Miss Page No (PLP)

1985 C L C 2066 ref. M. Ashraf Bhatti for Appellants. Shahabuddin Memon for Respondents. Date of hearing: 17th November, 1985. This is a first, rent appeal against the order of the learned Xth Senior Civil Judge, and Rent Controller, Karachi, dated 6-12-1982 whereby he ordered the ejectment of the appellant. The brief facts leading to this appeal are that, the respondent, who is landlord in respect of House No. 248/4, first floor Bahadarabad had given it on rent to the appellant on the monthly rent to Rs.115 per month through tenancy agreement, dated 31-12-1973. The respondent filed ejectment application on the ground, that appellant had failed to -pay the rent for 16 months before the institution of the Rent Application on 15th August, 1977. The appellant resisted the application denying all the allegations. He claimed to be tenant of Abdul Qadeer, whom he claimed to have paid the rent and also to have deposited it in his name in Miscellaneous Rent Application 2823/77. The learned Rent Controller has found that the appellant had made default in payment of rent for the months from May to July, 1977. It is contended by the learned counsel for the appellant, that admittedly 150 were lying as security deposit with the respondent under the tenancy agreement, which expired long before the alleged default. He argued, that this amount cannot be lawfully retained by the respondent and be adjusted towards the rent of May, 1977. He has relied upon P L D 1980 S C 298. in support of his contention. He further argued, that rent for the month of June, 1977 would become payable on Ist September, 1977, whereas the rent petition was filed on 15-8-1977 viz. before the cause of action accrued to the respondent. He further contended, that in fact the appellant had been depositing the rent in Miscellaneous Rent Application No. 2823/77 in the name of Abdul Qadeer, who admittedly used to collect the rent on behalf of the respondent. It is further contended by the learned counsel for the appellant, that after the institution of the Rent Application, the respondent had admittedly recovered the rent for the month of February, 1978 to 31st January, 1979 through Distress Warrants No. 57/79. He argued that acceptance of rent by the landlord after the institution of the ejectment application would amount to waiver of his right to seek ejectment on the ground of default and would also amount to creation of new tenancy. The learned counsel for the respondent contended that the appellant is a habitual defaulter and again and again he had to obtain arrears of rent from the appellant by Distress Warrants. He further contended that realisation of rent by the landlord through Distress Warrants, even after the institution of the application, would amount to waiver of his right and as such no fresh tenancy was created between the parties. The learned counsel for the respondent has relied upon 1985 C L C 2066. The contention of the learned counsel for the appellant, that the amount of security deposit was to be adjusted towards the arrears of rent appears to be correct. In P L D 1980 S C

298. Their Lordships have observed that after expiry of the tenancy agreement, the security deposit could be adjusted towards the arrears of rent, and this view is followed in number of other cases. In recent case-decided by learned Single Judge of this Court reported in Mst. Saeeda Khatoon v. Muhammad Ahmad Latifi 1985 C L C 1392 it is held "on expiry of period of 11 months (period shown in the tenancy agreement) security deposit by tenant with landlord is liable to be refunded. Position of landlord becomes that of a debtor for purpose of payment of said amount and rent due to him could be adjusted against amount of security." Therefore the appellant could not be held to have committted any default with regards to rent for the month of May, 1977. As held by their Lordships in P L D 1980 S C 298 "the words 'agreement o tenancy' used in section 13(2) (i) of the Sind Rent Restriction Ordinance, 1959' means agreement in force and not agreement expired or dead The tenancy agreement entered into between the parties in 1973 for 11 months expired long before the alleged default. As such the appellant could pay the rent within 60 days after the rent becomes due to escape the consequences of default. The rent for the month of June thus could be paid on or before Ist September, 1977 but the respondent filed eviction application prior to this date viz. on 15-8-1977. Therefore the appellant also cannot be considered to have committed default in payment of July, 1977 before the institution of the rent application. However, the respondent in his application claimed, that the appellant has not paid him rent for 16 months prior to the institution of the rent case. Admittedly the rent for the 12 months viz. May, 1976 to 30th April, 1977 was realised through Distress Warrants No. 160/77. Exh. 1/3 produced by the respondent shows that this distress warrant 160/77 was disposed of by compromise by the learned Judge of Small Causes Court vide his order, dated 7-8-1977 viz. prior to the institution of the rent application on 15-8-1977. The learned counsel for the respondent has relied upon 1985 CLC 2066 wherein the admission of the tenants for the payment of rent for one year in Distress Warrant proceeding was considered sufficient to hold the opponent as defaulter in payment of rent. The position that emerges is that at the time when the respondent has filed the application for ejectment, the appellant had not paid rent for 3 months only as rightly held by the learned Rent Controller. The rent uptil April, 1977 had been realised by the respondent by compromising the Distress Warrants Application 160/77. As already pointed the rent for the month of May, 1977 was adjustable from the security lying with the respondent, whereas the rent for the month of June could be paid by the appellant before 1st September, 1977 after which he could be considered as defaulter liable to eviction, but rent application was filed on 15th August, viz. before the cause of action accrued to the respondent. 'The case reported in 1985 C L C 2066 is distinguishable from the present case, as in that case Distress Warrants was issued for rent due after the institution of rent application and that fact was considered as corroboration of the allegation of the landlord, that the tenant had not paid the rent for the period of default before the institution of Rent Application. However, the view taken in that case repells the contention of the learned counsel for the appellant, that acceptance of rent through Distress Warrants after the institution of rent application amounts to waiver of the right of ejectment and creates new tenancy. Be as it may, under the circumstances the appellant cannot be considered to have committed default in payment of rent for the months of May to July, 1977. As such the appeal is allowed and the impugned order of the learned Rent Controller is set aside. The parties to bear their own costs. H.B.T. Appeal allowed.