' KHURSHID AHMAD, J.-This' appeal is directed against the order of the learned Additional District Judge, Faisalabad, dated the 5th June 1971 by which the order of the learned Rent Controller, dated the 1st May 1970 was upset.
2. Briefly stated the facts of the case are that on 24-5-1966 the appellant filed a petition for eviction of the respondent from Shop No, P-9, Ward No, 3, near Jamia Masjid, Kutchery Bazar, Faisalabad which is in his occupation on a monthly rent of Rs,
60. The application was originally filed against Nisar Ahmad respondent No, 1 and the application proceeded on the ground of default from January to May 1960 and another ground for subletting of the same to some other person as an occupant. On 4-12-1963 a sum of Re. 2,000 had been advanced by the respondent according to which Rs, 30 was to be adjusted towards the monthly rent and Rs, 30 towards the said advance.
The whole amount of Ks. 60 was payable after the entire amount of Rs, 2,000 was to be adjusted in one half rent. On 30-6-1966 the respondent No, 1 filed written reply in which both the allegations were denied. On 7-9-1966 an order under section 13(6) on the Urban Rent Restriction Ordinance, 1959 was passed directing the respondent No, 1 to pay arrears of rent from January to May 1966 @ Rs, 60 p.m. Before 14-10-1966 and the future rent was to be paid before the 15th of each month. This order is said to have not complied with. On 21-12-1966 the learned Rent Controller framed the issues with regard to the allegation of subletting and default. After the examination of twowitnesses on 24-3-1967 an application was made on 14-9-1967 praying for permission to amend his petition and alleging that on 7-8-1967 respondent No, 1 had entered into a partnership with Muhammad Ayub respondent No, 2 and one Abdul Sattar and as such has sublet the shop in dispute. The learned Rent Controller on 30-10-1967 refused to allow the appellant to amend his petition so as to take the ground of subletting. However, the respondent No, 2 was allowed to be impleaded as a party in the case and as such an amended petition was filed including Muhammad Ayub and Abdul Sattar as respondents Nos, 2 and 3. A joint written reply was filed to the amended petition by the respondents. One of the objections taken was that the amendment made was not in conformity with the orders of the Court dated 30-10-1967. On 6-3-1968 the following preliminary issues were framed by the learned Rent Controller :-
(1) Whether the amended application is in accordance with the order of the Court, dated 30-10 1967? O. P. A.
(2) Whether the application is maintainable? 0. P. A.
(3) Whether the respondents paid Rs, 2,000 in advance as a rent of the disputed shop, if so its effect ? 0. P. A.
(4) Whether the respondents agreed to pay Rs,.60 per month as rent of the disputed shop, its effect? 0. P. A.
3. Under issue No, 1, the learned Rent Controller allowed the amended petition to be filed in accordance with the orders dated the 30th October 1967. Consequently the second amended application was filed on 14-1-1970 impleading only two respondents. No reply to the second amended application was filed. As regards the other issues the learned Rent Controller vide his order dated 1-5-1970 decided issued No, 2 in favour of the appellant and on issue No, 3 it was held that the respondent had committed the default in the payment of rent for the month of May 1966. It was also observed that the respondent had committed default in the payment of the arrears of rent as per directions of the Court. In nutshell the learned Rent Controller on the basis of the finding on issue No, 3 and two issues on merits as well as on the ground of not complying with the order of the Rent Controller passed under section i3 (6) of the Urban Rent Restriction Ordinance. 1959 the defence was struck off.
4. The respondents preferred an appeal and the learned Additional District Judge, Lyallpur (now Faisalabad) reversed the finding of the Rent Controller on all the three issues including the order of striking off defence. The learned Additional District Judge on the question of subletting observed that since it had accrued after filing of the petition that could not be made a ground for eviction. As regards the default in the payment of rent it was observed that the condition of the payment of rent in advance as per Exh. P-1 was not strictly adhered to between the parties and that the rent had been received by the appellant for 3-/4 months at one time and as such the finding of the learned Rent Controller on issue No, 2 on merits was reversed. The question of striking of defence of the respondent was also dealt with by the learned Additional District Judge. It was observed that the order for the deposit of rent passed under section 13(6) of the Urban Rent Restriction Ordinance was dated 7-9-1966 by which the respondents had been directed to deposit the monthly rent Rs, 60 from January to 1st of September 1966 and it was also observed that if for this period some rent had been paid by the tenant against a receipt the same will be adjusted against this amount. This order was held by the learned Additional District Judge to have been passed without looking at the pleadings of the parties and perusing the necessary evidence on record. The learned Additional District Judge had taken note of the plea of Nisar Ahmad respondent No, 1 that on 30-6-1966 he had paid a sum of Rs, 2,000 in advance and a sum of Rs, 30 was to be adjusted towards the rent while only a sum of Rs, 30 was to be paid each months This version of the respondent was not disputed by the appellant and was further supported by Exh. D/1 and the statement of Bashir Ahmad him of recorded on 24-3-1967. It was further observed that the order dated 7-9-1966 directing the respondent to deposit the rent Rs, 60 p.m. Was, therefore, held, unjustified. The respondent was, therefore, held to be liable to pay rent Rs, 30 upto 24th of June 1969, and therefore, neither the order passed under section 13(6) was legally correct nor the order of striking of the defence. None appeared on behalf of the respondent to whom registered P.
0. Were issued.
5. The learned counsel for the appellant has argued that the finding of the learned Lower appellate Court cannot be legally sustained for the following reasons :
(i) That the respondent was bound to pay the rent in advance as per the contract;
(ii) that order of striking of defence by the Rent Controller was justified and the terms of the tenancy cannot be varied. The amount of Rs, 2,000 could be legally treated as a security;
(iii) that any cause of action accruing after the fling of the application could be made a ground for eviction.
6. In support of his contentions, the learned counsel for the petitioner has relied on Zubeda Begum v. Mumtaz Hassan (1). In this case it was held that a security which was deposited for a specific purpose was not adjustable towards the rent. It was to be forfeited by the landlord in the circumstances contained in one of the clauses of the agreement. In the absence of such circumstances it was to be refunded on the expiry of the tenancy. Any amount paid in advance which was adjustable towards the rent could not be treated as a security and therefore this decision does not support the appellant rather in a way it goes against him. Similarly, in the case reported as Muhammad Amin v. Ahmad Bakhsh (2), the amount of Rs, 500 made by the tenant was to remain as security. There was no condition in the agreement making the tenant liable to ejectment as long as the arrears did not exceed the amount of security. Tenant not wishing to terminate the tenancy
(1) PLD 1975 Lah. 1504 (2) PLD 1976 Lah. 1302 so as to enable arrears to be adjusted towards amount of security but fighting ejectment petition tooth and nail meaning thereby not to terminate tenancy. It was found that the tenant was a defaulter and liable for eviction. This case also does not support the contention of the appellant. In the present case the amount was liable to adjustment towards the rent and therefore ought to have been taken into consideration while passing an order under section 13(6) or determined the default in the non-compliance of the order. It is therefore held that the respondent was not bound to pay the rent in advance as per the contract and he having paid a sum of Rs, 2,000 as an advance rent liable to adjustment towards the monthly rent, therefore, ought to have been taken into consideration in passing the order under section 13(6) or considering the default for the non- compliance thereof.
7. The third contention raised by the learned counsel has also no force as maturing of cause of action during the pendency of petition is altogether different from accruing a fresh cause of action during the pendency of petition. The learned Additional District Judge has rightly pointed out that it was a case of fresh sub-tenancy which could not be taken in the present eviction petition and the appellant ought to have filed a fresh petition. The learned Additional District Judge had given a specific direction in this behalf and one fails to understand why the appellant ignoring the observation of the appellate authority had sat over the matter for 8 years in pursuing the present appeal. This appeal has no force and is therefore dismissed. As the respondents have not come to contest the present appeal, there will be no order as to costs.