2001 SCMR 1552 (PLP)

JAVED IQBAL, J.‑‑‑The petitioner seeks leave to appeal against order dated 11‑4‑2000 passed by learned High Court of Sindh at Karachi, in F.R.A. No.422 of 1999 preferred on behalf of petitioner under section 21 of the Sindh Rented Premises Ordinance, 1979.

2. Briefly stated the facts of the case are that Mst. Nazir Fatima (respondent/landlady) filed an eviction application on the ground of willful default in payment of rent, non‑payment of electricity bills and removal of intervening wall against petitioner being her tenant of Shop No.4, situated on Plot No.542‑C, Block 2, P.E.C.H. Society, Karachi (hereinafter referred to as the demised premises) which was rented out at the monthly rent of Rs.1,000 under tenancy agreement executed between the parties for 11 months on 5‑9‑1994. Eviction application was contested by petitioner who vehemently denied wilful default and also raised legal and factual objections in rejoinder/written statement with specific plea that an amount of Rs.3,00,000 was paid as 'Pagree'' and the default could have been adjusted against it. After completion of essential legal formalities and on conclusion of trial the learned Rent Controller accepted the eviction application vide order dated 27‑9‑1999 with the direction to vacate the demised premises within a period of 4 months. Being aggrieved an appeal was preferred by the petitioner which has also been rejected vide impugned judgment.

3. It is mainly contended by Ch. Iftikhar Ahmed learned Advocate Supreme Court that an amount of Rs.3,00,000 was paid as 'Pagree' but the same was not mentioned in the tenancy agreement and the rent due could have been realised from the said amount and thus, the question of wilful default does not arise. It is urged with vehemence that factum of admission of receiving 'Pagree' amount allegedly made by the respondent has not been examined in its true perspective which resulted in serious miscarriage of justice. It is also contended that the respondent has failed to produce cogent and concrete evidence to establish that any default whatsoever was committed.

4. Mr. Ahmadullah Farooqui, Advocate‑on‑Record has supported the impugned judgment by contending that the ' Pagree' amount being mutual arrangement of a private nature between the parties could not have been adjusted against rent. In order to support his contention reliance has been placed on PLD 1988 SC 190 and 1987 SCMR 307.

5. We have carefully examined the respective contentions as agitated on behalf of the parties in the light of relevant provisions of the Sindh Rented Premises Ordinance, 1979, and record of the case. The impugned judgment has been perused with care and caution. The entire evidence has been thrashed out. Let us mention here at the outset that the default in payment of rent has been admitted in paragraph 6 of rejoinder/written statement filed on behalf of the petitioner which is reproduced hereinbelow for ready reference:‑‑ "(6) That as per settlement between the parties regarding the adjustment of the rent from the amount of Rs.50,000 (Rs. fifty thousand only) the rent amount from February, 1995 to April, 1997 comes to Rs.27,000 (Rs. twenty seven thousand only) being the rent for 27 months. An amount of Rs.23,000 (Rs. twenty three thousand only) is still lying with the applicant. Under the circumstances above, the opponent has not committed any default in the payment of rent as alleged by the applicant. The case has been filed with mala fide . intention with the sole purpose to harass the opponent. "

6. A bare perusal of what has been reproduced hereinabove would reveal that petitioner has admitted the default. We are not persuaded to agree with the main contention as agitated on behalf of petitioner that since the amount of Rs.3,00,000 was paid as 'Pagree', therefore, the default could have been adjusted against it for the simple reason that no mention whatsoever has been made regarding the amount of ' Pagree' in tenancy agreement and even if the said amount is treated as 'Pagree' being mutual arrangement between the parties having no legal sanctity behind it could not be adjusted against rent which has to be paid in accordance with the terms I and conditions as stipulated in the tenancy agreement and amount of ' Pagree' would not figure in being alien to the tenancy agreement and would also amount to an introduction of a new concept for payment of rent for which an agreed specific mechanism has been evolved in the tenancy agreement.. If the said amount is treated as "security deposit" even then it could not be adjusted towards rent which is to be paid as per the terms and conditions mentioned in C the tenancy agreement which is admittedly silent that in case of default the amount of security deposit could have been adjusted against due rent. A similar proposition was examined in case title Asghar Ali Imam v. Muhammad Ali with the following observations:‑ Although it is not mentioned in the agreement as to how and when ' the security deposit will be adjusted or applied, but it can easily be spelled out from the use of the word security and the positive provisions regarding payment of rent in advance at specified tine as also the payment of other charges; and the provisions in the negative form that the tenant shall not cause loss or damage to the property or to the landlord. The security deposit, therefore, is to be adjusted by the landlord when the tenant vacates the premises towards unpaid rent or against other payments or loss at any time. It could not be adjusted against the current liability to pay the rent. It has to be adjusted in accordance with the terms of the agreement and not by the Rent Controller at his will. It has been so held by us in the case of Mst. Zarina Khawaja (PLD 1988 SC 228).

7. In the light of what has been discussed herein above we are of the considered opinion that the amount of security deposit could not be adjusted against rent till otherwise provided in the tenancy agreement. We are of the view, that default has been committed

8. The upshot of the above discussion is that the impugned judgment being free from any legal infirmity is unassailable and hardly calls for any interference. Since the petitioner is running the business of air conditioner/refrigerator in the demised premises and shifting of business by locating some suitable place, being somewhat time consuming, we allow two months time to the petitioner subject to payment of rent and hand over the vacant possession to the respondent on the expiry of two months and in case of failure writ of ejectment shall be issued by the learned Rent Controller without any notice. We further direct that security amount of Rs.3,00,000 shall be re‑paid subject to clearance of bills, if any, pertaining to amenities.

9. In the light of foregoing discussion the petition being devoid of merit is dismissed and leave refused. Q.M.H./M.A.K./S‑94/5 Petition dismissed.