' This is a second rent appeal against the two orders, dated 9th August, 1975 and dated 30th July, 1978 passed by the learned IV Senior Civil Judge and Rent Controller, Karachi, in Rent Case No, 1762/72, and Rent Appeal No, 472/75 passed by the learned II Additional District Judge, Karachi, respectively.
' The relevant facts leading to the filing of the above appeal are that the respondent filed the above rent case for ejectment on three grounds, namely, default in payment of rent for the period from 1st January, 1971 to 31st July, 1972 amounting to Rs, 1,140 at Rs, 60 per month, personal requirement and impairing utility of the property. The learned Rent Controller on the basis of the pleadings of the parties framed following issues :
(1) Has the opponent defaulted in payment of rent ?
(2) Does applicant require tenement in question for use ?
(3) Has opponent caused material damage to the premises ?
(4) Has applicant got Rs, 7,000 of the opponent ? If so, what would be its effect on order of ejectment, if any ?
(5) What relief ?"
' After recording evidence and hearing of the parties, he recorded his finding in affirmative on issues Nos. 1 and 4. He ordered ejectment of the appellant on the ground of default but at the same time directed the respondent to refund Rs, 7,000 on receipt of the possession of the tenement. The appellant being aggrieved by the above order filed Rent Appeal No, 472/75 which was dismissed by the learned II. Additional District Judge, Karachi, by his aforsaid order dated 30th July, 1978. He maintained the finding on the question of default but modified the order of the Rent Controller as to the direction of the refund of the above amount of Rs, 7,000. The appellant being aggrieved by the above orders has filed the present second appeal.
2. In support of the above appeal Mr. A Aziz Khan, learned counsel for the appellant has urged that the Rent Controller after having concluded that a sum of Rs, 7,000 was lying with the respondent could not have passed an ejectment order on the ground of default, of alleged non-payment of Rs, 1,140. On the other hand Mr. Shaikh, Muhammad Usman, learned counsel for the respondent, has contended that the above amount of Rs, 7,000 was a security deposit which could not have been adjusted against the arrears of rent and, therefore, the findings of the two Courts on the above question is in accordance with law.
' Mr. A. Aziz Khan has referred inter alia to two documents, namely, Exh. A/1 which is an agreement of rent, dated 1st June, 19 63 which does not contain any clause providing the payment of the amount of Rs, 7,000 as a security deposit or otherwise. The second document referred to him is a receipt, dated 6th April, 1964 Exh. A/5 which reads as follows :- {{URDU TEXT}} ' A perusal of the above-quoted receipt' indicates that the above receipt acknowledges the receipt of Its. 7,000 from the appellant's predecessorin-interest i. e. Appellants Nos. 1 to 6's deceased father and appellant No, l's deceased husband but does not provide that the above amount was received as a security deposit. However, it has been urged by Mr. Sh. Muhammad Usman that since this amount was refundable on vacation of the tenement, this is in fact a security deposit. His further contention that the tenancy agreement was for indefinite period and, therefore, this amount was to be retained by the respondent till the time of handing over the vacant possession. Mr. A. Aziz Khan has referred to the case of Muhammad Yousuf v. Abdullah (1) in which the Supreme Court of Pakistan inter alia held that after the expiry of the tenancy period under the tenancy agreement, the tenant had become a statutory tenant and that the landlord was liable to refund the security deposit received by him under such an agreement. It may be pertinent to quote hereinbelow a passage from the above judgment which has direct bearing on the point in issue which reads as follows :- "It is true that the appellant had not demanded the return of his deposit on the expiry of his lease and further as the debtor, it was for him to find the creditor, therefore, he should have informed the respondent to adjust the arrears of rent against his deposits with the respondent. This he did not do, 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 in technical default in the payment of rent on the date of 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. However, as the appeal turned on a question of law which had not been decided by this Court, we leave the parties to bear their own costs."
' On the other hand Mr. Sh. Muhammad Usman has referred to the case of Mirza Abdul Aziz Beg v.
Mushtaq Ahmad (1) in which the tenant had deposited a sum of Rs, 825 as security deposit in respect of tenement of which monthly rent was Rs, 250. It was held in the above case that as the tenancy agreement under which the above security amount was deposited remained in force, the tenant was not entitled to claim adjustment for the defaulted period.
3. In my view the above case has no application for the simple reason that in the present case the amount of Rs, 7,000 was not paid as a security deposit under the tenancy agreement as observed hereinabove. On the other hand the passage cited hereinabove from the other Supreme Court case referred to hereinabove has direct bearing on the instant case, inasmuch as the alleged default in the instant case at the most can be termed as a technical default. It may also be observed that in the above Supreme Court case relied upon by Mr. Shaikh Muhammad Usman the rent was Rs, 250 whereas the security deposit was only Rs, 825 whereas in the instant case the rent of the tenement is only Rs, 60 whereas the alleged security deposit is Rs, 7,000. On that account also the above case is distinguishable.
' It was next contended by Mr. Sh. Muhammad Usman that since this amount was acknowledged through a receipt, dated 6th April, 1964 the appellant could have claimed the refund of the same within three years and, therefore, the claim if any of the appellant in respect of the above amount has become time-barred. The second limb of his argument was that under section 8 of the late West Pakistan Urban Rent Restriction Ordinance, 1959 the appellant could have claimed the adjustment of the above amount within six months from the date of the enforcement of the above Ordinance. It will suffice to observe that in terms of the receipt quoted hereinabove, the amount was refundable by the respondent to the appellant on receipt of the possession of the tenement and, therefore, this amount was in "trust" with the respondent. There is no question of its becoming time-barred nor there was any need for the appellant to claim its adjustment. It may again be observed that .The learned Rent Controller by his aforesaid order, dated 9th August, 1975 had directed the respondent to refund the above amount to the appellant on receiving the possession of the tenement. No appeal was filed against the above order by the respondent but the learned appellate Court deleted this portion of the order. Be that as it may, in my view the learned Rent Controller after having come to the conclusion that the respondent had a sum of Rs, 7,000 with him received from the appellant was not justified in exercising the discretion by ordering ejectment. It is also an admitted position that the appellant had tendered rent through money orders Exhs. 17 and 18 and also deposited the rent with the Rent Controller for the period in question except the period of four months from January to April, 1971 though he had not deposited rent for the period from February, 1972 to July, 1972. In the instant case I would allow the above second appeal and would set aside the two orders under appeal with no order as to costs.