In 1980 two shops (one unit) were let out to Siraj Khan at the rate of Rs,300 per month. During continuation of the tenancy rate of rent had been revised different times. According to landlord the rent after 10th July, 1993 was Rs,600 per month whereas tenant Siraj Khan claimed it Rs,550 per month.
2. On 4th November, 1993 Taj Muhammad, the landlord, filed application under section 17 of Cantonments Rent Restriction Act, 1963 for ejectment of tenant Siraj Khan on the grounds of default in payment of rent since after 11th July, 1993 and bona fide requirement for personal use. After recording the evidence of the parties, the Rent Controller accepted the application directing the ejectment of tenant Siraj Khan within 60 days.
3. Siraj Khan, the appellant, has assailed the ejectment order through present appeal on the ground that it is illegal, unjust and without jurisdiction. Further that the ejectment has been ordered arbitrarily without applying independent mind to the material and evidence on record.
4. While arguing, the appellant's learned Advocate contended that the officer having exercised the powers as Rent Controller Cantonment, was in fact not notified as such, therefore, he was not Controller of rent under the law. His next contention was that the landlord did not examine himself on oath on the question of personal requirement and the only evidence of his attorney cannot legally establish the personal bona fide requirement. Further that it was nowhere stated by the attorney of the landlord that what business the landlord wanted to start in the premises in question.
5. The learned Advocate made it a point that rent agreement was for 11 months, therefore, amount of Rs,5,000 received by the landlord as security advance had to be adjusted towards the non- payment, if any. Further that in view of section 17 of Cantonments Rent Restriction Act, which requires the default in payment of rent for 60 days from the date when it became due and the default was not established. In support of his contention he referred to PLD 1976 Karachi 1075, 1996 CLC 116 and PLD 1957 (W.P.) Karachi 204.
6. The learned Advocate appearing for the contesting respondent contended that the personal need can be established through evidence of attorney also. It is none of the requirements of law that the landlord himself/herself should come into the witness-box and prove the personal requirement. Reference was made to 1984 CLC 3093. It was also argued that after expiry of the period of rent agreement the terms thereof do not become totally irrelevant for regulating the tenancy. The amount received by the landlord as security deposit is not to be adjusted towards the arrears of rent absolving the tenant from liability of eviction for default in payment of rent. He relied upon the decision reported in PLD 1988 SC 190.
7. The competency of Mr. Sultan Mehmood Khattak having decided the rent case as Rent Controller, Cantonment Board, Drig Road, Karachi has been attacked on the ground that he was not notified as Controller of Rent. Learned Advocate appearing for respondent produced photostat copy of the order passed by this Court in C.P. No,36 of 1995 whereby this particular point was decided and the petition challenging the competency of Mr. Sultan Mehmood Khattak to perform as Rent Controller was dismissed. In view of the decision, the objection raised by appellant's learned Advocate falls to the ground.
8. Although the landlord did not examine himself but his attorney did depose on the question of personal bona fide requirement. It is not the requirement of law that examination of landlord is essential for establishing the bona fide personal requirement. He is only required to substantiate the plea by producing satisfactory admissible evidence. The pronouncement reported in 1984 CLC page 3093 supports the view.
9. The evidence produced by the landlord on the point of personal requirement was appreciated by the learned Rent Controller. The learned Rent Controller has drawn right conclusion appreciating properly the evidence/material on the record.
10. It is true that the pronouncement referred to by the appellant's learned Advocate speak clearly that after expiry of the period of the rent agreement the amount received by landlord as security advance has to be adjusted towards the non-payment, if any, but the Honourable Supreme Court has settled the point finally by its celebrated judgment reported in PLD 1988 SC page 190. In this judgment the Honourable apex Court considered entire case-law and resolved finally the following seven questions:-- "(1) Whether under section 16(1) of the Sindh Rented Premises Ordinance, 1979 rent is to be determined finally or tentatively and approximately?
(2) Whether such determined rent when it related to current payment as distinguished from arrears has to be or can be paid, to the landlord/landlady and is not to be deposited necessarily with Rent Controller?
(3) Whether the question regarding propriety/validity of the order of deposit under section 16(1) can be examined in an appeal against final order of eviction of the tenant?
(4) Whether on termination of an agreement of tenancy when the tenant remains to occupation as of right subject to liability under the Rent Restriction Law, the terms of agreement become irrelevant for regulating the tenancy?
(5) If not whether a security amount with the landlord in pursuance of stipulation in the expired agreement, can be and should be dealt with in any manner other than that provided in the agreement?
(6) Whether the use of security amount by the High Court for absolving the tenant in this case from liability of eviction for non-compliance with the order of deposit, is permissible in law?
If not, whether it would be permissible if the case is not of the above described default but is of a default in payment of rent to the landlord/lady."
11. The questions at numbers 5 and 6 related to the point involved in the present matter. It was held that after expiry of the agreement of tenancy the security deposit cannot be adjusted towards the defaulted rent. Adjusting the security deposit against the default is impermissible and unlawful. The default remains as such notwithstanding the security deposit with the landlord. It was further clarified that the covenant in each agreement as security will be construed according to the agreement itself. In the present case the agreement contains that the tenancy was for eleven months and the amount of advance security was not to be returned before expiry of that period of tenancy. Obviously, the tenancy agreement did not permit to utilize the security advance towards the monthly rent during tenancy period. Therefore, in view of the pronouncement of Honourable apex Court the contention of appellant's learned Advocate that default in payment of rent was to be covered by adjusting the security advance is without substance. Thus the security deposit could not be adjusted towards the arrears of rent absolving the tenant's liability from eviction for default in payment of rent.
12. It was also settled by the Honourable Apex Court through the above referred pronouncement that despite expiry of the period of rent agreement, the terms thereof do not become totally irrelevant for regulating the tenancy. It was the term of the tenancy agreement that monthly rent was to be paid in advance. In view of section 17(2)(1) Cantonments Rent Restriction Act, the tenant failing to pay or tender the rent to the landlord within 15 days of the expiry of the period of the time fixed for payment of rent in the agreement, tenant becomes liable to ejectment. When the terms of expired agreement govern the tenancy, the default in payment of rent within 15 days of the expiry of the time fixed for payment is valid ground for ejectment. Even if it is assumed that the terms of expired agreement do not regulate the tenancy, the non-payment of rent within 60 ,days from the date it becomes due, warrants eviction. In the present case, the rent for the period after 10th July, 1993 was deposited with the Controller of Rent Drig Road under Miscellaneous Rent Case No,18 of 1993 filed on 25-10-1993. There was no evidence of valid and proper tender or payment of rent before that. Thus the rent was not even paid or tendered before expiry of 60 days of the due date.
In view of above discussion, the ejectment order passed by the learned Controller of Rent Cantonment Board, Drig Road, Karachi was fully justified and does not suffer from any infirmity warranting interference. Consequently, the appeal fails and is dismissed.