The appellant above-named, being aggrieved by judgment dated 20th January, 1981, of the learned V111th Additional District Judge, Karachi in Rent Appeal No. 58/79, by which he upheld the order dated 6-1-1979 of eject--ment, passed by VIth Rent Controller Karachi, in Rent Case No. 1123/75, as well as by the order dated 6-1-197: of the learned VIth Rent Controller, Kar--achi, has preferred the above 11 Appeal on the following facts and grounds :- The fact of this application are, that the respondent is the owner of the premises No. 163-D, Block No. 111, P. E. C. H. S., Karachi, and the appellant is tenant in these premises, on a monthly rent of Rs.
1,100 per month. Such rent agreement was scribed and executed on 10-6-1974. A security deposit of Rs. 6,600 not adjustable towards rent was given by the appellant. The advance rent of Rs. 6,600 at Rs. 1,100 per month was also paid by the appellant up to the 31st December, 1979 and 15 days before the commencement of another terms of six months, a sum of Rs. 6,600 was to be paid by the appellant latest by 5th January, 1975, which he failed to do so, and violated the agreement. The appellant did not pay the advance of six months' rent in lump sum nor monthly rent of Rs. I, 10J per month from January, 1975. The appellant was served with a notice dated 13-3-1975, which was replied to by the appellant through his Advocate dated 27-3-1975. The appellant refused to pay the rent, and to vacate the premises and as such, respondent filed application.
2. The appellant had filed his written statement, wherein he had disputed the maintainability of the application. He had also disputed the jurisdiction of R. C. Court. The appellant had stated, that he had paid Rs. 13,260 as advance i. e. From 10-7-1974 to 9-7-1975. The appellant stated, that he is not a defaulter in payment of rent, and that the respondent had no cause of action, and thus the application is liable to be dismissed.
3. On the basis of the above pleadings of the parties the learned Rent Controller framed the following issues :-
(1) Whether a sum of Rs. 6,600 was deposited as security by the opponent not adjustable in arrears of rents, because of fitting fixtures, window, glass panes of foreign make in premises in dispute?
(2) Whether the opponent was required to pay Rs. 6,600 of rent for six months for another terms latest by 5th January, 1975?
(3) Whether any valid and binding lease agreement was executed between the parties?
(4) Whether -the opponent committed wilful default in the payment of monthly rent in spite of repeated demands?
(5) What should the order be?
4. The respondent examined himself likewise appellant examined himself before the learned trial Court and the learned trial Court after taking into consideration the evidence adduced by the parties and after hearing the learned Advocates for the parties allowed the ejectment application filed by the respondent for the reasons mentioned in its order dated 6th January, 1979. The appellant above-named being aggrieved by the said impugned order dated 6th January, 1979 filed Rent Appeal No. 58/69 before VIIIth Additional Sessions Judge, Karachi, who was pleased to dismiss the same vide his judgment dated 20th January, 1981 and consequently appellant has preferred this second appeal, on the grounds mentioned in the memo. Of appeal.
5. The first contention of the learned Advocate for the appellant was, that admittedly appellant was put in possession of the premises on 10-7-1974 and as such he became liable to pay rent for the premises from the date of possession only and consequently the stand of the respondent, that advance rent of Rs. 6,600 paid for six months covered period up to 31-12-1974 only, is not correct, as respondent was to put the appellant in possession of the premises on or about 1st July, 1974, as envisaged by clause (3) of the agreement dated 10th June, 1974, but he failed to do so, which is evident from endorse--ment made on the said agreement by appellant, on the date, when possession was delivered. The learned Advocate for the appellant further submitted, that in para. 3 of agreement, that tenancy has begun on 10th June, 1974, is meaningless, in view of the contents of para. 4 of the agreement which says, advance rent of six months was for a period up to 31-12-1974, on the basis that possession of the premises was to be delivered to appellant on 1-7-1974. The learned counsel for the appellant submitted, that both the learned lower Courts have failed to take into consideration this important point, which was borne out from the records before the said Court and as such have erred in coming to conclusion, that appellant failed to tender or payment from 1st January, 1975 instead of 10th June 1975. In view of this error, both the learned lower Courts have erred in coming to conclusion, that appellant was defaulter for payment of rents from 1st January, 1975 upto 31-3-1975, on the day, when application dated 8,4-1975 for ejectment was filed.
6. The second contention of the learned Advocate for the appellant before me was, that there was no stipulation in tenancy agreement for refund of security deposit and as such it was adjustable towards future rents, which aspect has not at all been considered by both the learned lower Courts and as such, both the learned lower Courts have come to wrong conclusion, that security deposit of Rs. 6,600 was not adjustable towards future rents, in spite of the fact, that respondent by notice dated 13-3-1975, terminated the agree--ment dated 10-6-1974, between the parties. In this connection the learned counsel for the appellant relied upon cases reported in PLD 1980 SC 298 and 1981 CLC 1060. The learned Advocate for the respondent on the other hand submitted, that security deposit in question cannot be adjusted towards future rents and relied upon cases reported in 1980 SCMR 834 and 1981 SCMR722.
7. The third contention that was raised by the learned Advocate for the appellant was, that if his contention that tenancy commenced from 10-7-1975, is accepted, then the rent for the month of January, 1975, was payable on or before 9-4-1975 and rent for February and March, 1975, were to be paid on or before 9-5-1975 and 9-6-1975 respectively and as such there was no default at all on 8- 4-1975, when the ejectment application in question was filed. In the alternative the learned Advocate for the appellant submitted, that in case calculation of the respondent is accepted, that the rent for January, 1975 become due on 2-4-1975, then too there was only default of 6 days, in respect of one month, on the day of filing of ejectment application in question and as such discretion ought to have been exercised in favour of the appellant by the learned trial Courts. In support of this, learned Advocate for the appellant relied upon case reported in PLD 1980 SC 293.
The learned Advocate for the respondent on the other hand submitted, that question of default is question of fact and as such findings of both the learned lower Courts, cannot be interfered with in this Second Appeal.
8. I have carefully considered the above submissions made by the learned counsel for the parties and have gone through the impugned order and impugned judgment as well as evidence adduced by the parties, before the learned Rent Controller and. Have also gone through the various authorities cited by the learned counsel before me.
9. The first important question which requires consideration is whether agreement of tenancy dated 6-10-1974, between the parties continues to exist between the parties. If not, when did said agreement come to an end, and its effect if any.
10. The bare reading of agreement between the parties shows, that it was to come to automatic end under clause (5), if further advance payment of rent for six months was not made, as envisaged by the said agreement. It is admitted position, that appellant did not make any further advance payment of rent, after initial advance payment stood fully adjusted. In view of this admitted position, the agreement between the parties came to end on 5th January, 1975 and/or on 15th January, 1975, if the tenancy of the premises commenced on 10th July, 1974, the day on which possession of the disputed premises was actually handed over to the appellant, in any case it came to an end vide notice dated 13-3-1975 given by the respondent to the appellant, even if the agreement is considered to be effective at least for 11 months, for the date of commencement of tenancy of the disputed premises, in spite of the fact, that the agreement in question was not registered, as required by law, although same envisages tenancy beyond the period of 11 months, on the face of it. Be as it may be, whether agreement between the parties came to end on 5th January, 1975 or 15th January, 1975 or on 13-3-1975, in any case it came to an end on at least 13-3- 1975, on account of the notice sent by the respondent to the appellant and as such the appellant became statutory tenant of the respondent, after full adjustment of the initial advance rent of six months paid by them to the respondent.
11, Keeping in view my above conclusions, I would now deal with the first contention of the learned Advocate for the appellant regarding actual commencement of tenancy in respect of the disputed premises. The contention of the learned Advocate for the appellant, that tenancy of the premises in question commenced were. f. The date of actual possession of the disputed premises given to the appellant i. e. 10-7-1974 has great force, in view of clause 4 of the agreement in question, according to which the advance rent of six months was to be adjusted by 31-12-1974, as the possession under said 'agreement was to be delivered on or about 1st July, 1974, in spite of mention of date of commencement of tenancy as 10-6-1974,_in clause (3).Of the said agreement. In view of this I am of the opinion, that tenancy of the premises actually commenced were. f. 10-7-1974, when possession of the disputed premises was actually delivered to the appellant and as such the advance rent of silt: months paid by the appellant as mentioned in the said agreement stood adjusted on 9-1-1975 and not 31-12-1974, as submitted by the learned Advocate for the respondent.
In view of this finding of mine, rent from 10th January, 1975 became payable and due on 9th February, 1975 and in the absence of any, agreement between the parties for payment of such monthly rents, in case of non-payment of advance rent as contemplated by agreement in question, default if any for said payment would be governed by the provisions of West Pakistan Urban Rent Restriction Ordinance, 1959, only, and as such the rent from 10th January, 1975, could have been paid by the appellant on or before 9th April, 1975 and similarly rent from 10-2-1975 could have been paid on or before 8-5-1975 and so on and as such on the date of filing of ejectment application in question, appellant in my opinion was not defaulter at all, for alleged non-payment of rents for the month of January, February and March, 1975, as held by both the learned trial Courts.
11. The second contention of the learned Advocate for the appellant, that in the absence of any stipulation in the agreement in question for refund of security deposit, the same was adjustable towards future rents also has great force, in view of the cases reported in PLD 1980 SC 298 and 1981 G L C 1060, which were relied upon by the learned Advocate for the appellant.
The reliance placed by the learned Advocate of -respondent in this connection on cases reported in 1930 SCMR 834 and 1981 SCMR 722 is miscon--ceived, as in my opinion these authorities are based on different facts and as such not applicable to present case at all. In view of this even if the contention of the learned Advocate in respect of alleged default for argument sake is accepted, then too in view of security deposit of Rs. 6,600 lying with the respondent, appellant was entitled to claim adjustment of said rent from the said security deposit amount, in view of the law laid down by the Honour--able Supreme Court in case reported in PLD 1980 SC 298, which is fully applicable to the case of the appellant, as respondent at least terminated the agreement of tenancy between the parties, vide his notice dated 13-3-1975 and as such appellant became entitle to claim adjustment of security deposit amount towards future rents. In any case even if for arguments sake the contention of the learned Advocate for respondent is accepted, that rent for month of January, 1975, became due on 1-2-1975, then too the same could have been-paid within 60 days of such date which would come on 2-4-1975 and as such default, if any was technical default, on the day of filing of ejectment application in question and as such it was a fit case for exercise of discretion in favour of the appellant and as held in cases cited by the learned Advocate for the appellant and as such even the third contention of the learned Advocate for the appellant has great force and the contention of the learned Advocate for the respondent that the question of default is question of fact and as such concurrent finding of both the learned lower Courts cannot be interfered in this second appeal has no force, as question of default is always a mixed question of fact and law and as such can be considered in second appeal, in spite of concurrent finding of both the learned l6wer Courts, as this is now settled law.
12. Therefore in view of my above conclusions and findings, I allow the above appeal and set aside impugned order dated 6-1-1979 of the learned VIth Rent Controller, Karachi as well as impugned judgment dated 20-1-1981 of the learned V1IIth Additional District Judge, Karachi and dismiss the ejectment application filed by the respondent. However in view of the facts and circumstances of the case, I would pass no orders as to cost.