1. ' This appeal is from the order of 2nd Senior Civil Judge and Rent Controller Karachi dated 25-8- 1983 whereby he struck off the defence of the appellant/tenant directing him to vacate the disputed premises and put the respondent/landlord in possession thereof within 60 days of the order.
2. ' Briefly stated the facts of the case are that appellant Agha Mehboob Shah is the tenant of respondent Mst. Zarina Khawaja in respect of first floor of the building constructed on Plots Nos. 454 and 455 in C.P and Berar Co-operative Housing Society, Karachi. The disputed premises was leased out to the tenant w.e.f. 1-8-1977 on monthly rental of Rs.350 payable in advance excluding water, conservancy, electric and gas charges which were to be borne exclusively by the tenant as stipulated in the lease deed executed on 5-8-1977. On 28-2-1982 the respondent filed an ejectment application seeking ejectment of the appellant from the disputed premises on two-fold grounds: default in payment of rent and personal requirement. The tenant resisted his eviction denying the allegations of default and personal requirement.
3. ' During pendency of the ejectment proceedings, the learned Rent Controller passed a tentative order dated 20-12-1982 calling upon the tenant to deposit rent arrears upto November 1982 on or before 1-2-1983 and future monthly rent on or before 10th of each following month. As the appellant failed to comply with the said order the respondent moved an application under section 16(2) Sind Rented Premises Ordinance 1979 praying for striking off the defence of the appellant. On this application the learned Rent Controller passed the impugned order and struck off the defence of the tenant as stated above.
4. ' As is clear from the impugned order, the appellant deposited the rent arrears by due date and thus complied with the tentative order dated 20-12-1982 to that extent. The compliance of the said order in respect of rent arrears is also not disputed by the parties. The only controversy is with regard to depositing of the rent for the month of December 1982. As per tentative order it was to be deposited on or before 10th January 1983. But it was admittedly deposited on 20-1-1983. Thus, there was delay of ten days in depositing of the rent for December. The tenant therefore moved the learned Rent Controller for condonation of the delay, but his application was dismissed. While dismissing his application the learned Rent Controller rightly observed that there was no law authorising him to condone the delay. It seems the learned counsel for the appellant did not contest the view taken by the learned Rent Controller seriously. In fact he could not do so as the learned Rent Controller has no power to condone the delays of above kind.
5. ' However it was vehemently urged on behalf of the appellant that by the time his eviction was ordered by the impugned order the amount of Rs.2,700 which he had deposited with the respondent at the commencement of the tendency was lying intact with the latter and as such instead of ordering eviction, necessary adjustment of the rent due for month of December should have been made from that amount. In support of this argument the learned counsel for the appellant has placed reliance on Supreme Court authority reported as Muhammad Yousif v.
6. Abdullah PLD 1980 SC 298 wherein it was held:- "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 the meaning of section 13 of the said Ordinance, it was 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 the 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."
7. ' As pointed out above, the disputed premises was rented out under the written deed which clearly shows that the lease was valid only for a period of one year and the said period expired on 31st July 1978. It is stipulated in the lease agreement that the landlady had to return the deposit of Rs.2,700 on termination of the lease after making adjustment of outstanding dues, if any. It is an admitted position that although the lease expired on 31st July 1978, the amount of deposit was not returned to the appellant until filing of the ejectment application (i.e 28-2-1982). Therefore in view of the above Supreme Court authority the respondent/landlord was deemed to be in debt to the appellant/tenant to the extent of the amount of deposit on the date when the latter's eviction was ordered (i.e 25-8-1983).
8. ' In reply to the above argument, the learned counsel for the respondent/landlord placed reliance also on the Supreme Court authority reported as Mirza Abdul Aziz Beg v. Mustaq Ahmed Sheikh 1980 SCM R 834 wherein it was held:-- "We pointed out that the appellant had deposited one month's rent in advance and as rightly held by the learned Judge, this advance was adjustable against the rent due from him. But, the appellant had also deposited the sum of Rs.825. However, as this deposit was by way of security against the appellant's liability for damage, if any, to the demised premises, we agree with the view of the learned Judge that this deposit of Rs.825 was not adjustable against the rent due from the appellant."
9. ' It would appear that the above Supreme Court authority is not applicable in the instant case for two reasons firstly that unlike the reported case the deposit in the instant case was intended to be adjusted towards all dues outstanding against the tenant at the time of termination of the lease including obviously any rent arrears and secondly that in the reported case the lease was still in operation when the ejectment of the tenant was ordered whereas in the instant case the lease had terminated about 5 years before the filing of the ejectment application. Even if it is assumed that the amount of deposit in the instant case was also intended to cover only loss or damage caused to the rented premises, such purpose of the deposit ceased on termination of the least agreement.
10. Subsequent to the termination of the agreement, it obviously assumed the compexion of the amount due to be paid by the respondent to the appellant (i.e debt). Thus, since the landlord had the money payable to the tenant in his hands, any rent remaining unpaid (i.e the rent for December) could be deducted from that money instead of ordering ouster of the tenant from the demised premises on the ground of default.
11. ' For the above reasons, the appeal is allowed with no order as to cost.