' The appellant has challenged the judgment, dated 14th March, 1977 of the 6th Additional District Judge, Karachi in Rent Appeal No, 592 of 1975, in second appeal under section 15(4) of the Sind Urban Rent Restriction Ordinance, 1959.
' The facts leading to the filing of this second appeal are as under :
1. The appellant is the tenant of respondent in respect of flat No, 6/G, 4th floor, Platinum Co- operative Housing Society, Garden West, Karachi, originally at the monthly rent of Rs, 275 and thereafter at the agreed rent of Rs, 300 per month from 1st May, 1971. The agreement for lease from 1st April, 1969 for a period of 11 months till 28th February, 1970 was executed in writing. A sum of Rs, 1,000 was deposited by the tenant with the landlady as security for proper fulfilment of the terms of agreement on the part of the tenant and the same was refundable by lessor on the expiry of the period of lease subject to deductions if any for any loss caused due to damage to the premises.
2. On 1st February, 1973 the respondent filed an application under section 13 of the Sind Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as the Ordinance), in the Court of 13 Civil Judge and Controller, Karachi. The grounds for ejectment taken in the aforesaid application were that the appellant had defaulted in the payment of rent and a sum of Rs,,700 was due and payable to the applicant (respondent herein) as rent for the period ending January, 1973 which had not been paid in spite of repeated demands and that the applicant required the premises in good faith for her own occupation and for the occupation of her children.
3. The appellant in her written statement denied the rate of rent which according to her had initially been agreed at Rs, 275 per month inclusive of electric charges but when separate electric meter was installed it was agreed that the rent would be Rs, 265 per month and the tenant should pay the charges for electricity consumed separately. It was further pleaded that the appellant had never agreed to increase the rate of rent from 265 to 300 per month. The appellant in the written statement also denied the alleged default in the payment of rent and took the plea that she had been making payments to the applicant and the Platinum Co-operative Housing Society and at the time that the ejectment application was filed no rent was due from her. With regard to ground about bona fide personal requirement the appellant denied the existence of the ground and it was her case that the ejectment application had been filed to put pressure on her to increase the rate of rent from Rs, 265 to Rs, 350 per month which demand she had refused.
4. On the pleadings of the parties the learned Controller settled the following issues :
(1) whether the opponent has committed default in the payment of rent due under section 13(2) (1) of the West Pakistan Urban Rent Restriction Ordinance, 1959 ?
(2) whether the applicant requires the premises in good faith for her own occupation and for the occupation of her children ?
(3) what should the decree be ?
5. In the proceedings before the Controller the respondent gave evidence in support of her application and produced the agreement of lease. She also examined witnesses Amir Ali Khoja, Chairman of Ismailia Platinum Co-operative Housing Society and Hassan Ali, her brother. On the other hand, the appellant herself gave evidence in support of her contentions.
6. The learned Controller gave finding with regard to issues of default in the payment of rent and requirement of the premises in good faith by the landlady, in her favour with the result that he allowed the application and directed the appellant to put the respondent in possession of the premises within a period of one month from the date of the order.
7. Against this decision of the learned Controller, the appellant filed first appeal which was incidentally heard by the 6th Additional District Judge, Karachi who decided the issue with regard to the premises being in good faith required by the landlady against the landlady but maintained the finding of the learned Controller with regard to default in the payment of rent and dismissed the appeal further directing the appellant to vacate the premises within a period of three months from the date of the judgment.
8. I have heard Mr. Mubarak Hussain Siddiqui, the learned counsel for the appellant and Mr. Raja Sher Muhammad Khan, the learned counsel for the respondent. In view of the fact that no cross appeal has been filed on behalf of the landlady against the finding of the first appellate authority on the point of personal requirement of the premises by the landlady, the only issue that has to be considered is whether the concurrent findings of the two lower Courts with regard to default in the payment of rent and the consequent exercise of discretion against the tenant should be interfered with in the second appeal or not.
9. At the outset it may be observed that Mr. Raja Sher Muhammad Khan, Advocate for the respondent has raised the contention that concurrent findings of the learned lower Courts with regard to default in the payment of rent cannot be interfered with in second appeal. He has relied upon the decision of the Lahore High Court in Khuda Bakhsh v. Muhammad Yousuf(1). The aforesaid decision was in respect of the ground of requirement of premises in dispute in good faith for reconstruction and it was held that the concurrent findings of fact by Courts below were unexceptionable in the circumstances of the case and further that the plea of personal requirement and plea of reconstruction of the premises were not mutually destructive. The facts of the instant appeal are different in that the concurrent findings of the two learned lower Courts are with regard to default in the payment of rent.
(1) PLD 1976 Lab. 275
10. In Zahid Hussain Khan v. Muhammad Abdul Ghani (1) a decision of this Court, it was inter alia observed that the finding on question of default by tenant in payment of rent was not a finding of fact but a finding on mixed question of law and fact. It was further held that such concurrent findings of lower Courts can be displaced by the High Court in second appeal. Reliance was placed on the decision of the Supreme Court in Muhammad A lam v. Noor Muhammad (2) wherein their Lordships of the Supreme Court had held that the finding on the question that there was default by the tenant in the payment of rent was a finding on mixed question of law and fact and such concurrent findings of the Courts below could be displaced by the High Court in second appeal.
11. With regard to the ground of default in the payment of rent, the respondent in her application under section 13 of the Ordinance had stated in para. 3 thereof that sum of Rs, 1,700 was due and payable by the opponent (appellant herein) to her as rent for the period ending January, 1973 which had not been paid in spite of repeated demands. It is apparent from a perusal of the evidence given by the respondent/landlady that according to her the tenant/appellant had not paid rent to her since March, 1972 but in her cross-examination she made admission that she had been away from Karachi and had been staying with her son in Rawalpindi. She further stated that she had given power of attorney to her sister Gulshan Bai for looking after the affairs of her flat but she had not intimated the appellant about the appointment to her sister as attorney. She further admitted that she did not give her address of Rawalpindi to the appellant. She further admitted that Rs, 1,000 which were initially deposited at the time of execution of the lease deed still were lying unadjusted with her. There is also admission by Amir Ali Khoja, Chairman of Ismailia Platinum Co- operative Housing Society, that the appellant had made payments towards dues of the society against the flat of the respondent in the account of the respondent and the amount had been adjusted in the account of the respondent. Hassan Ali, the other witness examined by the respondent also admitted in his cross-examination that the respondent is not a permanent resident of Karachi.
12. On the other hand, the appellant produced receipts issued by the Ismailia Platinum Co- operative Housing Society Limited in respect of payments made into the account of the landlady.
The learned Controller has discussed this aspect of the case and has mentioned in his judgment that the amount paid by the appellant before filing of the rent application i,e, before 1st February, 1973 came to Rs, 1,769 whereas the total amount of arrears for the period from March, 1972 to January, 1973 comes to Rs, 2,915 and after deducting the amount shown to have been paid into the account of the landlady only a sum of Rs, 1,145 would still be outstanding. The learned Controller did not consider the fact about Rs, 1,000 which have been lying with the respondent as according to him the aforesaid amount could not have been adjusted against the arrears of rent. On the same point the learned first appellate Court observed that the respondent had admitted that the appellant had deposited Rs, 1,600 with the society in her name and at the time of filing rent application the appellant was in arrears to the tune of Rs, 1,700. The first appellate Court further observed that the landlady had admitted that she had to pay Rs, 5,000 to the society, towards the price of the fiat and the society had made such demand in writing. But she had not paid the dues as she did not have the funds. The respondent had also
(1) PLD 1979 Kar. 628 (2) 1973 SC Nli R 606 admitted that at the time when she filed rent application a deposit of Rs, 1,000 was lying with her which had not been adjusted by her towards rent. The learned first appellate Court however, observed that under the circumstances stated, the landlady not having left her address and not having informed the tenant about appointing of attorney the appellant was left no other course but either to deposit the rent in the Court of Rent Controller or with the society, to whom the respondent had to pay Rs, 5,000 against the price of flat. The appellant however, preferred to pay the rent to the society. It was further observed that the respondent had not stated in her deposition that she would claim the adjustment of the amount paid to the Society. On the contrary she had admitted that the appellant had deposited Rs, 1,600 in her account with the society at the time of filing of the ejectment application which was construed to be indicative of the fact that the respondent had accepted the amount deposited by the appellant in her account with the Society.
The conclusion arrived at by the learned first appellate Court was that after counting for the amount deposited by the appellant from the amount of rent due only a sum of Rs, 1,145 were still outstanding against the appellant as arrears of rent and amount of Rs, 1,000 was lying with the respondent as deposit refundable on the expiry of the lease agreement.
13. On behalf of the appellant Mr. Mubarak Hussain Siddiqui, the learned counsel has raised the contentions that firstly even if there was default in the payment of rent as found by the learned lower Courts the Controller had the discretion not to eject the tenant specially considering the facts of the case and secondly he has contended that the amount of Rs, 1000 which was liable to be refunded on the termination of the agreement of lease was, therefore, in the nature of loan due to tenant from landlady and, therefore, it should have been considered as a further fact in favour of the tenant by the learned lower Courts. The learned counsel elaborating his first contention has stated that since the landlady was not residing at Karachi and had not given any address to the tenant or even informed her about the appointment of an attorney and further since the landlady had accepted the payment of amounts credited in her account with the Society there could be said to have been accepted the practice of payment of rent between the parties under which the landlady was paid the rent on demand and otherwise the rent was being deposited in her account with her consent. On the point with regard to Rent Controller having discretion to decline to eject the tenant he has referred to Amir Ali v. Mrs. Alima Ahmad (1) a decision of this Court, wherein it was inter alia observed that the word "shall" used in section 13 (6) of the Ordinance made it apparent that the Controller had option in the matter of directing the tenant- to Rut the landlord in possession of the building under section 13(2) aforesaid. The discretion it was further argued had not been exercised judicially in the instant case. It is apparent from the evidence on record that a practice of payment of rent as already stated had continued and before the tenant could be burdened with committing default by following the aforesaid practice, it was for the landlady to at least give notice or express a desire for the change of the practice. The default in the circumstances stated, by the tenant should not have been considered to be deliberate and on the contrary the payment of rent in the account of the landlady with the Ismailia Co-operative Housing Society Limited shows that every endeavor was made to make a,
(1) PLD 1981 Kar. 150 #TBS
(1) PLD 1980 SC 298 #TBE proper tender and payment of rent. It may here be observed that the plea about the mode of payment of rent had been taken in the very written statement filed at the early stage of the proceedings.
14. With regard to the deposit of Rs, 1,000 as security, para. 3 of the agreement of lease mentions that the amount was to remain as security deposit for proper fulfillment of the agreement and was refundable to the lessee on expiry of the period of the agreement. There is no doubt about the fact that the lease agreement was only for a period of 11 months and1 had expired, the lessor under the agreement of lease was, therefore, liable to return the security deposit to the lessee on expiry of the period of lease but the mere fact that the lessor had not returned the amount or the lessee had not demanded the same the fact that lessor stood indebted to the lessee to the extent of amount should not have been overlooked. In Muhammad Yousuf v. Abdullah (I), a decision of the Supreme Court where the landlord had failed to return to the appellant the 'security deposit' of Rs, 1,000 despite the expiry of the lease agreement, it was observed as under : ' 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 deposit with the respondent. This he did not do, but even on the footing that this resulted in a failure to pay rent within 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 deed of the eviction application filed against him, we have no hesitation in exercising our discretion in his favour."
Under the circumstances stated it appears that in the instant case the exercise of discretion by the learned Controller and the learned first appellate Court was not in accordance with the principles laid down by the superior Courts. The appeal of the tenant is accordingly allowed and the discretion exercised in her favour. The orders of the Courts below with regard to ejectment of the appellant are set aside. However, under the circumstances no orders with regard to payment of costs are being passed.