' This appeal is directed against the order of the Controller granting ejectment application of the respondent on the ground that the appellant has committed default. Under a rent agreement, dated 1st October, 1973 Shop No, 4-A Badar Market was let out to the appellant at Rs, 140 p.m. The agreement provided that the tenancy shall be for a period of 11 months and Rs, 2,000 was deposited with the respondent. After two months with the consent of the respondent the appellant shifted to shop No,
1. The respondent has admitted that the tenancy in shop No, 1 continued on the same terms and conditions on which the previous shop was let out to the appellant. The respondent alleged that from November, 1974 to October, 1975 the appellant has failed to pay the rent and it was further stated in the ejectment application that out of the deposit of Rs, 2,000 the respondent has advanced a loan Rs, 1,030 to the appellant which should be treated as arrears of rent. He, therefore, claimed that total arrears of rent amounts to Rs, 2,680. The appellant contested the proceedings and pleaded that the rent has been paid and further that on adjustment of the deposits there is no default. From the evidence it seems that the appellant has taken the plea that the rent was paid, but it has not been proved. The non-payment of rent from November, 1974 to October, 1975 is established, but the question is, whether in view of the deposit made with the respondent a discretion could be exercised in favour of the appellant. The admitted position is that the deposit of Rs, 2,000 was made to the respondent under agreement, dated 1st October, 1973 which was for a period of 11 months. The same terms and conditions of agreement, as admitted by the respondent, continued even after the appellant was shifted to shop No,
1. This agreement expired on 30th September, 1974 but the amount of deposit remained with the respondent.
' Mr. Abdul Faheem the learned counsel for the respondent has contended that as the appellant continued to pay rent upto October, 1974 i,e, even after expiry of the agreement presumption should be drawn that there was no agreement between the parties for adjustment of the amount deposited by the appellant. It is difficult to draw such presumption particularly so when the respondent has not filed the agreement, dated 1st October, 1973 which would have clearly determined the nature of the deposit. Moreover, after the expiry of agreement the appellant paid rent for one month only and such payment cannot lead to the presumption as suggested by the respondent. The respondent has taken the plea that out of Rs, 2,000, Rs, 1,000 was advanced as a loan to the appellant. In this regard the learned counsel for the respondent has referred to paragraph 6 of the ejectment application, where this fact has been pleaded. The learned counsel contended that as this plea has not been denied in the written statement it should be deemed to have been admitted by the appellant. The contention does not seem to be correct as in para. 8 of the written statement, it has been stated that the facts which have not been specifically admitted are denied, and the respondent is put to strict proof thereof. As the rules of pleading contained in Code of Civil Procedure are not strictly applicable in rent proceedings in my opinion such averment is a sufficient denial of the respondent's allegation. Furthermore, the respondent, in support of his allegation that Rs, 1,000 was advanced as a loan has not produced any evidence except his own words. I am not inclined to accept this plea that Rs, 1,000 was advanced to the appellant, and therefore, I am of the opinion that Rs, 2,000 remained intact deposited with the respondent.
Mr. A. Q. Malik the learned counsel for the appellant has referred to PLD 1980 SC 298 where discretion was exercised in favour of the tenant as the deposit which was lying with the landlord was sufficient to cover the rent which became due after the expiry of the agreement. In the present case also the admitted position is that agreement, dated 1st October, 1973 has expired on 31st September, 1974 and the amount of Rs, 2,000 has remained deposited with the respondent. The respondent has claimed default in respect of November, 1974 to October, 1975. The learned counsel has contended that in these circumstances the default if any was merely a technical one and not willful. The deposit with the respondent after the expiry of agreement is sufficient to cover the arrears. In these circumstances the default was technical in nature and it was an appropriate case for exercise o descretion in favour of the appellant. The impugned order is set aside and the appeal is allowed.