1990 PLP 1218 (CLC)

Date of hearing: 17th September, 1989. This order would dispose of F.R.A. No. 555/86 and the F.RA. No.758/86, both directed against the judgment dated 3‑8‑1986 delivered by the V1th Senior Civil Judge and Rent Controller Karachi West in Rent Case No.3624/80.

2. Said rent case was filed on 6‑7‑1980 by Muhammad Rafq (hereinafter to be referred to as the landlord) for eviction of Fasih Hashmi (hereinafter to be referred to as the tenant) from the premises in litigation vi4. threr, rooms and amenities on ground floor of the property bearing No.l/G‑11/3, Nazimabad, Karachi on the sole ground of default in payment of rent for April, 1980 and for the subsequent months. Rent was allogedly demanded through a Regd. Notice which was returned undelivered.

3. Admittedly Fasih Hashmi is tenant of Muhammad Rafiq in the premises in litigation, and on 23‑12‑1971 they entered into a Rent Agreement, according to which the rent of the premises was settled at Rs.275 p.m. and the tenant paid to ‑the landlord Rs.825 as fixed deposit refundable on expiry of the period of tenancy. The sui gas charges and the electric charges were payable by the tenant as per the consumption.

4. In his w6tten statement Fasih Hashmi (tenant) denied rent of the premises in litigation being Rs.400 p.m. and said that it was Rs.275 p.m. as fixed under the agreement of tenancy. He claimed to have paid to the landlord at the time of occupying the premises Rs.725 as advance rent for three months. It was alleged that although the rent was being paid to the landlord regularly by 10th of each 'month but no rent receipt was issued. 1n this way rent was said to have been paid for April, 1980 on 7‑4‑1980 and for May, 1980 on 20‑4‑1980. Reason given for earlv navment of rent for Mav. 1980 was that the tenant had to leave for India on 23‑4‑1980. The tenant added that after his return from India on 13‑7‑1980 he tendered rent for the months of June and July, 1980 on 18‑7‑1980 to the landlord, who refused to receive the same, and desired enhancement of the rent from Rs.275 p.m. to Rs.550 p.m. The tenant did not agree to doubling of the rate of rent, although he agreed to increase of the rent to a reasonable limit. The tenant claimed to have sent rent for June, 1980, July 1980 and August 1980 to the landlord through money orders. In this situation default in payment of rent was denied.

5. After recording the evidence led by the parties and after hearing their counsel learned Rent Controller under the impugned judgment dated 3‑8‑1986 accepted the rent application and ordered eviction of the tenant within 30 days of the order.

6. The tenant filed F.RA. No.555/86 challenging his eviction while the landlord filed F.RA. No.758 of 1986 challenging the finding about rate of the rent at Rs.275 p.m. and taking exception to omission by the Rent Controller in finding the tenant defaulter in payment of rent for the period from April, 1980 to 7‑9= '1983 as according to him the tenant had not paid rent from June 1980 to August 1983. During pendency of the appeal landlord Muhammad Rafiq died and his L.Rs. were brought on record.

7. Mr. Hafiz Abdul Baqi, learned Counsel for the tenant referred to the tenancy agreement Ex.O/1 dated 23‑12‑1971 where the rate of rent is mentioned to be Rs.275 p.m. and where it is also mentioned that the tenant had paid to the landlord Rs.825 as fixed deposit which was refundable on expiry of agreement at the time of tenant's vacating and handing over vacant possession of house to the landlord. It was argued that there was no question of default when Rs.825 were paid to the landlord as deposit on 23‑12‑1971. Learned Counsel for ‑the tenant denied execution of any other agreement or enhancement of the rent to Rs.400. It was added that as per para 3 of the rent agreement Ex.0/1 the monthly rent was payable in the first week of each succeeding month and the amount of the fixed deposit was to be forfeited if rent for continuous period of three months was not paid. Learned Counsel for the tenant next argued that the tenant had paid rent for the period in question' but no rent receipts were issued and that rent for June, 1980 and July, 1980 was sent through a money order. Previous rent application No.102/88 filed by the landlord was said to have been dismissed on 22‑9‑1088.

8. Mr. Zahid Merghoob, learned Counsel for the landlord argued that rent of the premises was raised by consent to Rs. 400 p.m. In this respect, reference was made to the admission by Shabbir Khan tenant's witness in cross-examination. Referring to cross‑examination of Fasih the tenant, learned Counsel for the landlord argued that one money order only appeared to have been sent to the landlord. It was next argued that the monthly rent could not be adjusted from the amount of fixed deposit mentioned in the agreement.

9. Admittedly the amount of Rs.825 was paid by the tenant to the landlord at the time of execution of the agreement Ex.0/1 dated 23‑12‑1971. The question is whether amount of such deposit can be adjusted towards payment of monthly rent. In this respect, learned Counsel for the tenant cited the cases of (i) Haji Abdul Aziz v. Mansooruddin Hyder (1983 C L C 812), (ii) Arshad Jamil and others v. Shamim Ahmed (1989 C L C 718) and (iii) Muhammad Yousuf v. Abdullah (P L D 1980 SC 298). In (i) above the view taken by a learned Single Judge of this Court was that if after the expiry of period of tenancy, the amount of security deposit was not adjusted or refunded to the tenant and continued to remain with the landlord, there was no default in payment of rent. In (ii) above the view taken by a learned Single Judge of this Court was, that the amount of security deposit can be adjusted against arrears of rent. Both these authorities are based on the case mentioned at No. (iii) above, where the lease agreement provided deposit of Rs.1,000 with the lessor with stipulation that the same would be confiscated by the lessor in case the lessee. did not pay rent for three consecutive months or if he did not give vacant possession to the lessor at the time of the termination of the tenancy. Both such provisions were held in the cited case to be illegal on the ground that the W.P. Urban Rent Restriction Ordinance expressly prohibited the landlord from recovering any thing in excess of the fair rent and it specified for eviction of a tenant the grounds which did not include expiry of lease period. But at the same time it was held that the lessee's deposit should have been adjusted against the rent due from him. However, the Supreme Court of Pakistan appears to have changed such view, in the case of Asghar Ali Imam v. Muhammad Ali (P L D 1988 SC 228) where it was held that the security deposit was to be adjusted by the landlord towards unpaid rent or against other payment or loss at any time when the tenant vacates the premises and that such security deposit could not be adjusted against the current liability to pay the rent. It was also held that the security deposit was to be adjusted in accordance with the terms of the agreement and not by the Rent Controller at his will. Earlier in the case of Mirza Abdul Aziz Beg v. Mushtaq Ahmed Shaikh (1980 S C M R 834) Supreme Court of Pakistan observed that the deposit by way of security was not adjustable against the rent due from the tenant, but it was by way of security against the tenant's liability for damage, if any, to the demised premises. This view was also adopted by a learned Single Judge of this Court in the case of Mehromal v. Habibur Rehman Khan (P L D 1988 Karachi 240). Learned Counsel for the landlord cited the case of Mst. Zarina Khawaja v. Agha Mehboob Shah (P L D 1988 S.C. 190), where it was held that the security deposit is to be applied by the landlord according to the terms in the rent agreement, to compensate the landlord at the time of the tenant handing over possession to him, for unpaid rent and/or for damage caused by the tenant to the property at any time, and that application of security deposit by the Court for absolving the tenant from liability to make a deposit under section 16 (2) was impermissible and unlawful. Reliance was also placed on the case of Syed Asghar Ali Imam v. Mohammad Ali (P L D 1988 S C 228) already referred to above. In the case of Syed Ahmed Ali v. Mst. Zubeda (1989 C L C 609) a learned Single Judge of this Court relying on the cases of Mohammad Yousif v. Abdullah (P L D 1980 S C 298), Zarina Khawaja v. Mehboob Shah (P L D 1988 S C 190), Asghar Ali Imam v. Muhammad Ali (P L D 1988 S C 228) and Mirza Aziz Beg v. Mushtaq Ahmed (1980 S C M R 834) took view that where the tenancy agreement clearly provided for refund of security deposit by the landlord only on expiration of tenancy and delivery of premises to him by the tenant, the landlord was under no obligation to adjust rent from the security deposit. In view of above discussion, we have to follow the latest view laid down by the Supreme Court of Pakistan and consequently I hold that the rent deposited by the tenant with landlord could not be adjusted towards monthly rent or towards payment of arrears of rent.

10. Next question to be determined is about the rate of rent. As per the agreement Ex.0/1 the rate of rent was Rs.275 per month. The onus was on the B landlord to prove that the rate of rent was increased to Rs.400 per month. In his affidavit ExA, landlord Muhammad Rafq admitted that initially rent of the premises was Rs. 275 per month but then,in 1979 the tenant agreed to enhance the rent to Rs.400 per month and started making payments at the said rate and paid rent at the said rate for March, 1980 paid in April, 1980. In his cross examination, Muhammad Rafiq landlord admitted that no notice was sent to the tenant, requiring him to pay the rent at the rate of Rs.400 per month. He denied the suggestion that the rent was being paid to him at the rate of Rs.275 per month and at that rate he was paid the rent for May, 1980 on 20‑4‑1980. Muhammad Rafiq admitted in his cross‑examination that a sum of Rs.550 as rent for two months was sent to him by money order and that he refused the same. The refused money order was produced as ExA/4. As against this evidence, tenant Fasih Hashmi, in his affidavit Ex.5 stated that the agreed rent was Rs.275 per month and that he was always regular in paying rent at said rate and he sent the rent by money order ExA/4 at said rate. He added that the rate of rent had never been agreed to be Rs.400 per month. In his cross‑examination, Fasih Hashmi denied that he had sent first money order for Rs.800 at the rate of Rs.400 per month..Fasih was not put any suggestion in his cross that he had paid rent for March, 1980 in April, 1980 at the rate of Rs.400 p.m. The tenant examined Shabbir Khan, who is also the tenant of Muhammad Rafiq. He said that rate of rent of the premises in litigation was Rs.275 per month. In his cross examination, he admitted that the relations between him and the landlord were strained and that the rate of rent of the premises in possession of the tenant was Rs.400 per month. Relying on this admission Mr. Zahid Marghoob, learned Counsel for the landlord contended that the rate of rent was Rs.400 per month. Shabbir Khan did not state as to, what was the source of his information about the rate of rent being Rs.400 per month. It appears that he made this statement inadvertently. The onus to prove the rate of rent to be Rs.400 per month in spite of its being Rs.275 as per the written agreement Ex.0/1 was so heavy on the landlord that the same cannot be discharged by a stray statement of a witness who was not witness to the rent agreement. The documentary evidence about the rate of rent being Rs.275 per month cannot be rebutted by an oral statement of a witness, therefore, hold that the rate of rent was Rs.275 per month and not Rs.400 per month.

11. The next point to be considered is, whether the tenant had defaulted in payment of rout for the period from April, 1980 to June, 1980 or for the months of April, 1980 and May, 1980 only or for any period. On this point landlord Muhammad Rafiq in his affidavit stated that the tenant had paid rent for March, 1980 in April, 1980 and that no rent was paid for April, 1980 and for subsequent months. That he sent a registered letter dated 16‑6‑1980 ExA/2 to the tenant under envelope Ex.A/1 demanding rent for the months of April, 1980 and May, 1980 but the envelope ExA/1 was returned undelivered. In his cross‑examination Mohammad Rafiq stated that he had been issuing the rent receipts to the tenant but he was not in possession of the counterfoils. He admitted that he was not maintaining books of account regarding the recovery of rent. He denied that he never issued any receipt while receiving rent, and that he did not issue any receipt while receiving Rs.825 from the tenant as security deposit. Under his letter dated 15‑6‑1980 Ex.A/2 the landlord demanded from the tenant the rent at the rate of Rs.400 per month and not at the rate of Rs.275 per month. Muhammad Rafiq denied that on 20‑4‑1980 he was paid rent in advance for May, 1980 at the rate or Rs. 275 per month. Muhammad Rafiq said that sometimes he collected rent from the tenant and sometimes the tenant used to come to him to pay him the rent and that this was month to month. He added that in May, 1980 he went to collect the rent for April, 1980 but was told that the tenant was not in the house. That he did not know if the tenant had gone to India on 23‑4‑1980. Muhammad Rafiq admitted having refused to receive the money order ExA/4 which was for Rs.550 as rent for two months. As against this, Fasih Hashmi tenant said in his affidavit Ex.5 that he was regular in payment of monthly rent, which he paid in advance but the landlord never passed on any receipt to him. He claimed to have paid rent for April, 1980 personally to the landlord on 7‑4‑1980 without receiving rent receipt. He added that before leaving for India on 23‑4‑1980 he paid Rs.275‑as rent for May, 1980 to the landlord on 20‑4‑1980 without receiving any receipt. On return. from India on 11‑7‑1980, Fasih Hashmi claimed to have gone to the landlord on 18‑7‑1980 with the rent for June, 1980 and July, 1980 but the same was refused. The tenant alleged that the landlord demanded from him the rent at the rate of Rs.550 per month but he declined to pay rent at such rate.. Fasih claimed to have sent rent to the landlord by money order EX.A/4, which was refusad. In his cross‑examination, the tenant admitted that as per clause 3 of the rent agreement Ex.0/1, he was supposed to pay the rent after the expiry of each month. He denied having defaulted in payment of rent for April, 1980, May 1980 and June 1980. There is nothing in cross‑examination of the tenant to shatter his evidence. He was supported by his witness. Shabbir Khan on the point that the landlord never issued a rent receipt to any of his tenants after receiving from him the rent. In this situation it is difficult to believe oral evidence of the landlord on the point of default. The landlord has not been able to rebut evidence of the tenant, that he had paid rent for the period ending May, 1980. The rent for June sand July, 1980 was offered to the landlord on 18‑7‑1980 but he refused to receive it presumably because he had already filed rent case No.3624 of 1980 against the tenant on 6‑7‑1980. However, as the evidence stands, the landlord has not been able to prove that there was wilful default on part of the tenant in paying the rent. It appears that the tenant was all along willing and ready to pay the rent for the months of June, 1980 onwards but the landlord was recalcitrant in accepting the rent.

12. In view of the above, I set aside the impugned order of ejectment and accept F.RA. No.555/86 and dismiss F.RA. No.758/86 with no order as to costs. AA./F‑125/K Order accordingly,