1985 PLP 121 (MLD)

Ss.15 & 21--Appeal--New point--Appellant landlady raising a new point of subletting of premises by tenant, for which fresh proceedings filed by her and wetting to argue that question--New point not permitted to be raised in appeal. Rashida Patel for Appellant. Muhammad Ibrahim Abbasi for Respondent. Date of hearing: 7th May. 1985. The dispute in this First Rent Appeal relates to premises constructed on plot of land bearing No.7, Block 5-E, Commercial Area, Nazimabad, Karachi. The appellant is landlady and the respondent is tenant'. The appellant having been unsuccessful before the Rent Controller, teas filed this rent appeal seeking ejectment of the respondent. Originally this promises were let out to the respondent on monthly rent of Rs. 415 A sum of Rs.,000 was deposited with the landlady as a security deposit. Gradually the rent was enhanced and some times in 1976-77 the rent was agreed to be Rs.700 per month. It appears that the tenant was irregular in payment of rent but the appellant did not take any action for those defaults which wart' alleged to have beer, committed. As such we are not concerned with them in this appeal.

2. On 10th of January, 1979 an. application for ejectment was filed by the present appellant on ground of default for the months of October to December, 1978. Other grounds for ejectment were additions and alterations in the demised premises- thus impairing the value and utility of the premises in question; and activities causing nuisance to the neighbours. Perusal of the order passed by the Rent Controller shows that the two grounds namely, Lansing alteration and modification and nuisance could not be proved and were disposed of by the learned Rent Controller with the following remarks:-- "Both these issues were framed from the pleadings of the applicant and the burden of proof lies upon the applicant but the applicant has failed to prove these issues. Even the applicant has said nothing in his affidavit about the nuisance. In lire result both the issues are replied in negative."

3. The only issue which survived for disposal of full appreciation of evidence was issue No.1 and it was "whether the opponent is a wilful defaulter". The case of the appellant is the rent for the month of October, November and December, 1978 were not paid becoming due and payable. The Rent Controller in his order has held that there is no agreement of tenancy in this case and in the absence of agreement the alleged default is to be examined in the light subsection 2(ii) of section 15 of the Sind Rented Premises Ordinance 1979 which provides that the Controller shall make an order directing the tenant to put the landlord in possession of the premises if he is satisfied that the tenant has failed to pay rent in respect of the premises in his possession within 60 days after the rent has become due and payable. Now it is an admitted position that rent for three months of October, November and December, 1978 have not been paid by the respondent. In the situation the rent for October which became due on the first of November could be paid within the grace period of 60 days as provided under section 15, subsection 2(ii). Admittedly this has not been done as such the tenant is exposed to the consequences of ejectment provided in the section. So far as the rent of November and December, 1978 are concerned, they would be covered by the grace period of 60 days as no cause would accrue to the appellant hey were paid within the grace period of 60 days from their becoming due, namely by the first of February, 1979 and first of March 1979 respectively. The learned Rent Controller has found in his order that this view of the matter default of only one month of October proved. But if the amount for this month of default namely Rs.700 adjusted from the security deposit, even this default would be covered

4. Learned counsel for the appellant has argued that the security deposit cannot be utilized or consumed for purposes of adjustment of arrears of rent. Such is the view of the Supreme Court expressed in several cases. In this connection reference may be made to P L D 1980 Kar. 92; 1983 C L C 1934 and 1980 S C M R 804.

5. There is no doubt the argument has technical merits but the question that remains to be answered is whether the default of one month should result in the outright ejectment of the tenant, or looking to the circumstances of the case it should be treated as technical default and condoned.

6. The balance of authority is that such technical defaults are condoned. Guidance is provided by a Judgment of the Supreme Court Muhammad Yousuf v. Abdullah P L D 1980 S C 298:-- "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 wasp 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 tact 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 tire tenant's favour. 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." The learned Rent Controller ,also seems to have taken this view and in appeal it would not lee st and proper to reverse these findings and eject the tenant Eras; a premises which he is occupying since early 1970. The leaned coup el for the appellant has stated at the bar that the appellant has already tiled fresh proceedings against the respondent on grounds of subletting etc. and these proceedings are now pending before the learned Rent Controller, Karachi. She wanted to argue that question also but this being a new point, would not be permitted to be agitated in this appeal. In the circumstances I would dismiss this appeal but with no order as to costs. M. Y. H. Appeal dismissed.