1986 PLP 1563 (CLC)

This First Rent Appeal has been filed by the appellant challenging the order of learned IXth Senior' Civil Judge and Rent Controller, Karachi, dated 26‑5‑1984, ordering eviction of the appellant on the ground of non‑compliance with the direction of the tentative deposit of rent.

2. I have heard the learned Advocates for the parties.

3. Admittedly, the appellant is a tenant of the respondent on a monthly rent of Rs.2,100 under a tenancy agreement, dated 12‑4‑1982. The learned Rent Controller vide his order, dated 12‑11‑1983, passed tentative order directing the appellant/tenant to deposit arrears of rent w.e.f. November, 1982 up‑to‑date within three months from the date of the order, and also to continue depositing the future rent regularly on or before 10th of every month. Admittedly, no rent was deposited by the appellant within the period specified in the above order of learned Rent Controller, hence appellant was ordered to be ejectment on the application of respondent under section 16 (2) of the Sind Rented Premises Ordinance, 1979. The appellant took the plea before the learned Rent Controller, that Rs.20,000 were lying as security with the landlord, which should be adjusted towards arrears of rent and therefore, he has committed no default. The learned Rent Controller rejected this plea of the appellant as according to para. 6 of the tenancy agreement, the deposit was not adjustable towards monthly rent and ordered, that the defence of the appellant be struck off.

4. The appellant relies upon P L D 1980 S C 298 wherein it is held as under:‑ "Words 'agreement of tenancy' mean an agreement which is in force and not an agreement which is expired and is dead. After expiry of agreement the rights and liabilities of the parties are to be governed exclusively by. Rent Ordinance. Though their Lordships found the tenant to be in default in the payment of rent, which amounted to Rs.600 but as against this, the landlord had failed to return to the tenant the security deposit of Rs.1,000 on the expiry of the lease‑agreement, therefore, the order of eviction of the tenant was set aside."

5. The learned Advocate for the respondent has, however, relied upon 1980 S C M R 834 wherein their Lordships held, that the deposit of security against such tenant's liability for damages to the demised premises was not adjustable against rent due from the tenant. Relying this ruling of S C in 1983 C L C 934, B.G.N. Kazi, J., has held that the fixed deposit of rent with landlord by way of security was not adjustable against rent due from the tenant. However, this ruling of the Supreme Court has been distinguished by Ajmal Mian, J., in the case reported in 1984 C L C 97, as the tenancy agreement under which security amount was deposited was in force when the alleged default was committed.

6. In the instant case, the tenancy agreement was executed for eleven months on 12‑4‑1982, which was in force upto 11‑3‑1983. The default is alleged to have been committed for the month of November, 1982 to February, 1983 when the agreement was in force. However, the question as to whether alleged default was committed by the appellant has not been decided by the trial Court. The learned Rent Controller had passed tentative order on 12‑11‑1983 directing the appellant to deposit rent within three months from November; 1982 up‑to‑date. Thus, before 12‑2‑1984, the appellant had to deposit rent from the month of November, 1982 to the month of February, 1984 i.e. for 16 months. The total amount of the rent would come to Rs.33,

600. No doubt. the tenancy agreement was not in force in February, 1984 but even if security amount of Rs.20,000 was adjusted towards arrears of rent due, still that amount would not cover the. entire dues payable by the appellant under order of the Court. The appellant, therefore, would still be committing default by not paying the full dues uptil the relevant date.

7. In P L D 1967 S C 530 it is held, that having regard to language of section 13 (6) of the West Pakistan Urban Rent Restriction Ordinance, 1959, one finds difficult to accept that the legislature intended to leave it to the discretion of Rent Controller to decide, whether he would or would not in a given case enforce default clause. Rent Controller has no discretion left in case of default to order striking off defence.

8. Section 13 (6) of West Pakistan Urban Rent Restriction Ordinance, 1959, is similar to section 16 (2) of the Sind Rented Premises Ordinance, 1979, under which the impugned order has been passed by the Rent Controller.

9. As the order of Rent Controller has not been complied with under section 16 (2) and default has been proved, the order of the Rent Controller striking of the defence of the appellant is valid and legal. The appeal is dismissed with no orders as to costs. The appellant is directed to vacate the premises within two months from the date of this order and handover peaceful possession to the respondent. H . B . T . Appeal dismissed.