1984 PLP 1080 (MLD)

(c) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)-- -- -S. 13--Default in payment of rent for four months proved during subsistence of contractual tenancy--Ejectment order, held, unexception able. Amir Ali v. Alima Ahmed P L D 1981 Kar. 150; Najmuddin v. Zamir Ahmed P L D 1982 Kar. 188; Muhammad Yousuf v. Abdullah PLD 1980 S C 298; Mirza Abdul Aziz Beg v. Mushtaq Ahmed 1980 SCMR 834; P L D 1980 S C 298; Haji Fida Hussain v. Muhammad Ibrahim Khan 1972 S C M R 262 and P L D 1982 Kar. 188 ref. Zia Qureshi for Appellant. Abdul Majeed Khan for Respondent. Date of hearing: 4th September, 1984. The appellant Qazi Zaheer Ahmed is a tenant of the respondent Amjad Ali Shaikh in House No. A/136, Block No. 1, Nazimabad, Karachi at the rent of Rs.600 p.m. exclusive .of electricity and Sui gas charges. The tenancy was established by way of a written agreement, dated 14-7-1976. The tenure of the tenancy was 11 months commencing from 1-8-1984. It is alleged that the appellant did not pay rent for the months of December, 1976 and January to March, 1977. The respondent, therefore, filed an application under the provisions of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, on 7-4-1977 for ejectment of the appellant from the premises on the ground of non- payment of rent. It was registered as Rent Case No. 1489 of 1977 and was heard by the learned XIth Senior Civil Judge and Rent Controller, Karachi. The appellant denied the allegations of default in payment of rent and resisted the ejectment application. The parties adduced evidence. The learned Controller held that the appellant had made default in payment of rent and passed order, dated 26-2-1981 for his ejectment from the premises and allowed him time for 60 days for vacating the premises. The appellant has come up in appeal in this Court.

2. The learned counsel for the appellant has contended that the appellant did not make 'default in payment of rent but he had offered rent to the Attorney of the respondent, who used to collect the rent on his behalf, and the attorney avoided receiving the rent on one pretext or the other. He has further contended that the rent was ultimately accepted by the attorney for the respondent and the default in payment thereof, if at all any, stood waived and the appellant was not liable to be ejected on the ground of default in payment of rent. He has also contended that the appellant had become statutory tenant after the expiry of the period of 11 months of the contractual tenancy and rent could be deposited within the period of 60 days after it had become due, and, by way of calculation, there was default in payment of rent for only 2 months and that could be condoned by the learned Controller as it was not a wilful default. He has placed reliance on a case Amir Ali v. Alima Ahmed reported in P L D 1981 Kar. 150 and another case Najmuddin v. Zamir Ahmed reported in P L D 1982 Kar.

188. He has advanced the plea that the respondent held a sum of Rs.2,500 as security deposit paid by the appellant and that amount could be appropriated towards the arrears of rent and there was no default in payment of rent. He has placed reliance in this respect on a case Muhammad Yousuf v. Abdullah reported in P L D 1980 S C 298.

3. On the other hand, the learned counsel for the respondent has urged that default in payment of rent was made during subsistence of the contractual tenancy, whereby the rent was to be paid in advance on the first day of the running calendar month, and there was clear default in payment of rent for 4 months. According to him, the amount kept in deposit with the respondent could not be appropriated towards arrears of the rent in the light of Supreme Court decision in a case Mirza Abdul Aziz Beg v. Mushtaq Ahmed reported in 1980 S C M R

834. In his opinion, the case reported in P L D 1980 S C 298 relied upon by the learned counsel for the applicant is not attracted on the facts of this case. He has also contended that acceptance of the rent after default was committed did not condone the default and he has placed reliance on a case Haji Fida Hussain v. Muhammad Ibrahim Khan reported in 1972 S C M R 262.

4. The relationship of tenant and landlord between the parties was established under a written deed, dated 14-7-1976. The tenancy commenced from 1-8-1976. The rent was settled at Rs.600 per month and it was to be paid in advance on the first day of the running calendar month. A sum of Rs.2,500 was deposited by the appellant with the respondent for reimbursement of damage to the premises, if any, and it was refundable at the time of handing over of possession ,of the premises to the landlord. It is not disputed that the rent was not paid for 4 months from December, 1976 to March, 1977. The ejectment application was filed on 7-4-1977. The contention of the appellant has been that he had offered due rent to the attorney of the respondent, as usual, but the attorney had refused to accept it on one pretext or the other and ultimately ejectment application was filed. He has filed his own affidavit and those of two witnesses in support of his contention. According to him and his witnesses, contacts were made at the house of the attorney of the respondent and he was informed that the attorney had gone to Sukkur and contact was maintained with him at Sukkur. But these facts were not mentioned in the written statement and it is obvious that the case has been developed later and the learned Controller has rightly rejected that plea. The default in payment was committed during the tenure of the contractual tenancy and the default for each month commenced after the 15th of each moth as provided under section 13(2) (1) of the West Pakistan Urban Rent Restriction Ordinance, 1959, whereunder the ejectment case was filed. It follows that there was clear default in payment of rent for all the four months viz. December, 1976, January, February and March, 1977. The case Amir Ali v. Mrs. Alima Ahmed P L D 1981 Kar. 150 relied upon by the learned counsel for the appellant is not attracted on the facts of the case as it was laid down therein that, after the expiry of the contractual tenancy, the tenancy becomes statutory tenancy; whereas the default in this case was committed during the subsistence of the contractual tenancy. The other case reported in P L D 1982 Kar. 188 also is not attracted.

5. As regards the acceptance of the rent at subsequent stage, it was held in the case reported in 1972 S C M R 264 that payment of rent after it had become due could not condone the default in payment thereof and this ground does not advance the case of the appellant.

6. As regards the plea of appropriation of the security deposit towards the arrears of the rent, it was held in the case Mirza Abdul Aziz Beg v. Mushtaq Ahmed 1980 S C M R 834 that the deposit made by the tenant with the landlord was not appropriatable towards the arrears of the rent unless it was so stipulated in the agreement. In the instant case, the deposit made by the appellant was for the purpose of reimbursement of any damage caused to the premises; and it could not be appropriated towards the arrears of rent during subsistence of the contractual tenancy. Of course, a different view was taken in a, case Muhammad Yousuf v. Abdullah reported in P L D 1980 S C 298; but the facts in that case were distinguishable inasmuch as that the contractual tenancy in that case had expired and the deposit was considered to be a debt against landlord and it was held that the security deposit could be appropriated towards arrears of the rent which had fallen due during the course of statutory tenancy.

7. For the reasons recorded above, the default in payment of rent attributed to the appellant was not condonable and the law view adopted by the learned Controller that the appellant was at default in payment of rent and liable to be ejected is unexceptionable. In the result, the order of the learned Controller is upheld and the appeal is dismissed with costs.

8. The learned counsel for the appellant has requested that four months' time may be allowed to the appellant for vacating the premises. The learned Advocate for the respondent has no objection. Accordingly, the appellant is allowed four months' time for putting the respondent/ landlord in vacant possession of the rented premises. M. A. K. Appeal dismissed.