' This appeal is directed against the orders dated 29th April, 1979 and 28th February 1978 passed by the VIIIth Civil Judge and III Rent Controller, at Karachi and the learned VIIth Additional District Judge, at Karachi respectively, in Rent Case No, 4249/75 and Rent Appeal No, 205/78, respectively.
' The brief facts leading to the filing of the above second appeal are that the respondent, filed the aforesaid rent application on 1st December, 1975 for ejectment on the ground of default in payment of rent for period commencing from 1st December 1975 to 30th November, 1976 at Rs, 150 per month, amounting to Rs, 450. The above rent application was resisted and inter alia it was pleaded by the present appellant that there was no default inasmuch as a sum of Rs, 380 was lying with the respondent as a fixed deposit under the tenancy agreement dated 5th November, 1971, which had expired in 1972 on the expiry of 11 months. However, the learned Rent Controller relying upon the case of Syed Shafiuddin v. Abdul Hakeem Khan (1) wherein it was held that a security deposit cannot be adjusted against the arrears of rent granted the above application. The above appellant aggrieved by the above {{FOOT NOTE}}
(1) PLD 1978 Kar. 149 {{FOOT NOTE}} ' order filed the aforesaid Rent Appeal No, 205/78, which was dismissed by the learned Additional District Judge by the aforesaid order dated 29th April, 1979. The appellant being aggrieved by the above order has filed the present second appeal.
2. (a) In support of the appeal Mr. Majeed Khan, learned counsel for the appellant has urged that the recent view of the Supreme Court is that the security deposit of an expired tenancy agreement can be adjusted against the arrears of rent, and therefore, the two orders under appeal cannot be sustained. In support of the above submission, he has relied upon the case of Muhammad Yousuf v. Abdullah (1). On the other hand it has been urged by Mr. Baig that there is a contrary judgment of the Supreme Court, namely, Abdul Aziz Baig v. Mushtaq Ahmad Sethi (2). His further submission was that the facts of the case of Muhammad Yousuf v. Abdullah relied upon by the learned counsel for the appellant are distinguishable from the present case inasmuch as in the said case the fixed deposit was Rs, 1,030 and that after adjusting the alleged arrears of rent, the balance of Rs, 400 was still available. It may be observed that in the aforesaid Supreme Court case of Muhammad Yousuf v. Abdulluh, the facts of the case are on all fours similar to the facts of the instant case, except that the security deposit was Rs, 1,000 which was sufficient to clear the entire arrears and to leave a balance of about Rs, 400. Whereas in the instant case after the adjusting the security deposit of Rs, 380 the appellant would still remain liable to pay a sum of Rs,
70. It may be observed that in the above Supreme Court case, the security deposit was made under an expired lease agreement, which is also the case in the instant appeal. The deposit in question was made under a tenancy agreement for a period of 11 months which had expired in 1972. The respondent had no legal right to hold on the deposit amount after the expiry of the tenancy agreement. In my view if the principle that a security deposit of an expired tenancy agreement can be adjusted against the arrears of rent is to be accepted, in that event, I follows that quantum of the security amount does not make any difference. In the instant case as pointed out hereinabove if Rs, 380 would have been adjusted against the arrears of rent, the appellant would have remained liable to pay a balance amount of Rs, 70 for the month of November, 1975. Since the rent application was filed on 1st December, 1975 no default existed as 60 days period provided for under section 13 (2) had not expired by the time of the filing of the above application.
(b) Reverting to the aforesaid case of Abdul Aziz Baig v. Mushtaq Ahmad Sethi, relied upon by Mr. Baig, it will suffice to observe that it is true that in the above case a contrary view was taken by the Supreme Court, while upholding the judgments of the Courts below, but since the case relied upon by Mr. Majeed Khan is subsequent in time, it is to be followed in preference D to the earlier case. It may be observed that in the aforesaid case of Muhammad Yousuf v. Abdullah, the Supreme Court of Pakistan, had set aside the concurrent finding of the three Courts below on the question of default after giving adjustment of the security deposit against the arrears of rent.
3. In view of the above discussion, the two orders under appeal cannot be sustained and, therefore, the appeal is allowed and, the two orders are hereby set aside. The respondent's ejectment application shall stand dismissed. However, in the circumstances of the case, there will be no order as to costs. {{FOOT NOTE}}
(1) PLD 1980 SC 298 (2) 1980 SCMR 838 {{FOOT NOTE}}