TARIQ MAHMOOD Versus MUHAMMAD ASGHAR

1. By this appeal under Section 21 (1) of the Sindh Rented Premises Ordinance, 1979 the appellant has called in question the order dated 30‑10‑1979 passed by the learned First Senior Civil Judge and Controller Hyderabad in RA. No. 17 of 1984 directing him to hand over vacant possession of shop premises bearing Q.S. No. F/893, Station Road Gari Khata, Hyderabad to the respondent landlord within a period of 60 days of the impugned order.

2. The respondent filed the ejectment application on 15‑4‑1984 under section 15 of Sindh Rented Premises Ordinance, 1979 against the appellant on the grounds of non‑payment of monthly rent which is Rs.550 from April, 1983 and non‑payment of electricity charges both till the date of filing the ejectment application and on personal bona fide requirements of his son. It is averred by the respondent that notices including last notice dated 27‑8‑1983 were sent by him to the appellant calling upon him to make payment of arrears of rents and electric charges and to vacate the shop in question on personal bona fide requirement of the respondent.

3. The appellant in his reply statement has admitted his relationship as tenant with the respondent but it is contended by him that it had been the prevalent practice of the respondent that he would collect rent from the appellant in lump sum and therefore it cannot be said that he has committed default. It is contended by him that he had offered rent several times to the appellant before filing of the ejectment application, but the respondent avoided the same on one pretext or the other. It was under these circumstances that the rent was allowed to be accumulated against him, which he claims to be adjusted against his security deposit in the sum of Rs.25,000 lying with the resondent from the commencement of tenancy. It is denied by the appellant that the respondent requires the shop premises for personal use in good faith for his son. It is alleged that the son of the appellant is a minor and the appellant is in possession of another shop owned by him where he has been running the business. On pleadings of the parties the following issues were framed by the Rent Controller:

(1) Whether the opponent has committed default in payment of rent from April, 1983? So also not paid electricity charges?

(2) Whether the applicant requires the premises for the personal bona fide need of his son?

(3) What should the order be?"

4. It was urged by the learned counsel for appellant that so far as the so called personal bona fide requirement of the respondent is concerned in para 4 of the ejectment application he has merely stated that the shop is required by him for his personal use and for use of the son giving no particulars whatsoever, not even mentioning the name of his son, his age, educational qualifications or the nature of business to be carried on by him or his son at the shop. Similarly the only statement in examination‑in‑chief relating to the so called personal need is that the respondent in good faith requires the said shop for his personal need for the use of his son namely Abdul Aziz. In support appellant's counsel relied upon 1889 C L C 962. Some particulars however are found in cross‑examination of the respondent stating that his son is a student of IX Class and wants to seek further education and also to carry on business. Further it is stated that his son helps him in his business and it is incorrect that his son does not want to start his separate business. This is the entire evidence and does not inspire confidence as to the A personal bona fide requirement of the respondent landlord. Even otherwise the evidence of the respondents case cannot be allowed to be built on the material borrowed entirely from his cross‑examination by the appellant.

5. Next ground for ejectment was that the appellant had failed to pay rent from April, 1983 till the date of filing the ejectment application viz. 5‑1‑1984. It is admitted by the appellant that no rent for this period was paid by the appellant but it was contended by Mr. Hassan Mahmood Baig learned counsel for the appellant that there was no wilful default on the part of the respondent as it had been the prevalent practice between the parties that the respondent would collect rent in lump sum from the appellant and allow rent to be accumulated for many months. Reliance was placed on 1987 S C M R 1313 and 1988 S C M R 1383.

6. Learned counsel for the respondent, however, brought to my notice the admission made by the appellant in cross‑examination that he had been receiving the receipts of rent from respondent. It was contended by him that had there been any practice for payment of rent‑ in lump sum, the appellant could have produced the rent receipts which were dishonestly withheld by him as their production would have demolished his case on this plea. Further, reference was made by him to legal notice dated 27‑8‑1983 (Ex. 18) sent by the respondent to the appellant demanding arrears of rnt clearly rebutting the said contention raised by the appellant.

7. Learned counsel for the appellant then argued before us that even if there had been any default in the payment of rent, the appellant is entitled to adjustment thereof from the security deposit of Rs. 25,000 made by the appellant at the time of signing of first agreement dated 24th December, 1970, reference of which is found in para 2 of agreement dated 10‑6‑1977 (Ex. 17), as under:

8. The party No.2 (appellant) has already deposited Rs.25,000 with party No.1 (respondent) as security deposit vide agreement dated 24‑12‑1970. The party No.2 will be entitled to the refund of the aforesaid Rs.25,000 as and when he hands over vacant possession of his shop to party No.l (respondent). The party No.l had issued receipt of the same:'

9. In support of his contention, learned counsel for the appellant Mr. Hassan Mahmood Baig placed reliance on P L D 1980 S C 298 followed by the latest judgment reported in 1989 C L C 718 wherein it was held that where leese has expired, the arrears of rent in respect of the premises are liable to be adjusted against deposit made by the tenant with the landlord. However, it was frankly conceded by him that perhaps it was not brought to the notice of the learned High Court Judge in 1989 C L C 718 that the Supreme Court of Pakistan in recent past in Zarina Khawaja v. Agha Mahboob Shah reported in P L D 1988 S.C. 190 after considering the implications of various judgments of Supreme Court dealing with the question of continuance of the terms, of agreement of tenancy inter alia had held "that the previous tenancy arrangements between the parties will continue to operate notwithstanding the termination of the period and will govern the continuance .of tenancy as visualised‑in the definition of the tenant holding over. However, notwithstanding the continued operation of the terms of the agreement after the termination of the agreement; by process of law as aforesaid, its provisions whenever they are in conflict with the rent law, shall not be operative."

10. "Thus, it can safely be said that the rent laws permit all covenants in agreements, alive or expired which are permissible under the general law and not inconsistent with or repugnant to that special law; and enforce the same accordingly whenever it is so required under that law. In addition, they also remain operative for other purposes permitted by general law. The fourth question is answered in tire negative

11. The answer to the fifth question has already been rendered. A provision in the expired agreement regarding security deposit for protecting the landlords' interest, if otherwise lawful under the general law, cannot be varied under"ihe rent law and has to be applied for the purpose provided in the agreement and not otherwise.

12. The next question (sixth) is to be answered in the light of the foregoing discussion, in the negative. The security deposit in this case is to be applied by the landlord, according to the terms quoted ealier, to compensate himself at the time of the tenant handing over possession to him for unpaid rent and or damages caused by the tenant to the property at anytime. Its application by the High Court for absolving the tenant respondent from liability to make a deposit under section 16 (2) arid old 13(3) is impermissible and unlawful. The default remained intact notwithstanding the security deposit. It is clarified that the ‑covenant in each agreement as to security will be construed according to the agreement itself.

13. The same would have been the result if the default would have been in the payment of rent to the landlord and not a deposit under section 16 (2) or, 13(6) of the relevant laws. The security deposit will be applied in the manner provided in the agreement and not otherwise. In this case it could not be applied to adjust the general default alleged against the respondent; because the tenancy 'agreement of the parties did not permit it."

14. It will thus be seen that the terms of agreement of tenancy had expired and the appellant becomes entitled to the security deposit of Rs.25,000 but upon handing over the vacant possession of the shop. He cannot claim this amount from the respondent while holding over the demised premises. The question of adjustment of arrears of rent against the said security deposit therefore does not B arise and hence his plea for adjustment cannot be accepted.

15. As a result, this appeal fails and is hereby dismissed with no order as to costs. The appellant is directed to', vacate and hand over the shop to the respondent within 60 days hereof.

16. A.A./T‑90/K Appeal dismissed.