellants by way of deposit and that after expiry of the rent agreement which was executed on 31‑8‑1975 for only nine months, the said amount of deposit becomes a debt refundable to the respondent. He has contended that the said amount of Rs.3,000 is much more than the arrears of rent claimed and the same could be adjusted against the said amount. He has relied on the cases of Muhammad Yousaf v. Abdullah PLD 1980 SC 298, Mst. Ghulam Sakina v. Khaliq Bar! 1984 CLC 71 and Munawwar Begum and others v. Mst. Alqab Begum 1983 CLC 1548.
9. In the first case, it has been held:‑
"As, in our opinion, the rights and liabilities of the appellant, in the instant case, are governed exclusively by the said Ordinance, the question of the amount of rent due from him has to be determined in accordance with the provisions of clause (i) of subsection (2) of section 13 of the said Ordinance. Under this clause, a tenant has to pay the rent due from him 'within fifteen days of the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement within sixty days from the period for which the rent is payable'. The words 'the agreement of tenancy' mean an agreement which is in force, and not an agreement which has expired and is dead. Therefore, in the instant case, when the respondent filed his eviction application on the 9th of May, 1970, the appellant was in default in the payment of rent for the month of December 1969, and for the months of January and February 1970. The rent thus due from him was Rs.600. But, as against this, the respondent had failed to return to the appellant the 'security deposit' of Rs.1,000 despite the expiry of the lease agreement. The respondent was no doubt entitled to deduct the electricity charges before returning this amount, but even after deducting these charges, the amount lying with him far exceeded Rs.600.
It is true that the appellant had not demanded the return of his deposit on the expiry of his lease, and further as the debtor, it was for him to find the creditor, therefore, he should have informed the respondent to adjust the arrears of rent against his deposit with the respondent. This he did not do, but even on the footing that this resulted in a failure to pay rent within the meaning of section 13 of the said Ordinance, it was a very technical default and it would reduce the law to a farce if the respondent was evicted for being in debt to the respondent (on account of his failure to pay rent) when in fact the overall position was that the respondent was in debt to the appellant. Therefore, there could not be a more appropriate case for the exercise of the Court's discretion under section 13 of the said Ordinance in the tenant's favour, to Accordingly, even on the footing that the appellant was in technical default in the payment of rent on the date of the eviction application filed against him, we have no hesitation in exercising our discretion in his favour. We, therefore, set aside the eviction order passed by the three Courts below and allow the appellant's appeal. However, as the appeal turned on a question of law which had not been decided by this Court, we leave the parties to bear their own costs.
In the second case, Mr. Sajjad Ali Shah, J., has held:‑ "In the instant case, landlady has claimed arrears of rent from the tenant for 12 months @ Rs.160 per month which comes to Rs.1,920. The security deposit is of Rs.3,000 which is lying with the landlady. Amount of security deposit is larger than the amount of arrears of rent claimed by the landlady. Even after deducting this amount still the landlady will be indebted to the tenant for return of Rs.1,080. In the circumstances, I hold that the landlady cannot claim ejectment on the ground of default for the reason that arrears of rent can be adjusted against the amount of security lying with the landlady'. "
In the third case, Mr. Nasir Aslam Zahid, J., has held:‑
In my view the facts in the aforesaid Supreme Court case are similar to the instant case and as it is admitted that an amount of Rs.1,125 is lying in deposit with the respondent, if that amount is adjusted there would be no default at all. In view of the Supreme Court judgment, after the expiry of the lease period, the tenant became a statutory tenant and no longer remained a contractual tenant."
10. In view of the above decisions, the Rent Controller has rightly held that the amount of arrears could be adjusted against the security deposit. I will, therefore, maintain the findings of the Rent Controller on this issue.
11. Mr. Muhammad Ikram Siddiqui has further argued that the Rent Controller has ignored to " deal with the point of white‑wash and change of water pumping machine which was done by the respondent without any permission of the appellants. It may be pointed out that the appellants have not stated in their application as to what was the effect of the same. They have not pleaded that the said acts of the respondent have materially impaired the value or utility of the premises nor any evidence has been brought on record to prove the same. D The learned counsel for the respondent has argued that no permission was needed for the same as the condition No.5 of the Agreement provided that "The tenant will make minor repairing from his own expenses if or at any time needed by him in the premises". This condition in the agreement goes to support his contention specially when he is not claiming any adjustment or refund of the expenses incurred by him.
11. The up shot of the above discussion is that the findings of the Rent Controller are maintained and the appeal is dismissed. However, there will be no order as to costs.
H.B.T./A‑489/K Appeal dismissed.