' By the present second appeal the appellant/tenant seeks to challenge concurrent orders of the XV Civil Judge-cum-Controller, Karachi and the III Additional District Judge, Karachi, whereby he was ordered to be evicted from residential premises owned by the respondent landlord. I have heard Mr. Mushtaq Memon for the appellant and Mr. Mustafa Lakhani for the respondent.
2. The brief facts of the case are that the appellant had obtained residential premises on plot No, 688-C, Central Commercial Area P. E. C. H. Society, Karachi, on monthly rental of Rs, 320. A tenancy agreement (Exh. 5-A) was entered into between the parties on 14-3-1968, providing for a lease of 1 I months in favour of the appellant, commencing on 20-3-1968. According to paragraph 4 of the lease deed the appellant had paid a sum of Rs, 640 to the respondent as the security deposit for proper observance of the terms of lease and such amount shall be refunded to the appellant "on termination of the lease, original or extended, after she vacates and delivers the premises to the lessor (respondent) in good condition". The respondent filed an application under section 13 of the West Pakistan Urban Rent Restriction Ordinance (hereinafter referred to as the Ordinance), on 9-3- 1973 seeking eviction of the appellant on the ground of non-payment of rent and damage to the property. A written statement was filed in which preliminary objections were raised on the grounds of absence of relationship of landlord and tenant between the parties and misjoinder of causes of action. While the first objection was grounded on the fact that the lease agreement was executed by Rashida Begum as a landlord, the application for eviction was filed by her legal representatives by reason of her death. The fact of death of Rashida Begum is not contested before me. The second preliminary objection was grounded on the fact that originally two tenements had been rented out to the appellants and for such reason two separate applications had not been filed. The present application however, concerns one out of those two tenements. Default in payment of rent was also denied and causing damage to the property was also denied.
3. On the pleadings the following for issues were framed :- "(1) Whether the applicant is not the landlady, if so whether the suit is not maintainable ?
(2) Whether the opponent has committed default in payment of rent?
(3) Whether the opponent has committed acts of damage and destruction as alleged in para. 6 of the application ?
(4) What should the order be?
4. The Controller held that the tenant had committed a default but on the point of damage to the building he recorded a finding in favour of the appellant. Even on the issue relating to the relationship of landlord and tenant he held that such relationship did exist. The appellant challenged the judgment of the Controller before the Additional District Judge but without success and hence this second appeal.
5. Mr. Mushtaq Memon has raised the following contentions before me :-
(a) That the appellant had committed no default and in any case the security deposit of Rs, 640 should be applied, to accruing rents and if so, applied, the appellant would not be in default.
(b) That the agreement of tenancy was inadmissible in evidence and in any case on termination of 11 months of lease period the appellant became a statutory tenant so that the clauses of the agreement would not apply.
6. The agreement of tenancy provides for payment of Rs, 320 per month as rent in advance within 4 days of the rental month for which it is due. It is the case of the respondent that the appellant had committed various defaults and at the time- of filing of application under section 13 of the Ordinance he was in arrears of rent from 20-11-1969 to 19-2-1970. No rent receipts pertaining to this period for which default is alleged to have been produced by the appellant. However, Mr. Mushtaq Memon's contention is that after the expiry of 11 months from the date of commencement of lease viz. After 20-2-1969 the payment of rent was to be in accordance with the provisions of the Ordinance and not the lease agreement. We stated on such premises that if the security deposit of Rs, 640 was applied to the accruing rents and the statutory period of payment of rent as stated in subsection (2) of section 13 of the Ordinance is to be adhered to the appellant was not in default. In my view that argument is without substance. The lease agreement provided for refund of deposit only on the appellant vacating the premises in question and the patent position is that the appellant ha not vacated and is still in possession. Security deposit is therefore, not refundable and therefore, the question of application of deposit in satisfaction of accruing rents is out of question.
Moreover, the lease agreement manifest an intention of the parties that the security deposit has in the first instance to be applied for cost of any repairs to the house in question. In the case of Syed Shafiuddin v. Abdul Hakim Khan (1) it was held that the amount deposited by a tenant with the landlord by way of security to enforce compliance with the contractual obligation could not be adjusted towards rent. That view was taken in circumstances and facts similar to the facts in this case. The learned Advocate has however relied on the case of West Pakistan Co-operative Store Society v. Mian Muhammad Farooq & Brothers (2). The facts of that case are completely distinguishable because in that case security deposit had been obtained to offset a demand for increase in rent and for such reason the security deposit could be set off against accruing rents.
7. The agreement of tenancy has been attacked mainly on the ground that it was compulsorily registrable. This contention is equally unfounded because the agreement of tenancy was for 11 months, and did not require Be registration: Not only that but even if a tenant continues to occupy all {{FOOT NOTE}}
(1) PLD 1978 Kar. 149 (2) PLD 1978 Lab.. 28 {{FOOT NOTE}} ' premises after termination of the lease he is within the meaning of clause (i) of section 2 of the Ordinance to be held to continue in possession as the tenant. A Division Bench of the Lahore High Court in the case of Muhammad Sharif v. Muhammad Sharif and 3 others (1) examined that question and observed as follows :- "By according statutory recognition to the position of a tenant who continues in possession of the demised property after the termination of the lease the statute does not seek to introduce new terms and conditions of tenancy except continuing it beyond the stipulated period. Accordingly a tenant continuing in possession after the termination of the lease must be held to be governed by the same terms and conditions as were applicable to him under the agreement of tenancy which has terminated. In view of the fact that a tenant continuing in possession after the termination of the tenancy does so on the terms and conditions embodied in the previous agreement, it is clear that such a case falls in the first category mentioned in clause (i) of subsection (2) of section 13 of the West Pakistan Urban Rent Restriction Ordinance if the previous agreement contains any stipulation as to the date of payment of rent. Where therefore, if the agreement stipulated that the rent was to be paid in advance on the first of every month, and if it is not so paid or tendered, within fifteen days after the expiry of the specified date the tenant would be in default."
8. The last contention of Mr. Mushtaq Memon was that after the default the rent had been tendered by money order. This argument also does not advance the case of the appellant because it admits that a default was committed,
9. In the result this appeal is dismissed with costs but the appellant shall have 3 months' time to vacate the premises. {{FOOT NOTE}}
(1) PLD 1971 Lah. 610 {{FOOT NOTE}}