1. ' This appeal under section 21 of the Sind Rented Premises Ordinance, i979 has been filed against the order of the Rent Controller No, V, Karachi dated 21st May, 1980 on application under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, in rent Case No, 4222/ 1976 directing the appellant to vacate the demised premises within two months.
2. ' The facts briefly stated are as under :-The respondent who is owner/ landlord of bungalow situated on Plot No, E/17 Block 'F' North Nazimabad, Karachi leased out the southern wing of the same on rental of Rs, 00 and water charges Rs, 20 per month.
3. ' On 19th October, 1976 the respondent presented application under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 before the Rent Controller seeking ejectment of the appellant on the ground of default in payment of rent from February to August, 1976 amounting to Rs, 4,550 and of water charges from 16th September, 1974 to August, 1976 amounting to Rs, 470. He also prayed for ejectment of the appellant on the ground that he required the demised premises for his own use as well as that of his children. It was his case that one of his children had already got married and another was going to get married soon.
4. ' The appellant filed written statement dated 12th April, 1977 admitting the tenancy, the monthly rent and the water charges but denying default in payment of the same. He explained that respondent had refused to receive the rent for 3 months even though the same was tendered by money order, necessitating the appellant to make application for depositing rent in Court on 13th November, 1976. He took the plea that the ejectment application had been filed simply to harass him as he had refused the proposal of the respondent for enhancement of rent. He denied that the respondent needed the premises for use of his children.
5. ' In the rent account filed by appellant he stated that rent from February, 1976 to July, 1976 amounting to Rs, 3,900 was paid as advance rent and for the months of August, 1976 to July, 1977 had been deposited in Court as under :- {{TABLE}} S. Nodate of depositmonth amount 1 2.
6. 3.
7. 4 5 6 7 8 918-11-1976 25-11-1976 3-1-1977 22-2-1977 22-2-1977 30-3-1977 2-7-1977 12-7-1977 29-9-1977August and Sept. 76 October, 1976 November, 1976 December, 1976 January, 1977 February, 1977 March-May, 1977 June, 1977 July, 1977Rs.1,300 Rs.650 Rs.650 Rs.650 Rs.650 Rs.650 Rs.1,950 Rs.650 Rs.650 {{TABLE}} ' He also showed as spent on repair by permission of the respondent Rs, 1,600 and stated that he had paid Rs, 730 as water charges under the oral agreement. The Rent Controller settled the following issues :- "(i) Whether the opponent has committed wilful default in payment of rent as alleged in the application ? i. Whether the applicant requires the premises in good faith for himself and for his children ? ii. Whether the opponent has paid Rs, 3,900 as advance rent to the applicant, if so what is its effect ? i. Whether the opponent has spent Rs, 1,600 on white washing etc. With permission of the applicant, if so its effect ? ii. What should the order be ?"
8. ' In the impugned order the learned Rent Controller gave finding that issues Nos. 3 and 4 had not been proved by the appellant and with regard to issue No, I he held that appellant was guilty of willful default in payment of rent. With regard to issue No, 2 he gave the finding against the respondent.
9. ' The appellant has filed instant appeal against the impugned order and Mr. N. I. Mandi, has raised the following two contentions :-(l) That the finding regarding wilful default is based on misreading of the evidence on record. (2) That since the evidence put forward by the respondent with regard to the ground of bona fide personal requirement of self and children given by the respondent was not believable; his evidence with regard to issue of wilful default by the appellant in the payment of rent also should not have been considered trustworthy.
10. ' With regard to the first contention it was argued by the learned counsel that the Rent Controller had misread the evidence on record as in the impugned order he had observed as under :- "The opponent has examined one witness Haji Muhammad Wasi who has stated that he paid Rs, 3,900 in his presence though opponent himself did not state that he had paid Rs, 3,900 in presence of Muhammad Wasi."
11. ' The learned counsel for the appellant has pointed out that in the cross-examination of the appellant he had mentioned that he had made the payment in presence of Muhammad Wasi. In fact it was this contention of the learned counsel for the appellant due to which the instant appeal was admitted for hearing. However, as is apparent from the impugned order the learned Controller had also considered the fact that the appellant/ opponent had not mentioned anything in his written statement regarding paying Rs, 3,900 to the respondent and the plea was taken only in his evidence in the Court. The learned Controller also further observed that appellant had not produced any document to prove that he paid the amount to the appellant/respondent. However, for the sake of argument even if the plea that the deposit/advance was paid, is accepted in his own words in the deposition the appellant had stated as under :- "At the time of obtaining house on rent I had paid Rs, 3,900 security deposit and advance to the applicant. The rent of three months was to be adjusted out of the above amount paid by me."
12. It is, therefore, apparent that the amount of Rs, 3,900 even according to the appellant was to serve as three months' rent in advance and the other A half had to be deposited as security refundable on the termination of the lease.
13. ' In Mirza Abdul Aziz Beg v. Mushtaq Ahmad Shaikh, a decision of the Supreme Court of Pakistan it was held that deposit by way of security was not adjustable against rent due from tenant. In that case the tenant's plea to such effect was considered not acceptable in proceedings for ejectment for non-payment of rent.
14. ' The further plea of the appellant about incurring Rs, 1,600 on repairs with the consent of the respondents, was also rightly considered as not proved, in view of the fact that the appellant had not 'taken the plea in his written statement and had also not led any evidence with regard to the carrying out of the repairs and the amount spent thereon. The learned Controller rightly observed that there was no documentary proof adduced to show that permission of the respondent had been taken.
15. ' The ground of default is mentioned in section 13 (2) (i) of the Urban Rent Restriction Ordinance, 1959 in the following words :- "(i) the tenant has not paid or tendered rent due by him in respect of the building or rented land, within 15 days after the expiry of the time fixed in the agreement of tenancy with his landlord, within 60 days from period for which rent is payable..............."
16. A perusal of the statement of rent account submitted before the Rent Controller would show that from February, 1976 to July, 1976 Rs, 3,90013 the amount of advance/deposit had been shown to have been paid. For the reasons already given according to the appellant, only half that amount was to be considered as advance rent, the other half being security deposit. In Muhammad Ramzan v. Bashir Ahmad, a decision of the Lahore High Court controversion of the landlord's statement by a mere assertion by the tenant that the rent had been paid and that receipts were not taken as the tenant had faith in the landlord at the same time there being no entries in account books, it was held that such assertion was not enough and tenant was held to be a defaulter.
17. ' It is admitted position that in the instant case there was no agreement of tenancy executed and a plain reading of section 13 (2) (i) would show that, in case of no agreement of tenancy, the landlord would not be entitled to seek tenant's eviction unless 60 days expired from the period for which the rent was payable.
18. In Syed Shin Gul v. Haji Abdul Majid a decision of the Baluchistan High Court it was held that the period of 60 days, however, is not to be C counted from the date when rent was payable, but 60 days have to elapse from the period for which the rent is payable. Applying the aforesaid criterion to the facts of the instant case, as shown in the statement of account on behalf of the appellant/opponent it is clear that as shown in item No, 1 the rent for the month of August, which was for the period of tenancy upto 31st August, was paid long after the two months on 18th November, 1976. Again rent for the month of March, 1977 which was for the period of tenancy upto 30th March was paid only on 2nd July, 1977 and, therefore, there was clear case of default in payment of rent.
19. ' With regard to the contention that since evidence adduced on issue No, 2 by the respondent was found not sufficient and trustworthy, his evidence should not have been considered trustworthy also in respect of issue No, 1, the contention to say the least is misconceived. Moreover, even from1 2 3 the evidence of the appellant consisting of deposition before the E Rent Controller and the statement of account submitted by him, is sufficient to support the finding of the learned Controller on the issue with regard to willful default in the payment of rent. It was observed by the learned Controller in the impugned order as under :- "In his cross-examination the opponent admitted that at the time of filing of the case the rent was due from February, 1976. He also admitted that at the time of filing the case amount of Rs, 470 on account of water charges was due against him. He admitted that he sent the money order on 25th October. 1976 and started depositing rent in Court on 18th November, 1976. It is thus clear that up to the filing of the case on 18th October, 1976, rent was neither tendered by money order nor deposited in Court."
20. ' In the circumstances stated there is no weight in this appeal which is dismissed, however, with no order as to costs. The appellant is hereby directed to hand over the vacant possession of the premises within two months of the date of this order. 1980 SCMR. 834 PLD 1967 Lab. 696 PLD 1968 Quetta 45