This appeal is directed against the Judgment passed by the learned III Additional District Judge, Hyderabad, 29-10-1980 in Civil Appeal No. 181 of 1979, which was dismissed and the order of the Rent Controller passed in Rent Application No. 15 of 1977 granting order of ejectment on the ground of default in payment of rent was maintained.
The facts leading to the filing of the appeal are that the premises in question, the tenement on the ground floor on the Eastern side of the building bearing No. C. S. 2139 Ward "G", Hyderabad, was let out to Malik Ghulam Rasool on a monthly rent of Rs.
50. At the time of letting out the premises to the said tenant the respondent received a sum of Rs. 500 by way of security deposit.
Subsequently an application for ejectment was filed against the said Malik Ghulam Rasool on 10-1- 1977 on the alleged ground of his committing default in payment of rent since the month of April, 1976. Another ground pleaded in support of the ejectment application was that the above- mentioned tenement was required by the landlord for his personal and bona fide use and that the tenant had damaged the premises and thus materially impaired its value.
A number of issues were framed but all were answered against the landlord except the issue No. 1, which reads as follows :- "Whether the opponent has committed wilful default in payment of the rent."
2. Both the Courts below after examining the evidence and hearing the parties held that a sum of Rs. 500 was lying deposited as advance with the respondent landlord. The respondent in his cross- examination however took a strange stand by deposing that he did not remember if a sum of Rs.
5001 was paid by the tenant as deposit. Obviously this statement was a deliberate attempt to conceal the fact of the deposit made by the tenant which is evidenced by the receipt (Exh. 46).
Both the Courts below have held this receipt as a genuine document. The finding of the learned First Appellate Court may be reproduced herein below : "The opponent produced receipt of Rs. 500 and trial Court has believed it to be genuine:"
3. The question, which was posed by the learned Rent Controller was as to whether this amount of Rs. 500 which was deposited by the tenant with the respondent landlord should have been deducted towards the monthly rent in case he fails to pay the rent. The learned Rent Controller without answering the question thus raised proceeded to hold that rent was not paid monthly to the landlord after March, 1976 and thus, the opponent was treated as a defaulter in payment of rent. The same question came up for consideration before the learned First Appellate Court, who, however, held that there was nothing in the receipt (Exh. 46) to show that in case of any default in payment of rent the amount shall be adjusted out of the advance deposit lying with the landlord.
I have considered the reasoning of the learned Rent Controller as well as the learned First Appellate Court in the light of the arguments advanced by Mr. Mazhar Ali B. Chohan, Advocate for the appellant, who relied upon the case of Muhammad Yousuf v. Abdullah (PLD 1980 SC 298) where the security deposit lying with the landlord was not returned to the tenant in spite of the expiry of the lease agreement. The honourable Supreme Court observed :- " .. ...But even on the footing that this resulted in a failure to pay rent within the meaning of section 13 of the said Ordinance, it was a very technical default and it would reduce the law to a farce, if the respondent was evicted for being in debt to the .Respondent (on account of his failure to pay rent) when in fact the overall position was that the respondent was in debt to the appellant. Therefore, there could not be a more appropriate case for the exercise of the Court's discretion under section 13 of the said Ordinance in the tenant's favour. Accordingly, even on the footing that the appellant was i.e technical default in the payment of rent on the date of the eviction application filed against him, we have no hesitation in exercising our discretion in his favour. We, therefore, set aside the eviction order passed by the three Courts below and allow the appellant's appeal."
Thus I find force in the arguments advanced by the learned counsel for the appellant. It is established on record that as against the alleged non payment of rent amounting to Rs. 450 for April, 1976 to December, 1976, a sum of Rs. 500 was already lying with the landlord as deposit in advance. The landlord attempted to conceal this fact by saying that he did not remember if the said sum of Rs. 500 was paid to him by tenant towards deposit. This conduct of the respondent shows that his statement cannot be given full credence. On the basis of the evidence on record the inescapable conclusion is that Rs. 500. Is lying in advance deposit with the respondent and the said amount was sufficient to were out the arrears of rent on the basis of which ejectment of the appellant/tenant was sought. It has been pointed out by Mr. Mazhar Ali Chohan that the original tenant against whom the case was filed namely Malik Ghulam Rasool during the pendency of the case, first became blind, then became a mental case and ultimately died In the circumstances of the case the submission of the counsel that it was a fit case in which the amount of deposit lying as advance with the landlord was liable to be adjusted towards the rent, appears to be reasonable.
Thus the appellants have been able to establish that the appellants or their predecessor Malik Ghulam Rasool was/were not defaulters within the meaning of sec--tion 13(2) (i) of the then West Pakistan Urban Rent Restriction Ordinance of 1959, and in any case it was a fit case where the technical default could not be allowed to reduce the law to a farce, and there is no hesitation in holding that this was an appropriate case in which the discretion ought to have been exercised in favour of the tenant.
4. The upshot of the above discussion, is that I find that the appellants or their predecessor were/was not defaulters within the meaning of sec--tion 13(2) (i) of the Ordinance, 1959, and in any case this Court is fully justified in exercising its discretion in favour of the appellants. The appeal accordingly succeeds and the impugned orders passed by the learned Courts below are set aside.