' SYED QALB-I-HASSAN, J.---Brief facts of the case are that respondent No,1 being landlord rented out Shop No,1, Plot No,12, Rose Arcade, Sector G-11, Islamabad to the petitioner/tenant vide lease agreement dated 4-7-2003 for a period of two years at the rate of Rs,10,000 per month. Thereafter, respondent No,1 filed an ejectment petition against the petitioner on the grounds Of default in the payment of rent. It was further narrated that the cheque issued for the rent of month of July, 2005 was dishonoured and thereafter the tenant has not paid the rent uptill the filing of the ejectment petition. The landlord also pleaded personal need, structural changes in the premises and non- payment of consumption bills in the ejectment petition.
2. The petition was controverted upon preliminary as well as factual grounds. It was pleaded that the instant petition was a counter blast of a suit titled "Mrs. Nelofar v. Abdul Razzaq" for declaration and permanent injunction and further pleaded that she never defaulted in payment of rent, the cheque issued on 5-7-2005 in favour of the landlord was not dishonoured rather the same was returned for the reason that the signatures were not in order and it was requested to the respondent to present the same again but he has not presented again and prayed for dismissal of the ejectment petition.
3. The learned Rent Controller, out of the divergent pleadings framed the following issues:-
(1) Whether the respondent is defaulter in the payment of rent? OPA
(2) Whether the respondent has violated the terms and conditions of the lease agreement, hence she is liable to be ejected? OPA
(3) Whether the petitioner has bona fide personal need of the suit shop? OPA
(4) Relief.
(3) Both the parties led evidence in support of their respective contentions. Learned Rent Controller, Islamabad accepted the ejectment petition on the ground of default in payment of rent.
4. The petitioner filed an appeal against the order of the learned Rent Controller, Islamabad under section 21 of Islamabad Rent Restriction Ordinance, 2001. The learned Additional District Judge, Islamabad upheld the order of the learned Rent Controller on the ground that the present petitioner failed to bring on record any documentary proof regarding the payment of rent from the month of July, 2005 till filing of the ejectment petition and dismissed the appeal.
5. That the instant Writ Petition has been filed to challenge the legality of order passed by Rent Controller and judgment passed by Additional District Judge, Islamabad.
6. I have heard the arguments of the learned counsel for the parties and perused the record.
7. Learned counsel for the petitioner at the outset stated that a huge amount of Rs,1,00,000 is lying deposited with the respondent which could be easily adjusted towards default and as such the default if any is of technical nature and both the courts below have not adverted to this legal aspect of the matter and passed the impugned order and judgment against the law laid down by the Supreme Court in Muhammad Yousaf v. Abdullah 1980 SC 298. The learned counsel further argued that Rent Controller was bound to look into the security deposit made by the petitioner to the respondent and should have adjusted the same while passing order under section 17(8) ibid. Therefore, the order passed by the learned Rent Controller, Islamabad dated 8-4-2006 is also illegal, void and of no legal effect.
8. Learned counsel for the respondent contended that the amount deposited as security was to be refunded at the time of handing over of possession of the demised premises and security deposit is to be applied in the manner provided in the agreement and not otherwise. The principle regarding the adjustment of security deposit was laid down by the Hon'ble Supreme Court in Mrs. Zarina Khawaja v. Agha Mahboob Shah (PLD 1988 SC 190) as follows:-- "Whether the use of security amount by the Court for absolving the tenant in the case from liability of eviction for non-compliance with the order of deposit, is permissible in law?
' The security deposit in this case is to be applied by the landlord, according to the terms quoted earlier, to compensate himself at the time of the tenant handing over possession to him, for unpaid rent and/or damages caused by the tenant to the property at any time. Its application by the court for absolving the tenant-respondent from liability to make a deposit under section 16(2) is impermissible and unlawful. The default remained intact notwithstanding the security deposit. The covenant in each agreement as to security will be constructed according to the agreement itself.
The same would have been the result if the default would have been in the payment of rent to the landlord and not a deposit under section 16(2). The security deposit will be applied in the manner provided in the agreement and not otherwise. In this case it could not be applied to adjust the general default alleged against the respondent, because the tenancy agreement between the parties did not permit it."
9. Now the question that whether the security deposit can be applied in the manner provided in the lease agreement admitted between the parties. The relevant clause of the lease agreement reads as under:- ' That the lessee shall pay Rs,1,00,000 (Rs,one lac only) in the following manner:- ' Rs,50,000 (Rs,Fifty thousand only) have been paid at the time of execution of this agreement. The lessor hereby acknowledges its receipt.
' Rs,50,000 shall be paid within three months from the date of execution of this agreement by the lessee.
'This amount is refundable and shall be refunded to the lessee as and when the lease agreement is terminated.
' Rs,10,000 (Rs, Ten thousand only) has been paid as advance rent for the current month. Total amount received by the lessor comes to Rs, 60,000 (Rs, Sixty thousand only).
10. From the perusal of the lease deed it is evident that the amount of security deposit was to be refunded to the lessee as and when the lease agreement is terminated. This point was also examined by the Hon'ble Supreme Court in the case of Mst. Saidan Khatoon v. Muhammad Ahmad Latifi (PLD 1990 SC 389) and at page 393 the following was observed:- "In the case in hand the term under which the security deposit was made specifically states that it cannot be adjusted against the future rent and it could be returned only after the premises is vacated in good condition. Therefore, the High Court was not right when it held that the amount of security could be adjusted against the rent due during the occupation of the premises by the tenant or before surrender of vacant possession of the premises as it would amount to changing the terms of agreement on which the premises is held by the tenant."
11. Now in view of above said judgments of Hon'ble Supreme Court and terms of rent agreement the amount of Rs,1,00,000 which was deposited as security was to be refunded to the petitioner at the time of termination of the lease deed and amoimt of security deposit was not adjustable towards the rent. It being so, the petitioner, now cannot ask for adjustment from said amount towards rent.
This would simply amount to change the terms of the agreement. Relying upon the dictum laid down by the Supreme Court, I hold that the security amount, could not be adjusted towards the payment of rent for which the default was committed.
12. The learned counsel for the petitioner has relied upon a number of judgments and contended that in the similar circumstances security deposit which could be adjusted towards the default of rent, if any. However, the learned counsel for the respondent stated diat it has already been observed by the Hon'ble Supreme Court in Farman Akhtar v. Haji Muhammad Sharif (1989 SCM R 592) that now no conflict of law exists on the adjustment of security same having been resolved by judgment of the Hon'ble Supreme Court in Zarina Khawaja's case reported in PLD 1988 SC 190.
13. Now it is established on the record that the petitioner issued a cheque dated 5-7-2005 Exh.A1 for the month of July, 2005 and the same was dishonoured and according to the lease agreement, the tenant was bound to pay the monthly rent before 5th of every month but the cheque issued in lieu of payment of rent dated 7-5-2005 was dishonoured and she has also failed to pay the future rent from July, 2005 to November, 2005.
14. In view of what has been discussed, the petitioner has committed default in payment of rent and both the Courts have rightly decided the issue of default against the petitioner. However, as the petitioner is doing business therefore three months time is granted to the petitioner for handing over vacant possession of the shop in dispute to the respondent subject to payment of security deposited with the respondent. Writ .