1986 PLP 2524 (CLC)

‑‑‑Ss. 15 & 21‑‑Default in payment of rent‑‑A lump sum amount was held by landlord as deposit on date of institution of rent case‑‑Agreement of tenancy not renewed after expiry and tenant becoming entitled to refund of said amount‑‑If deposit amount was adjusted towards rent, tenant was not defaulter on date of institution of rent case‑‑Order of ejectement set aside. Munawar Abbas for Appellant. Hazikul Khair for Respondents. Dates of hearing: 19th and 24th December, 1985. i' This appeal under section 21 of the Sind Rented Premises Ordinance of 1979 is filed by the appellant/ tenant against order of the ejectment passed by the Rent Controller on 27‑10‑1984, in rent case No. 5167 of 1983 instituted by the respondent on the ground of default in payment of rent. Rent application was filed on 29‑11‑1983, by the respondent alleging default in payment of rent from May ,to November, 1983. In the written statement the appellant raised two fold contentions. It was firstly contended that the rent for the above period was already paid by the appellant to the landlord/ respondent who issued no receipts for the same on account of issuance of a prohibitory order by the Income‑tax authorities directing the tenant not to make payment of rent to the respondent. In the alternative it. was contended that the rent agreement between the parties had expired and thereafter it was not renewed by the parties and as such the appellant became entitled to the refund/ adjustment of Rs.5,000 which was lying with the respondent as 'deposit' after the expiry of rent agreement but the sum was not refunded by the respondent. It was accordingly contended that if the said 'deposit' of Rs.5,000 is adjusted towards the alleged arrears of rent there was no default on the part of appellant on the date of institution of rent case. Learned Rent Controller after hearing the parties came to the conclusion that the plea of the appellant regarding non‑issuance of rent receipts for the period from May, 19 to October, 1983 was not believable and he accordingly held the appellant defaulter in payment of rent. The Rent Controller, however, did not give any finding on the alternate contention of appellant that after the expiry of agreement of tenancy he was entitled to the refund /adjustment of amount held by the respondent as 'deposit' and as such there was no default on his part. In this appeal the learned counsel for the appellant has repeated the above noted two contentions raised before the Rent Controller. It is contended by the learned counsel for the appellant that there was enough evidence on record to show that the appellant had paid rent to respondent for, the months of May to October, 1983 but he did not issue rent receipts for this period as there was a prohibitory order issued by the Income‑tax authorities directing the tenants not to pay rent to respondent and in case rent receipts issued by the respondent it would have amounted to contravention of tile order of Income‑tax authorities. It is further contended by the learned counsel that it is an admitted position that for the period from May to October, 1983 the appellant did pay electric charges which amounted to about Rs.11,003 and as such there was no valid reason for him to withheld the rent for that period which amounted to only Rs.6,

000. The contention of the learned counsel did not impress me. The appellant in paragraph 4 of his written statement only asserted that the rent receipts from May to October, 1983 were not issued by the respondent after receiving rent for these months. It is nowhere alleged that for the period prior to May 1983 no rent receipts were issued to him by the respondent. The respondent in his evidence alleged that he always issued rent receipt for the rent paid by the appellant. Alongwith his affidavit of evidence the appellant produced before the Rent Controller rent receipt, dated 3‑4‑1983 which relates to the month of February, 1983. He however, did not produce rent receipts for the months of March and April, 1983 which must have been paid in the following months. In order to cover up this deficiency he alleged in his affidavit of evidence that from March, 1983 onwards no rent receipt were issued to him. This was an obvious improvement as no such plea is raised in written statement. Apart from it, it was admitted by the appellant in his cross‑examination that no prohibitory order was served on him by the Income‑tax authorities although such order was served on other tenants. The alleged prohibitory order has not been produced on record. The Rent Controller in these circumstances rightly disbelieved the contention of the appellant that no rent receipts were issued by the landlord for !he period from May 1983 to October, 1983 although he received the rent for these months. The Rent Controller however, totally ignored the alternate contention of appellant raised in paragraph 8 of the written statement wherein he categorically asserted that he was entitled to the adjustment of the sum of Rs.5,000 which was deposited with landlord /respondent as 'deposit' and if this sum was adjusted towards rent there was no default in payment of rent. The respondent /landlord in his cross‑examination admitted that the sum of RS.5,000 was lying deposited with him intact which was paid to him under the agreement of tenancy. Learned counsel for the appellant contended that the agreement of tenancy which was executed between the parties on 6th December, 1978 came to an end in 1981 and thereafter no further agreement of tenancy was executed between the parties and, therefore, the appellant became statutory tenant after expiry of the tenancy agreement and was entitled to the refund of deposit of Rs.5,000 which was illegally withheld by the landlord/ respondent. The appellant in cross‑examination of respondent produced two agreements of tenancies as Exhs. 1/1 and 1/2 which were admitted and respondent further stated that the appellant is in possession of the disputed premises as tenant since 1976. It was also admitted that after expiry of Exhs. 1/1 and 1/2 the agreement was not renewed. The last agreement executed between the parties is, dated 6‑12‑1978 (Exh. 1/2). It provides that the tenancy shall be deemed to have commenced from 1‑1‑1979 and it will expire after 60 months of continued tenancy from the date of occupation. Paragraph two of the preamble of the agreement (Exh. 1/2) reads as under:‑ "Whereas the party of the first part is absolute owner of plot No. A‑36, S.I.T.E. is willing to let out the premises on rent and the second party is ready to take on rent on the same conditions and terms already executed in the agreement of Tenancy, dated 25th day of February, 1976 between the parties, which terms and conditions are as follows":‑ The above preamble of the agreement of tenancy read with paragraph 9 of the agreement and the admission of respondent, in cross‑examination that the appellant is in possession of the premises since 1976 makes it clear that the parties completed that the agreement (Exh. 1/2) shall expire in 1981 and since it is an admitted position that this agreement was not renewed after its expiry, the appellant was entitled to the refund of the deposit in view of the pronouncement A of Supreme Court the case of Muhammad Yousuf v. Abdullah P L D 1980 S C

298. The learned counsel for the respondent however, contended that the agreement of tenancy, dated 6th December 1978 was valid for a period of 60 months from the date of its execution and, therefore, on 29th November, 1983 when the ejectment application was filed in Court this agreement was in full force and, therefore, appellant could not claim refund of the deposit made under the said agreement. I am unable to accept the contention of the learned counsel in view of the above discussion. I will not consider whether there was any default on the part of appellant after allowing adjustment of 88.5,000 which was held by the respondent as deposit on the date of institution of rent case. Rent application was instituted on 29th November, 1983. Under the tenancy agreement (Exh. 1/2) the rent was payable on the 7th of each month. I have already held that the agreement of tenancy expired in the year 1981 and thereafter it was not renewed. Therefore, on the date of institution of rent case the appellant was a statutory tenant of the premises. If the amount of Rs.5,000 is adjusted towards rent then on 29‑11‑1983 when the rent case was filed the appellant was in arrears of rent for October only which he could pay by 30‑12‑1983. It is, therefore, clear that on the date of institution of rent case there was no default on the part of appellant. The learned counsel for the respondent attempted to raise an argument that the appellant was dispossessed from the premises in the year 1977 as is evident from Exh. 1/1 which is between different persons and as such when (Exh. 1/2) was executed his possession started afresh under this agreement. I am afraid this C contention cannot be entertained as no foundation was laid in the evidence of respondent for this plea and the evidence of record does not support this contention. I accordingly accept the appeal and set aside the order of the Rent Controller. There will be no order as to costs. M.Y.H. Appeal accepted.