' The appellant is a tenant in respect of a shop located in Nursery, Commercial Area, P.E.C.H. Society, Karachi. Ejectment Application No,1601 of 1976 was filed by the respondent/landlord for the ejectment of the tenant from the shop in question on the ground of default in the payment of rent from January, 1976 to April, 1976. A written statement was filed resisting the ejectment application with the specific averment by the appellant that at the time of inducting the appellant as a tenant, the respondent had taken advance rent for two months with a promise that he would adjust the said amount in future rent but that amount was still lying with the respondent and adjustment was not granted by him. It was further submitted that rent in fact had been paid for the period in question but receipt had not been issued. The parties examined themselves in evidence. No other witness was examined by either party. By order dated 12th February,1978, the ejectment application was dismissed by the Rent Controller. An Appeal No,179/78 was filed by the respondent which was allowed by VIIIth Additional District Judge, Karachi by order dated 13th May,1980. The order of the First Appellate Authority has been challenged in this Second Appeal filed by the tenant. I have heard Mr. Abdul Majeed Khan, learned counsel for the appellant and Mr.Sher Afgan, learned counsel for the respondent.
2. Exhibit 2 is an agreement of tenancy dated Ist December,1973 between the parties. Period of the lease is not mentioned in the agreement. Admittedly rate of rent is Rs,425 per month. According to the lease the tenancy commenced from 1st December,1973 and this is also the evidence of both the parties. It is, therefore, taken as an admitted position that the tenancy had commenced on 1st December,1973. Exhibit 7 is a receipt dated 27th November,1973 signed by the respondent acknowledging a sum of Rs,1,275 as rent for three months that is October, November and December, 1973 from the appellant in respect of shop in question. As observed earlier, the tenancy had commenced from 1st December,1973 but this rent receipt (Exh.7) shows that a sum of Rs,1,275 as rent for October, November and December, 1973 had been received by the respondent. Other receipts have been produced which show that rent was received for later months that is from January, 1974. On a question from the Court Mr.Sher Afgan, learned counsel for the respondent stated that a sum of Rs,850 collected as rent for the months of October and November, 1973 was lying with the respondent and the same had not been adjusted against the rent. The factual admitted position therefore that emerges is that a sum of Rs,850 as rent paid on 27th November,1973 has been lying with the respondent and this amount has not been adjusted against the rent. It has also been observed that the tenancy commenced from 1st December,1973 and not earlier. In my view, this amount of Rs,850 which was paid as rent and was not adjusted against the future rent is liable for adjustment against the rent due or payable by the appellant. It was argued by Mr.Sher Afgan, learned counsel for the respondent, that this amount is not adjustable against the rent and if this was the case of the appellant, this should have been proved. It has already been noted that the amount of Rs,850 was paid as rent and therefore it could not be treated as security deposit not adjustable against the rent. The receipt (Exh.7) shows that this amount was paid as rent and therefore it was adjustable against the rent.
3. In the ejectment application the case of the respondent was that rent had not been paid since January, 1976. An amount of Rs, 850 paid as rent and which was not adjustable against the rent, being adjustable, reduced the claim of the respondent for rent from March,1976 as the amount of Rs,850 adjusts the rent for January and February, 1976. Now the ejectment application was filed on 3rd April, 1976. If therefore the period of 60 days as provided under section 13(2) of the 1979 Rent Ordinance is applicable, there will be no default for which the appellant can be ejected. It was contended by the learned counsel for the respondent that the term in the agreement of tenancy regarding the payment of rent in advance is applicable and as such the period of 15 days provided under section 13(2)(i) is applicable. I do not agree. Although no period is provided in the agreement of tenancy, the same being executed on a four rupees stamp paper and being unregistered cannot be taken to be an agreement for one year or more. The said agreement at best can be treated as an agreement of lease for a period of less than one year. The period of one year had expired on 30th November,1974 and as such the said agreement cannot be relied upon by the respondent the same have ceased to be in operation.
4. It was contended by the learned counsel for the respondent that in the ejectment application it was mentioned that the rent was payable in advance on the first day of agreement and this was admitted by the appellant., may be observed that the averment in that regard was admitted in para. 1 of the written statement with the addition that this was under the agreement dated 1st December,1973. As already observed, the agreement dated 1st December,1973 was no longer in operation after 30th November,1974. In these circumstances it cannot be held that there was an agreement of tenancy between the parties which provided for the rent to be paid in advance. Even if the contention of the learned counsel for the respondent is accepted that the rent was payable in advance under the agreement of tenancy, this was not a case in which ejectment should have been ordered. As observed earlier, the amount of Rs,850 having been adjusted towards the rent for January and February, 1976, only the rent of March was payable and in clause (4) of the agreement dated 1st December,1973 it was provided that the appellant will not be ejected from the premises on any ground including the ground of personal need but the appellant will be liable to be ejected if he fails to pay two months rent. At the time the ejectment application was filed two months rent was not due and even if the agreement of lease dated 1st December,1973 is taken to be in operation at the relevant time, in view of clause (4) of the agreement, discretion would have been exercised in favour of the appellant.
5. The learned First Appellate Authority has not considered the question of adjustment of rent paid vide exhibit 7 and has not also considered that the agreement of lease had expired and was not applicable and in any case has not considered para. 4 of the agreement dated 1st December,1973.
In my view the order by the First Appellate Authority cannot be sustained.
As a result Second Appeal No,250/80 is allowed, the order dated 13th May,1980 in Appeal No,179/78 of the learned VIIIrd Additional District Judge, Karachi is set aside and the order dated 12th February, 1978 of the learned Rent Controller dismissing the ejectment application is maintained.
' There will be no order as to costs.