MUZAMIL AKHTAR SHABIR, J.--- This constitutional petition is directed against the judgment 01.12.2016 passed by the Addl. District Judge, Lahore, whereby the appeal filed by the respondent No.2 was allowed with the result that the order dated 18.07.2016 allowing the ejectment petition filed by the petitioner passed by the Special Judge Rent, Lahore was set aside and the matter was remanded to the Special Judge, Rent for decision afresh.
2. Brief facts of the case are that on 11.07.2015, the petitioner rented out Godown measuring 8- Marlas, situated in Yasrab Colony, Baghat Pura, New Shadbagh, Lahore, to the respondent No.2. The petitioner claims that the rent was fixed (a Rs.30,000/- per month and the respondent No.2 paid an amount of Rs.1,50,000/- as security to the petitioner and the period of tenancy was 11-months. The respondent No.2 sublet the rented premises and also defaulted in the payment of rent, where after the petitioner issued two notices dated 16.10.2015 and 16.11.2015, which were not responded to by the respondent No.2 and the petitioner filed ejectment petition on 18.12.2015. The respondent No.2 contested the ejectment petition by filing petition for leave to contest wherein he claimed that rate of monthly rent was Rs.3000/- only and not Rs.30,000/- and the respondent No.2 had paid security amount of Rs.11,50,000/- instead of Rs.1,50,000/-, the period of tenancy was 19-months and not for 11-months as claimed by the petitioner. The learned Special Judge Rent, Lahore, vide order dated 18.07.2016 partially dismissed the application for grant of leave to contest on the ground of default and directed the respondent No.2 to hand over the vacant possession of the demised premises within two months from the date of passing of order. As the rate of rent as well as amount deposited as security were disputed, the petition for leave to contest was allowed to that extent and issues were accordingly framed. The responderit No.2 filed appeal against the said order of ejectment on 08.09.2016, which was contested by the present petitioner. The learned Additional District Judge, Lahore, on 01.12.2016 allowed the appeal and set aside the order dated 18.07.2016 passed by learned Special Judge Rent and remanded the case to the Special Judge Rent to decide the rent petition after recording of evidence afresh. The petitioner has through his constitutional petition challenged the order dated 01.12.2016 passed by the Addl. District Judge.
3. Learned counsel for the petitioner has argued that the respondent No.2 had tampered with the original rent agreement and reduced the rate of rent from Rs.30,000/- to Rs.3000/- and enhanced the security amount from Rs.1,50,000/- to Rs.11,50,000/- and period of tenancy from 11-months to 19-months. This fact has been controverted by the counsel for the respondent No.2 on the ground that the petitioner had himself produced rent agreement as Mark-C wherein the rate of rent, period of tenancy and amount of security were mentioned that supported the version of the respondent No.2, therefore, the order was justified. Moreover, the respondent No.2 had paid advance amount as security, from which, if the rent was due, the same could be deducted.
4. I have gone through the record of the case and the judgments/ orders passed by the courts below. The learned Special Judge Rent had allowed the ejectment petition filed by the petitioner on the ground that the respondent No. 2 had defaulted and had not paid any rent to the petitioner after 15.10.2015. The respondent No.2 was duty bound to prove that the rent was paid by him. The respondent No.2 denied the fact of being defaulter but could not produce any receipt in support of his own version. As per the rent agreement, the respondent No.2 was bound to pay rent between the 10th and 15th of every month. Nothing was produced by him to show payment of rent, rather the respondent No.2 filed an application under Section 20 of the Punjab Rented Premises Act, 2009 for deposit of rent with the Special Judge Rent but the same was dismissed due to non-prosecution on 29.01.2016, which goes on to support to the claim of the petitioner that the rent was not paid by the respondent No. 2.
5. The learned Addl. District Judge observed that without recording the evidence and decision qua the issue, the respondent No.2 cannot be declared defaulter and if for a moment it is believed that that the respondent No.2 failed to deposit the rent as averred by the petitioner, sufficient amount of security is deposited with the petitioner and rent can be adjusted from the same. The claim of the respondent No.2 is that he has deposited security amount as Rs.11,50,000/- and rent averred by the respondent No.2 is Rs.3000/-per month which can be deducted from the security amount.
6. I am not in agreement with the assertions of the respondent No.2 and the reasons given by the Addl. District Judge, whereby it has been observed that outstanding rent could be adjusted against the security amount and the respondent No.2 cannot be declared as defaulter without recording of evidence because as observed by the learned Special Judge Rent in its order that the respondent No.2 had himself applied on 27.12.2015 through an application under Section 20 of the Punjab Rented Premises Act, 2009 filed the court for deposit of rent. This in my opinion amounts to admission that the payment of rent was due and outstanding on the date of presenting the application. The said application was dismissed for non-prosecution on 29.01.2016. The respondent No.2 neither made any effort to have the application restored, nor tried to pay the rent in the court or produced any receipt to show that rent has been received by the petitioner. The respondent No.2 has not denied in arguments or in grounds of appeal the fact of filing application for deposit of rent in the court. The learned Special Judge Rent has ample jurisdiction to regulate its own procedure on the basis of material available with him. Reliance may be placed on cases of Muhammad Tariq Khan v. -Kh. Muhammad Jawad Asami (2007 SCM R 818) and Muhammad Bashir v. Yaseen (2011 CLC 1464). The learned Special Judge rent could adopt the procedure of deciding the matter on the basis of facts established on the record and need not record evidence for determination of a fact established on the record. In view of the afore-referred circumstances, in my opinion the learned Special Judge Rent was justified to hold the petitioner as a defaulter and there is nothing wrong with declining the application for leave to contest to the respondent No.2 to that extent. The Addl. District Judge did not give proper consideration to the afore-referred aspect of the matter and was not justified to set aside the order of the Special Judge Rent.
7. The observation of the Addl. District Judge that me sufficient amount security has been deposited by the respondent No.2 and rent could be adjusted from that amount is also not based on proper appreciation of facts of the case and law on the subject. For this purpose, reference may be made to section 7(1) of the Punjab Rented Premises Act, 2009 reproduced below:-- "Paym ent of rent. (1) A tenant shall pay or tender the rent to the landlord in the mode and by the date mentioned in the tenancy agreement." (Emphasis supplied)
It is clear from the afore-referred Section that the tenant/ respondent No.2 was obliged to make payment of rent to the petitioner in the mode and by the date mentioned in the rent agreement. It has specifically been mentioned in the rent agreement that the respondent No.2 was obliged to pay rent between 10th and 15th of each month. The rent agreement does not provide that the due rent is to be adjusted from the security amount. The petitioner was to refund the security amount at the time of vacation of premises by the respondent No.2, therefore, the availability of security amount cannot absolve the respondent No.2 to pay rent with time. The respondent No.2 has failed to show payment of rent to the petitioner in accordance with the terms of agreement, which has the backing of section 7 of the Punjab Rented Premises Act, 2009. It is settled law that when law required an act to be done in a particular manner, it had to be done in that manner alone and such dictate of law cannot be termed as a mere technicality. Reliance is placed on PLD 2016 SC 995 (Shahida Bibi and others v. Habib Bank Limited and others) and PLD 2013 SC 255 (Muhammad Anwar and others v. Mst. Ilyas Begum and others).
8. Besides it is a settled proposition of law that amount of security cannot be adjusted as due rent during the pendency of the relationship of landlord and tenant between the parties, unless it is expressly agreed otherwise between the parties. Reliance in this behalf is placed on case of Syed Asghar Ali Imam v. Muhammad Ali (PLD 1988 SC 228) wherein the Honourable Supreme Court of Pakistan observed as under: "Although it is not mentioned in the agreement as to how and when the security deposit will be adjusted or applied, but it can easily be spelled out from the use of the word security and the positive provisions regarding payment. of rent in advance at specified time as also the payment of other charges; and the provision in the negative form that the tenant shall not cause loss or damage to the property or to the landlord. The security deposit therefore, is to be adjusted by time landlord when the tenant vacates the premises towards unpaid rent or against other payments or loss at any time. It could not, be adjusted against the current liability to pay the rent.
It has to be adjusted in accordance with the terms of the agreement and not by the Rent Controller at his will."
The same principle of law is laid down in the case of Zarina Khawaja v. Mahboob Shah (PLD 1988 SC 190) and Mirza Abdul Aziz Beg v. Mushtaq Ahmad Sheikh (1980 SCM R 834).
By following the dictum laid down in the afore-referred cases, it is held that the security amount cannot be adjusted in the rent amount for the benefit of the respondent No.2 for absolving him from his default and declaring him not to be a defaulter. It is declared that the findings of the learned Additional District Judge are not based on correct appreciation of law on the subject and facts of the case.
9. As the dispute relating to the exact amount of security deposit, rate of rent and duration of tenancy agreement are pending before the learned Special Judge Rent, therefore, this court has commented upon the same. However, it is observed that whether duration of tenancy was 11 or 19 months, the same seems to have expired during the pendency of the litigation.
10. For what has been discussed above, the order passed by the Addl. District Judge is not sustainable in the eye of law. Resultantly, the same is set aside and the order dated 18.07.2016 passed by the Special Judge Rent is restored. With the above observation this constitutional petition is allowed.