1986 PLP 1624 (MLD)

Mr. Abdul Majeed the learned counsel for the appellant has contended that the learned Rent Controller has erred to hold that the appellant had committed default in payment of rent from November 1977 to onward. On the other hand Mr. S.M. Shahudul Haq, the learned counsel for the respondent has submitted that the findings of the learned Rent Controller are in accord with the evidence on the record. The respondent stated in para. 4 of the eviction application that the appellant had committed default in payment of rent for the months of August, 1977 to March, 1978 amounting to Rs. 2600. The appellant denied contents of para 4 of the eviction application. He stated that the 'respondent never collected rent every month but always collected the rent for months together. He also stated that he paid and thereafter paid rent for the month of November 1977 to the Rent Collector Mukhtar Ahmad. He further paid rent for the month of December 1977 to Mukhtar Ahmad, but after sometime, he returned to him saying that Mst. Khairunissa's husband refused to accept the same. The respondent refused to adjust the charges for fitting of the gas connection as agreed. The respondent examined himself in support of the application. The respondent to a suggestion in cross‑examination replied that it is correct to say that I never received the rent from February, 1977 to October, 1977 from the appellant. He denied the suggestion that he stated false is his eviction application that he had not received the rent of September and October 1977. He also denied the suggestion that Mukhtar refused to accept the rent: saying that he wanted his house vacated. He also denied the suggestion that he refused to receive the rent from, the appellant. In rebuttal the appellant filed his affidavit‑‑in‑evidence wherein he denied that he had not paid rent from August, 1977 to March, 1978. He stated that the respondent received lump sum rent of eight month from November; 1976 to June, 1976 and from February, 1977 to Octobe7, 1977 and also four months rent on 1‑11‑1975, the original rent receipts, dated 1‑7‑1976, 1‑11‑1977 and 1‑11‑1975 were annexed to the affidavit. He further stated in his affidavit‑in‑evidence that he paid rent for the month of October, 1977 and paid further rent for the month of November, 197%‑ to the Rent Collector Mukhtar Ahmad and again paid but for the month of December, 1977 and January, 1978 to Mukhtar Ahmed but after sometime he returned the rent saying that respondent had refused to accept same. He afterwards approached the respondent and tendered the rent from November 1977 to February, 1978 but he refused to accept the same for some ulterior motive. From the above evidence, it is clear that the appellant stated in his written statement and affidavit that he paid rent for the months of October and November, 1977 to Mukhtar Ahmed. He further paid the rent for two months that is December and January 1978 to Mukhtar Ahmad which was returned to him on the ground that the respondent refused to accept the same. It is pertinent to note that the appellant did not suggest to the respondent in his cross‑examination, that he paid rent to Mukhtar Ahmed which was returned to him. The question which was suggested in cross‑examination was that Mukhtar refused to accept the rent saying that the respondent wanted his house vacated, the other suggestion was that he refused to receive the rent from the appellant. It slows that tare explanation offered by the appellant is contradictory. Mr. Abdul Majeed the learned counsel for the appellant has contended that tenancy commenced as per agreement, dated 1‑11‑1975 and came to end by efflux of time on 30‑9‑1975. His contention is that the appellant paid a sum of Rs. 650 as fixed advance receipt for two months and the same lying in deposit with the respondent. His contention is that after expiry of the agreement of tenancy the appellant was entitled to adjust the same towards rent for the months of November and December, 1977. On the other hand Mr. Shaudul Haque, the learned counsel for the respondent has submitted that the amount of security is lying in deposit with the respondent in order that the appellant may duly‑perform his obligations. I have perused the agreement of tenancy which is silent about the security deposit. I have also perused the receipt. The plea of fixed deposit was not raised in the written‑statement. The case of the appellant is that the respondent got the signature of the appellant on the blank paper. It is pertinent to note that the respondent was cross- examined at length but no suggestion was made to him about this deposit. The language of the receipt issued by the respondent is of no consequence when it says that the amount of Rs. 650 is fixed advance for two months. This is so far the simple reason that a receipt not being part of a contract does not have the effect of changing or adding to the terms of the contract. The fixed advance by its nature is always liable to forfeiture in the event of violation of the conditions for which such deposit is kept. Likewise the amount of deposit is .to be returned back, if the purpose for which it was given, no longer subsists. In. Muhammad Yousuf v. Abdullah P L D 1980 S C 198 the Hon'ble Supreme laid down the following dictum: "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 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 was a very technical default and it would reduce the law to a force, if the respondent was evicted for being in debt to the respondent on account of his failure to pay rents when in fact the overall position was that the respondent was it debt to the appellant. Therefore, there could not be more appropriate case for the exercise of the Court's discretion under section 13 of the said Ordinance in the 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. We, therefore, set aside the eviction order passed by the three Courts below and allow the appellant's appeal. However, as the appeal turned on‑ a question of law which had not been decided by this Court, we leave the parties to bear their own costs." In Muhammad Ali v. Syed Asghar. Ali Imam 1982 C L C 1030 the contention of the learned counsel for the appellant was that in the absence of any stipulation the same was adjustable towards future rents. Mr. Vallian, J. held that the amount of security deposit was adjustable of said rent and as such default if any was technical default. In Malik Ghulam Rasul v. Muhammad Ishaq 1982 C L C 1014 fir. K.A. Ghani, J. held: "On the basis of the evidence on record the fixed deposit lying with the respondent and the said amount was sufficient to wipe out the arrears of rent on the basis of which ejectment of the appellant tenant was sought." In Munawar Begum and 9 others v. Mst. Alqab Begum 1983 CLC 1548, Mr. Nasir Aslam Zahid; J. held: "In my view of the facts in the aforesaid Supreme Court case are similar to the instant case and as it is admitted that an amount of Rs. 1,125 is lying in deposit with the respondent, if that amount is adjusted `here would be no default at all. In view of the Supreme Court judgment, after the expiry of the lease period, the tenant became a statutory tenant and no longer remained a contractual tenant." In Haji Abdul Aziz v. Monsooruddin Hyder 1983 C L C 81, Mr. K.A. Ghani, J. held, as follows: "At the very outset it may be mentioned that in view of the submissions made by the learned counsel for the appellant/ tenant that admittedly at the time when the said agreement was made with the respondent /landlord on 26‑1‑1968 a sum of Rs. 1,500 was lying as deposit and that after the expiry of the period of 11 months, the said amount was not adjusted or refunded td the tenant and continued to remain with the landlord, upon the principle authoritatively laid down by the Honourable Supreme Court of Pakistan in the case of Muhammad Yousuf v. Abdullah, Mr. S.H. Fani, the learned counsel for the landlord did not press issue No.1 and conceded that there was no default in payment of rent." In Muhammad Younis v. Mst, Salma Rhatoon 1984 C L C 1981 Mr. Nasir Aslam Zahid, J. held that: "The deposit lying with the agreement of tenancy had expired in February, 1977 and there was no default and the appellant could not be held to be a defaulter." In Mirza Abdul Aziz Beev. Mushtaq Ahmad Shaikh 1980 SCMR 834, the Hon'ble Supreme Court'held as follows:‑ "We pointed out that the appellant had deposited one month's rent in advance and as rightly held by the learned Judge, this advance was adjustable against the rent due from him. But, the appellant had also deposited the sum of Rs.

825. However, as this deposit was by way of security against the appellant's liability for damage, if any, to the demised premises, we agree with the view of the learned Judge that this deposit of Rs. 825 was not adjustable against the rent due from the appellant." The case, cited by the learned counsel for the appellant are not) applicable to the facts of the present case as the fixed deposit amount was not part of the agreement of tenancy and was not deposited in pursuance of the agreement. Lastly this plea was not raised in the written‑statement, and no suggestion was made to the respondent. In Taiyab .Kappda v. Agha Ziauddin Burni 1981 C L C 1267, Mr. Ajmal Mian, J. held as follows: "Even, otherwise, in the absence of any such plea in the written‑statement, in my view the appellant was not entitled to set up a new case at the stage of the evidence, it is true that the law of pleadings is not strictly applicable to rent proceedings, but at the same time a tenant is required to disclose full facts, which may constitute a defence, to the ground of default." The above dictum is applicable to the facts of this case. I am of the view that mere fact that the landlord had taken a deposit at the commencement of tenancy is not by itself sufficient to conclude that such deposit is adjustable during the continuance of tenancy towards arrears of rent. The appellant did not raise any plea in the written statement that this deposit made by him was adjustable during the continuance of tenancy, as suggestion was made to the respondent when he appeared in the witness‑box. This plea was taken in the affidavit‑in‑evidence. This plea was apparently not pressed before the Controller, as it did not find place in the order of the Controller. The appellant had taken this ground in the name of appeal. In the circumstances of the case firstly, I am not inclined to go into this question for the first time as this aspect of the case was not agitated before the Controller and was, therefore, not considered and secondly, I have seen the provision with regard to deposit in the agreement of tenancy which does show that the ‑appellant had kept in deposit the amount. I am, therefore of the view that reversal of the finding of the Controller is not justified. The last contention of the learned counsel for the appellant is that the appellant deposited in Court rent for two months on 9‑3‑1978. D This deposit in Court on 9‑3‑1978 will not help the appellant as the amount was deposited after the default was committed. For the foregoing reasons, I do not find any merit in this appeal. The same is dismissed with no order as to costs. However, the appellant is allowed 'to vacate the premises in dispute on or before 31‑1‑1986. C . M . A . 2060 of 1984 is granted and the respondent is allowed to withdraw the rent deposited by the appellant. The C.M.A. No. 1342 of 1985 has become infructuous. H.B.T. ‑‑‑‑‑ Appeal dismissed.