ZIA PERWAZ, J.--- This petition is directed against the impugned order, dated 12-10-2002 of the II Additional District Judge, Karachi South in F.R.A. No,928 of 2001 (old No,928 of 2001), dismissing the appeal filed against the order of the learned Rent Controller and upholding the order of eviction.
2. Brief facts of the case are that the petitioner is tenant of respondent No,1 with respect to Flat No,5-A/3, Block A, tornich Residence, Plot No,COM-03, Block 2, Clifton Karachi on a monthly rent of Rs,6,500. Agreement of Tenancy was executed on 1-7-1994 and was valid for a period of six months.
At the time of execution of the agreement, the tenant deposited a sum of Rs,39,000 with the landlord/respondent No,1 as fixed deposit refundable to the tenant/petitioner on expiry of tenancy period at the time of handing over peaceful vacant possession of the premises to the landlord subject to adjustments of any dues, losses or damages. On expiry of the period of six months, the respondent No,1 claimed to have requested the petitioner to hand over vacant possession of the premises and on his failure to do so, an application under section 15 of the Sindh Rented Premises Ordinance, 1979 was moved seeking eviction of the petitioner on the ground of default as well as personal use. When the case came up for recording of petitioner's evidence he did not appear for cross-examination. After affording opportunities, a last chance was allowed on 29-11-1997. He failed to avail the same. Yet another final chance was allowed on 22-12-1997, and on his failure to appear for cross-examination, his side was closed on 10-1-1998. However, on an application moved on behalf of the petitioner for reopening of his side, the order dated 10-1-1998 was recalled subject to appearance of the petitioner for cross-examination on the next date of hearing. Eventually, when the petitioner failed to appear for cross-examination on 14-2-1998, the side of the petitioner was closed.
3. On the basis of the pleadings of the parties, the learned Rent Controller framed the following points for consideration:-- "(1) Whether the opponent has committed any default in payment of rent?
(2) Whether the applicant requires the premises in question for personal bona fide need?
(3) What should the order be?"
4. As the findings of the learned Rent Controller on Point No,1 was in the affirmative treating the Point No,2 as redundant, he allowed the application under Point No,3 and directed the tenant/petitioner to hand over peaceful possession of the premises to the landlord/respondent No,1. Those issues were re-examined in appeal and on the basis of evidence on record finding of the trial Court on issue No,1 was maintained. Finding on the second issue as to the personal requirement of the landlord was not given by the learned trial Court and treated as redundant. The appellate Court appraised the evidence and recorded a finding in favour of the landlord.
5. In support of this petition the learned counsel for the petitioner argued that after the expiry of the tenancy agreement executed between the parties, the petitioner became statutory tenant.
Therefore, the sum of Rs,39,000 was deposited by the petitioner with the respondent No,1, towards security was adjustable against the monthly rent for the defaulted period. He submitted that the two Courts below fell in serious legal error by holding that the fixed deposit amount is only refundable on vacation of the premises. That on filing of the ejectment application and denial of extension of tenancy period beyond six months, the landlord became indebted to the petitioner and as such the fixed deposit amount of Rs,39,000 became a trust money with the landlord and for all intend and purposes, any alleged default of six months period cannot be attributed as a defaulting act on the part of the petitioner.
6. On the other hand, Ms. Soofia Saeed, learned counsel for the respondent No,1, has fully supported the judgments of the two Courts below. She referred to the evidence on record to establish the personal need of the respondent No,1 and has prayed for dismissal of this petition.
7. Admittedly, the tenancy agreement was executed for a period of six months from 1st July, 1994 to 31-12-1994 for which the petitioner paid the rent regularly. However, from the month of February, 1995 to September, 1995, the petitioner failed to pay the monthly rent to the respondent No,
1. This fact is not denied by the learned counsel for the petitioners. However, it is contended that on expiry of the tenancy agreement, the petitioner became statutory tenant of the respondent No,1 and that the amount of Rs,39,000 deposited with the respondent No,1 as fixed security deposit, became adjustable in future rent. It is now trite law that the amount of security deposited is adjustable in the manner and A for the purpose it was originally deposited under the terms of the rent agreement, if it is not in violation of the rent laws.
8. Both these questions have been considered in the case of Mrs. Zarina Khawaja v. Agha Mahboob Shah PLD 1988 SC 190 wherein it was held as under:-- "It needs to be clarified that the four judgments of this Court reported in 1980 Law Journals and one in 1985, though seemingly containing some elements requiring further explanation, are not mutually exclusive. They are in the cases of Muhammad Yousuf PLD 1980 SC 298; Muhammad Younus Malik 1980 SCMR 184; Alif Din 1980 SCMR 767, Mirza Abdul Aziz Beg 1980 SCMR 834 and Sheikh Abdus Sattar PLD 1985 SC 148. One case of 1981 viz. Muhammad Baqar Qureshi v. Mst. Razia Begum 1981 SCMR 18 may also be included. In the first case the concept of holding over in the general law of Transfer of Property Act (No,IV of 1882) was accepted, as lawful vehicle of keeping the terms of an expired agreement alive subject of course to repugnancy with any provision of the rent law to the contrary. In particular, the covenants as to advance rent and date of payment in the expired agreement were enforced and thus, the agreement was continued. Same is the position in the third case. In both of them, Muhammad Arhraf v. Muhammad Sharif PLD 1971 Lah. 610, a case of Lahore High Court, was approved. In the second case though the tenancy, after expiry of the agreement, was termed as 'statutory' and holding over concept was kept excluded but the terms of tenancy as to rate of rent were nevertheless taken from the so-called expired agreement. Its naming as 'statutory rent' was not meant to obliterate its source being the same agreement. And, it is, important to emphasize that at page 306 the possibility of expired agreements having terms not inconsistent with the rent law, has been visualized, though stated to be exceptional. Thus, such terms, would continue to operate. We may add that in the ultimate analysis such tenancies which are controlled by rent law are in any case composite; having both statutory and mutually agreed terms; and, when an expired agreement is kept alive, this composite nature does not change, though law of holding over is added to the rent law and the agreement. The fourth case recognizes advance rent and security deposited as possible subjects of an agreement enforced by the rent law. The fifth case goes in line with the third case and not beyond it but in a different context. The remaining cases also do not change the position.
Thus, it can safely be said that the rent laws permit all covenants in agreements, alive or expired, which are permissible under the general law and not inconsistent with or repugnant to that special law; and enforces the same accordingly whenever it is so required under that law. In addition, they also remain operative for other purposes permitted by the general law. The fourth question is answer in the negative.
The answer to the fifth question has already been rendered. A provision in the expired agreement regarding security deposit for protecting the landlord's interest, if otherwise lawful under the general law, cannot be varied under the rent law and has to be applied for the purpose provided in the agreement and not otherwise."
9. In a recent case reported as Mst. Fatima Gul v. Malik Saeed Akhtar PLD 2005 SC 34, a Bench of the Honourable Supreme Court on the issue of adjustment of rent for the defaulted period from the security deposit has held as under:-- "So far the third contention that monthly rent for the defaulted period could have been adjusted from the security deposit has also no merit considering the law laid down by this Court in (i)
Khadim Hussain v. Nasir Ahmad 2003 SCMR 1580 (ii) Mrs. Zarina Khawaja v. Agha Mahboob Shah PLD 1988 SC 190 considering also the fact that there was no covenant in the tenancy agreement that in case of default, adjustment of payment of rent could be made from the security deposit. As there was no covenant in the tenancy agreement for such adjustment and no advance rent was deposited with the respondent/landlord hence no adjustment could be made towards rent of defaulted period."
10. Admittedly, the tenancy between the petitioner and the respondent No,1 was governed by the Tenancy Agreement, dated 1-7-1997, clause 3 whereof is as under:-- "3. That the tenant has paid Rs,39,000 (Rupees thirty-nine thousand only) on account of advance rent for six months commencing from 1st July, 1994. The tenant has also deposited Rs,39,000 (Rs,thirty-nine thousand only) with the landlord/landlady being the fixed deposited which shall be refunded to the tenant at the time of handing over the peaceful and vacant possession of the said premises to the landlord/landlady subject to the adjustment of any dues, losses or damages."
11. Thus, according to the mutual agreement of the parties to the above tenancy agreement, the amount of Rs,39,000 deposited with the landlord was for the protection of the landlord against any outstanding dues, losses or damages and it was not meant for adjustment of rent defaulted period. Since this clause is not in any way violative of the rent laws, therefore, in view of the law laid down in the above cited case of Zarina Khawaja, even though after expiry of the tenancy agreement between the parties, therefore, the petitioner became statutory tenant of the respondent No,1 the clause which is regarding security deposit for protecting the landlord's interest continues to remain in force and effective as it is not otherwise unlawful under the general law. It cannot be varied under the rent law and has to be applied for the purpose provided in the agreement and not otherwise. Therefore, the amount of security deposit which under the clause under consideration was not liable to be adjusted towards rent, cannot be adjusted towards arrears of rent on the expiry of the agreement.
12. There is sufficient material produced in evidence to support the personal need of the respondent. In addition to the pleadings, it has been brought on record in evidence that the respondent is a Government servant and is residing in Government accommodation for the past about 25 years. He is now in need of his own house.
13. The scope of exercise of constitutional jurisdiction in we petitions has been examined by the Honourable Supreme Court in the case of Muhammad Lehrasab Khan v. Mst. Aqeel-un-Nisa and others 2001 SCMR 338, wherein it has been held that ordinarily the High Court in its Constitutional jurisdiction would not undertake to reappraise the evidence in rent matters to disturb the finding of facts but it would certainly interfere if such findings are found to be based on non-reading or misreading of evidence, erroneous assumptions of facts, misapplication of law, excess or abuse of jurisdiction and arbitrary exercise of powers. In the interest can none of the above grounds is involved.
14. In view of the above discussion and the case-law cited above, the contentions of the learned counsel for the petitioner, have no force and accordingly the petition is dismissed together with the pending application. The petitioner shall vacate the demised premises within 30 days from the passing of this judgment.