1. ' Respondent/landlady filed application for eviction on 3-4-1976 under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 against the appellant/tenant on the ground of default in the payment of rent from March, 1975 to February 1976 which comes to Rs, 2.808 at the rate of Rs, 235 per month. The demised premises are a tenement No, 124-Z situate in commercial Area, Kathiawar Cooperative Housing Society, Adamji Nagar, Karachi. The tenant contested proceedings before the Rent Controller admitting tenancy and rate of rent but denied default on the plea that the landlady avoided accepting monthly rent on one pretext or the other but had finally agreed that the rent should be deposited in her account with Habib Bank, which was done by the tenant, hence no default has been committed. Issue with regard to the default was framed and on behalf of the landlady, her brother Mohammad Siddiq, who is also her attorney has been examined. The tenant examined herself. Some documents were also produced. After evaluation of evidence the learned Rent Controller finally passed order of ejectment by giving a positive finding on the issue of default in favour of the landlady vide his order dated 29th January, 1978.
2. ' The tenant went into appeal which was dismissed by learned Additional District Judge vide his judgment dated 1-4-1979 upholding the order of ejectment passed by the Rent Controller.
3. Appellant/tenant has therefore filed this second appeal.
4. ' Mr. Z. U. Ahmed, counsel for the appellant has contended before me that there is no default in this case for the reasons firstly that there was no agreement of tenancy, in the absence whereof, the tenant was obliged to pay the rent within 60 days from the period for which the rent is payable and in the result application for ejectment filed on 3-4-1976 was premature and not competent as rent for January and February, 1976 had not become due, which has been claimed as part of arrears.
5. Secondly that there is deposit of Rs, 2,400 of the tenant with the landlady, which is in the form of advance rent and is to be adjusted towards the arrears. Thirdly that the tenant had deposited the rent in the personal bank account of the landlady, which was done with her consent, otherwise the tenant could not have any means at her disposal to find out the secret account number of the landlady Fourthly mode of acceptance of rent by the landlady was periodical in nature and the rent used to be collected by the landlady at hers convenience.
6. Now so far the first contention, as stated above, is concerned, there appears to be no dispute between the parties on the point that there was' no agreement in writing between the parties regulating the terms and conditions of tenancy. However, the learned counsel for the respondent has pointed out that there are about 59 receipts of rent produced by their tenant/ 4 appellant which are on the record as Exhs. 11/1 to 11/59. These are printed receipts issued on behalf of the landlady on the back of which terms of tenancy are printed. It is further pointed out that the first condition is to the effect that the tenant shall pay rent to the landlord or his agent before 10th day of each month, failing which he shall be liable to pay the same with an increase of 10% on the amount due in lieu of the cost of collection. On this basis it is contended on behalf of the landlady that there is an agreement of tenancy and the rent payable is in advance for the same month before 10th of that month and this practice has been followed consistently by the parties and further that the receipts produced by the tenant also indicate the fact that she has been paying rent regularly before 10th of each month with the exception of one or two receipts showing default having been condoned by the landlady as a measure of indulgence on her part. The counter argument is that there is no express agreement in writing and the conditions printed on the back of receipts cannot be deemed to be proper agreement in writing for the reason that these receipts are not signed by the tenant showing that such terms and conditions printed therein are binding on her. It has also been further pointed out that mostly the receipts are signed on behalf of the landlady by someone else with the exception of a few which are signed by the landlady herself. It is further contended that the receipts produced by the tenant are not signed by the tenant herself and secondly counterfoils of receipts have also not been produced showing that they have been signed by the tenant. It is argued that there is no evidence on the record to show that tenant has bound down herself with the terms and conditions printed on the back of receipts. The perusal of the receipts further indicate that there are many receipts which show that rent has been paid after 10th of that month and accepted on behalf of the landlady and there are also receipts showing rent paid and accepted in default for more than one month.
7. ' In this context it was further argued that the condition on the back of the receipts that if the rent is not paid before 10th of the month, then tenant shall be liable to pay the same with an increase of 10% on the amount due in lieu of the cost of collection is in contravention of the provisions of the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter to be referred as the said Ordinance) as the said Ordinance expressly prohibits the landlord from recovering anything in excess of the fair rent. My attention has been drawn to section 7 of the said Ordinance which expressly prohibits the landlord to recover from the tenant payment of any fine, premium or any other like sum in addition to the rent. It also appears from the receipts produced on the record that the landlady had never carried out the second part of the first term printed on the back of the receipts and never recovered 10% on the amount due as cost of collection of rent when rent was paid by the tenant after that month on many occasions. Furthermore there is no evidence on the record that this penal clause in the terms of the tenancy on the back of the receipts was ever intended to be followed. In such circumstances I feel that it was not the intention of the parties to make the terms of the tenancy printed on the back of the receipts to be binding on them and in fact there was no agreement of tenancy executed by the parties but only it was agreed that monthly rent which was paid previously at the rate of Rs, 210 was subsequently raised to Rs, 235 and that was the rate on which the rent was paid and accepted. For these reasons I hold that in the absence of the agreement of tenancy, the tenant is a statutory tenant under the Ordinance and is entitled to the protection of 60 days as envisaged under section 13 (2) (i) of the said Ordinance. In these circumstances the contention of the learned counsel for the appellant is correct to the extent that when the application for ejectment was filed on 34-1976, rent for the month of February, 1976 was not due as contemplated under the provision of law quoted above.
8. ' The second contention raised on behalf of the appellant is that the tenant had deposited an advance of Rs, 2,400 for which the receipt has been issued and produced on the 'record as Exh.
8. It is submitted on behalf of the tenant that this advance of Rs, 2,400 was deposited by the tenant with the landlady as advance money to be adjusted against the payment of rent. The issue of this receipt is not disputed on behalf of the landlady but it is, stated that this advance was taken from the tenant as security deposit and was not intended to be adjusted against the rent. On this point the case of the tenant is that after this deposit was made on 18-5-1969, the landlady had promised to have this amount adjusted against the payment of rent. It is also contended that the landlady has not come in the witness-box as such the assertion made by the tenant with regard to the assurance of the landlady for the adjustment of the advance deposited to be adjusted against the payment of rent is established and not challenged. The record shows that the plea with regard to the advance has not been taken specifically in the written statement and on behalf of the landlady, her brother Muhammad Siddique has been examined, who is her attorney as well as rent collector.
9. While he was in the box before the Rent Controller the question with regard to the advance was suggested to him and he has admitted that the tenant has paid Rs, 2,400 and such receipt Exh. 8 has been issued but has asserted that the same is security deposit not meant to be adjusted against the payment of rent. It is contended on behalf of the landlady that since the issuance of receipt is not disputed and is admitted by the brother of the landlady in his evidence there was no need to examine his landlady on this point. The perusal of the receipt Exh. 8 clearly shows that Rs,.
10. 2,400 have been accepted from the tenant as "advance security deposit". Both the words advance and security have been used in this receipt. The receipt C is signed on behalf of the landlady by someone else. Witness Muhammad Siddique has stated before the Rent Controller about this receipt that the said amount was deposited as security deposit and the said amount is with them, It is further stated by him that it is correct that he did not adjust the amount of Rs, 2,400 towards the arrears of rent of Rs, 2,808 as the said amount of Rs, 2.400 was security deposit and not meant for adjusting the arrears of rent. He has not further. Clarified chat if this amount so deposited by the tenant was not advance and was not meant, to be adjusted against the rent, then for what purpose it was retained as security deposit. No doubt very clear assertion was made by the tenant when she was examined subsequently after evidence of Muhammad Siddique was recorded before the Rent Controller and she had stated that the landlady had assured her that this amount of Rs, 2,400 deposited would be adjusted against the rent after six months. Now whatever evidence available on the record, even when the landlady has not been examined on this particular point, it is clear that both words advance and security have been used in the receipt Exh. B. There is no mention in the terms of tenancy, printed on the back of the receipts with regard to the security. In these circumstances it is to be gathered as to what was the intention of the parties. It is contended on behalf of the landlady that if the intention was that this amount was accepted as advance to be adjusted against the payment of rent after six months as alleged by the tenant, then why the tenant did not insist on this adjustment and continued paying the rent after six months of the issue of this receipt on 18-5-1969. Even in the absence of the examination of the landlady on the point in the circumstances stated above, it is obvious from the record that on 18-5-1969 when the receipt Exh. 8 was issued showing deposit of Rs, 2.40 by the tenant with the landlady as advance security deposit a second receipt was also issued on the same date showing acceptance of rent by the tenant from 16-10-1968 to 31-5-1969. This indicates that rent for about 7 months accumulated was paid in lump sum and accepted by the landlady in lump sum and on the same day the tenant has paid the deposit of Rs, 2,400. From this fact that rent in default was paid and accepted on the same day when deposit of security of Rs, 2,400 was accepted, it appears that since the inception of tenancy in October, 1968 as claimed by the tenant in her deposition no rent was paid by her and for the first time on 18-5-1969 she paid rent in lump sum for 7 months and on the same day she has made a deposit of Rs, 2,400 with the landlady, which indicates the intention that the deposit was accepted from her as advance to forestall recurrence of default in future. Thereafter the receipts show that regular payments were made by the tenant to the landlady in the years following that period. There are receipts showing payment of rent right up to February, 1975. Receipt Exh. 9 . Shows that rent for January and February, 1978 was paid together and accepted by the landlady. This is the last receipt on the record. Default claimed in the application for ejectment is for the period from March 1975 to February, 1976. It therefore appears to me on the basis of evidence on the record that deposit of Rs, 2,400 was accepted from the tenant by the landlady to secure payment of rent in an eventuality when default is committed and in such circumstances the tenant is entitled to ask for adjustment of Rs, 2,400 against the payment of rent for the period of default alleged. Now the last receipt on record Exh. 9 shows that rent was tendered and accepted for January and February 1975 at the rate of Rs, 235 per month. The arrears claimed in the application for ejectment are for the period of March 1975 to February, 1976 at the rate of Rs, 235 per month, which comes to Rs, 2,808 as claimed in the application for ejectment before the Rent Controller. If the amount of Rs, 2,400 is adjusted, then the balance outstanding against the tenant is Rs, 408, which is less than amount of rent for two months which comes to Rs, 470. As held by me above in The absence of agreement of tenancy, the tenant is a statutory tenant as such she is entitled to the protection of 8Q days as contemplated under section 13 (2) (i) of the said Ordinance and the rent for the month of February, 1976 was not due when the application or ejectment was filed on 3-4-1976 as such it cannot be said that the rent for the month of February, 1976 was due and the default for one month in the payment of rent, in the circumstances its stated above could have been rightfully condoned by the Rent Controller in exercise of his judicial discretion, which he has not done and is being done now.
11. ' It was next contended on behalf of the tenant that the landlady had permitted her to deposit arrears of rent in her personal Account No, 721/0 with Habib Bank which was done and the landlady was informed by the tenant in writing. Such plea has been taken by the tenant in the written statement and it is contended that the landlady has not examined herself to deny the assertion that she had permitted the tenant to deposit money in her account otherwise the tenant was not in a position to know the secret account number of the landlady. It appears that on this point it can be said that the landlady could not be deemed to have been taken by surprise because this plea was taken in the written statement by the tenant. As such the landlady should have examined herself and denied the allegation if she wanted to do so. Anyhow brother of the landlady who has been examined before the Rent Controller, has denied the allegation made by the tenant that such permission was given by the landlady to the tenant to deposit arrears of rent in her account. The deposit in the Bank account of the landlady of the arrears of rent is not disputed but the permission is disputed and it is further contended that this deposit was made by the tenant unauthorisedly and without permission of the landlady after the ejectment application was filed. The tenant had deposed before the Rent Controller that after February, 1975 she tendered rent but it was not accepted and then she sent two cheques which are on the record as Exhs. 12 and 13. Exh. 12 is a cheque issued on 7-5-1976 showing payment of rent for months of March to May 1976 and Exh. 13 is the cheque issued on 11-6-1976 showing repeat of the payment including payment of rent of June 1976. It is stated by the tenant that both these cheques were returned and thereafter the landlady allowed her to deposit the arrears of rent in her Bank account which she immediately complied with by making deposit of Rs, 3,995 on 8-7-1976 and after having done so she also informed the landlady by letter Exh, 3 which is dated 9-7-1976. The contention on the other side is that these deposits were made unauthorisedly by the tenant after application for ejectment was filed in the Court on 3-4-1976. The dates of the cheques alleged to have been returned, namely orders and deposit of arrears in the Bank account of the landlady indicate time after the date of filing of application for ejectment. As against this the plea of the tenant is that she did not know about the filing of application on 3-4-1976, as such she made sincere efforts to tender the rent which was not accepted and subsequently she was served with the notice from the Court of the Rent Controller about the filing of the ejectment proceedings. She has produced the copy of the notice which is Exh. 18 on the record and this copy indicates that she was informed about the date of hearing of the case as 9th August, 1976. The record of the Rent Controller further shows that Vakalatnama was filed by the counsel for the tenant in the Court on 9th September, 1976: In these circumstances it can be said that the contention raised on behalf of the landlady that the tenant had deposited the rent in the Bank account of the landlady unauthorisedly after filing of the ejectment application is not tenants for reasons ; firstly that it was not within the knowledge of the tenant that ejectment application was filed on 3-4-1976 and secondly that the deposit of arrears of rent in the Bank account of the landlady is not disputed but assertion is made on behalf of the landlady that this was done without authorisation for which the landlady has not examined herself to deny the allegation that she did not permit the tenant to do so nor is there any other evidence on the record to refute this allegation. The only plea taken in this regard on behalf of the landlady is that the tenant had deposited arrears of the rent in her Bank account without permission and that too after filing of ejectment application. The record clearly shows as stated above that she had no knowledge of ejectment applied on filed by the landlady on the date when deposit was made by her of arrears of rent in the Bank account of the landlady. On this point the evidence produced by the parties is not properly appreciated by the Courts below and I feel inclined to accept the contention raised by the tenant about the deposit or arrears of rent in the Bank account of the landlady particularly when there is no other evidence of rebuttal of that assertion available on the record.
12. ' Last contention raised on behalf of the tenant is that the landlady used to accept rent periodically at her own convenience. It is stated so by the tenant in her evidence before the Rent Controller that previously the Chemist used to collect the rent on behalf of the landlady and then sometimes the brother of the landlady used to collect the rent. After 1975 nobody came to collect the rent and she sent the rent through cheques which were refused. This plea is not available to the tenant for the reason that it is the duty of the tenant to seek the landlord and Make the payment and furthermore 59 receipts of rent produced by th6 tenant also indicate that she was paying the rent regularly and the receipts used to be issued. So far the payment of rent accumulated as arrears as alleged in the application is concerned. I have already held above that the arrears were deposited in the Bank account of the landlady which fact is not disputed and the assertion of the tenant that it was done with the permission of the landlady does not stand rebutted on the record, hence it can be said that the deposit in the Bank account has been accepted by the landlady. So far the question of deposit in the Bank after Ding of application for ejectment is concerned, the blame cannot be thrown on the tenant for the reason that she did not know that ejectment application had already been filed. I have also held above that there was amount of security of Rs, 2,400 with the landlady which was to be adjusted against the payment of arrears. Considering all these factors together I think this is a case in which default is not committed for the period as alleged in the application.
13. ' For the facts and reasons stated above the appeal is allowed and in the result the impugned judgment and order of ejectment granted by the Rent, Controller are hereby set aside. There will be no order as to the costs. It is open to the parties to adjust the amount of security and the deposit made by the tenant in the Bank account of the landlady mutually amongst themselves towards the arrears of rent.