1. ' This first rent appeal is directed against the order, dated 31st July, 1980 in rent case No, 4450 of 1976 passed by the learned XXIVth Civil Judge and IVth Rent Controller, Karachi.
2. ' The facts which give rise to this appeal are that the applicants are the landlord of the property known as Haji Adam Chambers, Altaf Hussain Road, Karachi. The respondents are the tenants in respect of office premises admeasuring 1,428 sq. Feet on the 4th floor of the said building, at monthly rent of 892.50 payable on first of each month. The respondents are also entitled to pay Rs, 28.56 on account of lift charges. The applicants served notice, dated 14th October, 1976 by which called upon the respondents to clear arrears of rent for four months commencing from 1st July, 1976 to 31st October, 1976 and also to pay betterment tax at the rate of 5% with effect from 1st July, 1975. Thereafter the appellants filed an ejectment application on the ground of default. The respondent filed written statement. The respondents have averred therein that they have not committed any default. They also have averred that the appellants have intentionally allowed the rent to be accumulated to create a ground for ejectment.
3. The learned Rent Controller by his order dated 27th April, 1978 framed the following issues :-
(1) Whether the opponent has committed default ?
(2) What is the rate of rent ?
4. ' The applicants examined, Mr. Muhammad Iqbal Memon the Rent Collector and the respondents examined their partner Mr. Naseer Vohra. The learned Rent Controller after recording the evidence and the hearing the Advocates of the parties awered Issue No, 1 in the negative and Issue No, 2 held that the rate of rent is Rs, 892.50.
5. ' The present appellants have challenged the above findings of the Rent Controller given against them by filing this appeal under section 21 of the Sind Rented Premises Ordinance, 1979.
6. ' As regards the alleged default for four months, the learned counsel for the appllants in the first instant pointed out that in the application the plea was raised in para. 2 of the application. The respondents denied that they have committed any default in payment of rent. It is an admitted position that the tenancy was commenced from 1st December, 1974 and before taking possession of the disputed premises the respondents paid three months' rent as deposit to the appellants.
7. ' The learned counsel for the respondents had contended that security deposit of three months was lying with the appellants, and as this deposit was adjustable against the rent due from the respondents, the appellants should have adjusted it accordingly and before the date of the filing of the eviction application the respondents sent aA cheque for Rs, 2,763.18 vide their letter, dated 27th October, 1976 (Exh. 8), and, therefore, no rent whatever was due from the respondents at the date of eviction application. I find that the learned Rent Controller rightly dismissed ejectment application. The reasons given by the learned Rent Controller in my opinion are cogent. Mr. Munawar Malik, the learned counsel for the respondent, relied upon the case of Muhammad Yousuf v. Abdullah (1) at page 306 :- "As, in our opinion the rights and liabilities the amount lying with him for exceeded Rs, 600. It is true that the appellant had demanded the return of his deposit on the expiry of his lease, and further as the debtor, it was for him to find the
(1) PLD 1980 SC 298 ' creditor, therefore, he should have informed the respondent to adjust the arrears of rent against his deposit 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 force, 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 that 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 Or lance in the tenant's favour.
8. Accordingly, even one the footing that the appellant was in technical default in the payment of rent on the date of the eviction application failed 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."
9. In my view the facts in the aforesaid Supreme Court case are similar to the instant case and as it is admitted that an amount of Rs, 2,677.50 is lying in deposit with the appellant if that amount is adjusted there would be no default at all. Mr. A. Razak Puri, the learned counsel for the appellant does not dispute the legal position laid down in the decision of the Supreme Court.
10. For the aforesaid reasons discussed above I concur with findings arrived at by the learned Rent Controller. Accordingly this appeal is dismissed as having no merit. Parties to bear their own costs.