1. ' DORAB PATEL, ACTG. C. J.-By a written agreement dated 1-1-1975, the appellant took a lease of the respondent's house for a period of eleven months only. The house is situated in Karachi and the monthly rent was Rs, 250, but under clause V of the lease agreement, the rent was to be paid "in advance on the first of each month." Further, at the time of the execution of the agreement, the appellant had deposited one month's advance rent, and he had also deposited a sum of Rs, 825 as security for damage which was to be refunded to him when the tenancy was terminated, if no damage had been caused.
2. ' The respondent wanted the house for his own use and occupation, therefore, on this allegation and on the further allegation that the appellant had committed default in the payment of rent for the months of September and October, 1975, be filed an eviction application on the 4th of November, 1975, against the appellant for his eviction on the ground that he had committed default in the payment of rent and on the ground of personal requirement. The appellant contested his eviction, and for the purpose of this appeal, it is sufficient to state that on the question of default in the payment of rent, his plea was that he had paid rent for September, 1975 to the respondent's father, who had not given any receipt for the same, therefore, he had sent the rent for the next month through one Muhammad Ismail, who was instructed to pay the October rent, only if the respondent gave the receipt for the rent of September, which had been paid to his father. As the respondent did not give the receipt for the month of September, on the false plea that rent for September had not been paid, Muhammad Ismail did not give him the October rent either. Therefore, the appellant later forwarded the October rent by a money order which was refused.
3. ' Although the appellant's defence turned on Muhammad Ismail's evidence, he did not examine this witness. On the other hand, the respondent examined himself and his father, and they both denied the allegation of the appellant that be had paid the rent of September for which a receipt had not been issued. In these circumstances, it is not surprising that the Rent Controller disbelieved the appellant's defence and held that he had committed default in the payment of rent of two months, namely, September and October, 1975. He however, rejected the respondent's claim that he required the house in his own occupation. Accordingly, he ordered the appellant's eviction on the ground of default in the payment of rent.
4. ' The appellant challenged the Rent Controllor's order in an appeal in the District Court, Karachi, but as the learned Additional District Judge, who heard the appeal, agreed with, the findings of the Rent Controller, he dismissed the appellant's appeal.
5. ' The appellant then filed a second appeal in the Sind High Court. After a careful examination of the evidence, the learned Judge was inclined to the view that the respondent had proved that he required the house for his own occupation, but, as rightly pointed out by him, the respondent was not entitled to seek eviction on this ground before the expiry of the lease, and as the eviction application had been filed on the 4th of November, 1975, before the expiry of the lease period, the learned Judge rightly held that the respondent's claim, to evict the appellant on the ground that he required the demised premises for himself, was premature.
6. ' Next, as to the question of default, he re-examined the evidence and agreed with the concurrent findings of the Courts below that the appellant had failed to pay rent for two months. But, he noted the fact that the appellant had deposited one months rent in advance, therefore, he rightly held that the appellant had committed default in the payment of one month's rent only, and as the default was of only one month, the obvious question which needed examination was whether the discretion vested in the Court under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter called the said Ordinance), should be exercised in the appellant's favour as the period of default was of one month only, and because the learned Judge held that the appellant's explanation of his alleged payment of rent for the months of September and October, 1975 was false, he declined to exercise his discretion in the appellant's favour, and, therefore, by his judgment dated 9-10-1977, he ordered the appellant's eviction with a direction that the security deposit of Rs, 825 should be refunded to the appellant, when he vacated the demised premises.
7. ' The appellant filed a petition for leave against the judgment of the learned Judge. He challenged in the petition the concurrent findings of the three Courts that he was in default in the payment of rent. He submitted in the alternative that even if he had not paid the rent for September, 1975, (art allegation which he denied), the amount thus due had to be adjusted against the deposits made by him at the time of the execution of the lease agreement, therefore, he was not in default in the payment of rent. Leave was granted only to examine this second submission.
8. ' Mr. Akhtar Mahmood, who appeared in behalf of the appellant, attempted to re-agitate the question of the appellant's default in the payment of rent, but as we indicated earlier, the concurrent finding of the three Courts below is supported by evidence, and we see no error of law in this concurrent finding. In any event, leave was not granted to examine this question, therefore, we would only examine the question for which leave was granted.
9. 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.
10. ' Mr. Akhtar Mahmood then submitted that even if the appellant's defence about the payment of rent for the months of September and October, 1975 was rejected, the appellant was still not in default within the meaning of section 13 of the said Ordinance, because, according to clause (i) of subsection (2) of section 13 of the said Ordinance, a temant is in default in the payment of rent only if he "has not paid or tendered rent due by him in respect of the building or rented land, within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord, or in the absence of any such agreement within sixty days from the period for which the rent is payable As the eviction application was filed on the 4th of November, 1975, learned counsel submitted that, at the highest, the appellant may have been late in the payment of rent, but he was not in default, because the period of sixty days, referred to in the words quoted, had admittedly not expired when the respondent had filed his eviction application. The argument is misconceived, because of the express covenant in the lease agreement between the parties. The appellant had undertaken to pay the rent "in advance on the first of each month." And, as the eviction application was filed for default in the payment of rent during the pendency of the lease agreement, the question of the appellant's default has to be determined solely in the light of the covenant . To pay rent in advance, which was expressly accepted by him. Therefore, the rent of September had to be paid within fifteen day of the first of September and the rent of October 'within fifteen days of the 1st of October, 1975 and as admittedly, this was not done, the Lower Courts were right in holding that the appellant had failed to pay rent for two months. But, they were further of the opinion that the appellant was in default in the payment of rent' for two months and Mr. Mukarim attempted to defend this finding: We cannot agree with Mr. Mukarim's submission, because the advance rent deposited by the appellant had to be adjusted against the rent due from him, an therefore, as rightly held by the learned Judge, the appellant was in default in the payment of rent of October only. Now, the only question which remains for consideration is whether the High Court should have exercised its discretion under section 13 of the said Ordinance in the appellant's favour.
11. ' As the default was admittedly for one month only, the learned Judge could easily have exercised discretion in the appellant's favour, and Mr. Akhtar Mahmood naturally submitted that the view taken by the learned Judge was very harsh. It may be that a different view might have been better, but the question was in the discretion of the learned Judge, and we cannot interfere with a discretionary order unless the discretion is exercised perversely or in a cursory manner. Now, in exercising discretion against the appellant, the learned Judge has pointed out that the appellant was not entitled to the exercise of the Courts' discretion, because he had persisted in raising a false defence. The view thus taken is a possible and reasonable view and it is also not irrelevant to point out here that the learned Judge was impressed by the respondent's claim that he required the demised premises for himself, but he rejected that claim on the technical ground that the respondent's claim had not matured into a cause of action on the date of the eviction application.
12. In this background, it cannot reasonably be contended that the learned Judge exercised his discretion erroneously, much less that he exercised it perversely against the appellant.
13. ' The appeal is without merit and is dismissed, but without costs. We give the appellant four months' time to hand over vacant possession of the demised premises provided be continues to deposit the monthly rent.