' This is an appeal under section 21(1) of the Sind Rent Premises Ordinance, 1979, against the order dated 29-7-1981, passed by the Court of IXth Senior Civil Judge and Rent Controller, Karachi in Rent Case No, 1470 of 1980, allowing the application of respondent under section 16(2) of the Sind Rented Premises Ordinance, 1979, striking off the defence and directing the appellant to handover the vacant possession to the respondent.
2. The facts leading to this appeal, briefly stated, are that the appellant is a tenant of the respondent in respect of shop premises at a monthly rent of Rs, 225 since 3rd May, 1976. The respondent on 8-3-1980 filed an application under section 15 of the Sind Rented Premises Ordinance, 1979 for ejectment of the appellant on the ground of default. On 14-5-1980 the respondent filed an application under section 16(1) of the said Ordinance praying for a direction to the appellant to deposit arrears of rent due from February, 1980 till May, 1980 as per the agreement of tenancy between the parties at the rate of Rs, 225 per month. The notice of this application was served on the appellant and the case was adjourned to 28-5-1980. On that date no one appeared on behalf of the appellant, nor any objection was filed in the Court to the said application. The learned Controller on 28-5-1980, passed an order directing the appellant to deposit Rs, 675 being the arrears of rent from February, 1980 to April, 1980 at the rate of Rs, 225 per month in the Court before 31-8-1980. The appellant was further directed to deposit future monthly rent at the same rate of Rs, 225 commencing from the month of May, 1980 on or before 10th of each succeeding month. On 16-12-1980 the respondent filed an application under section 16(2) of the Sind Rented Premises Ordinance, 1979 praying for striking off the defence of the appellant on the ground that the appellant committed default in depositing the rent which was allowed by the learned Rent Controller by his order dated 29-7-1981, appealed against.
3. Learned counsel for the appellant has advanced two-fold contentions : firstly, that the order of deposit of rent is wrong in law in so far as it relates to the deposit of future rent and secondly, the security deposit of Rs, 800 made by the appellant at the time of commencement of tenancy ought to have been adjusted towards arrears of rent.
4. As regards the first contention, it is misconceived, section 16(1) of the Sind Rented Premises Ordinance, 1979 reads as under :- "16. Arrears of rent.-(1) Where a case for eviction of the tenant has been filed, the Controller shall, on application by the landlord and after such summary inquiry as he deems fit to make, determine the arrears of the rent due and order the tenant to deposit the same within such period as the Controller may fix in this behalf and further direct the tenant to deposit monthly rent regulalry on or before the tenth of every month, until final disposal of the case."
5. Section 16(1), as quoted above, imposes a duty on the Controller to determine the arrears of the rent due and order the tenant to deposit the A same on the application made by the landlord. This subsection further provides that the Controller shall also direct the tenant to deposit monthly rent regularly on or before the tenth of every month until final disposal of the case. The first part of this subsection with regard to ordering the payment of arrears is subject to filing an application by the landlord. It means that no order as to the payment of arrears could be passed by thelp Controller unless there is an application moved by the landlord. As regard the second part ordering the tenant to deposit future monthly rent is not subjected to any such pre-condition of making an application by the landlord. The words "further direct" used in the second part of this subsection imply that the power to order for payment of future monthly rent is to be exercised by the Controller independently, without there being any obligation on the part of the landlord to make such application before the Controller.
6. As regards the second contention that the learned Controller ought to have adjusted Rs, 800 paid by the appellant to the respondent as security deposit at the time of commencement of tenancy, learned counsel referred to clause (3) of the Tenancy Agreement filed by him along with his memo. Of Appeal which reads as under "(3) That the tenant has paid to the landlord a sum of Rs, 800 (Rupees eight hundred only) as fixed deposit which shall be refundable to the tenant, when he vacates the shops, after deducting the dues on account of arrears of rent, charges and damages if any."
Learned counsel further relied on three judgments reported as Shaikh Bashir Ahmad v. Nisar Ahmad and another (I), Muhammad Yousuf v. Abdullah (2) and Mst. Ghulam Sakina v. Khaliq Bari (3).
7. All the three cases cited by the learned counsel for the appellant were decided after the evidence of the parties was recorded in the main case where the agreement of tenancy was produced in the evidence and adjustment of the security deposit towards the arrears of rent was claimed and argued.
8. In the first-named case the monthly rent of the shop was Rs,
60. On 4-12-1963 a sum of Rs, 2,000 had been advanced by the respondent according to which Rs, 30 was to be adjusted towards the monthly rent and Rs, 30 towards the said advance. The whole amount of Rs, 60 being the monthly rent of the premises was thus payable after the amount of Rs, 2,000 was to be adjusted in half of the rent. The application for ejectment proceeded on the ground of default from January to May, 1960. Learned Single Judge observed that the amount was liable to adjustment towards the rent and, therefore, ought to have been taken into consideration, while passing the order on the ground of default.
9. In the second-named case the appellant had to deposit a sum of Rs, 1,000 "as security deposit to the lessor, which shall be confiscated by the lessor/landlord in case the lessee does not pay rent for consecutive three months and/or does not give vacant possession to the lessor/landlord at the termination of the tenancy.". The Honourable Supreme Court observed that "in the instant case, when the respondent filed his eviction application on the 9th of May, 1970, the appellant was in default in the payment of rent for the month of December, 1969, and for the months of January, and February, 1970. The rent thus due
(1) PLD 1980 Lah. 302 (2) PLD 1980 SC 298
(3) 1984 CLC 71 from him was Rs, 600. But, as against this, the respondent had failed to return to the appellant the "security deposit" of Rs, 1,000, despite the expiry of the lease agreement. The respondent was no doubt entitled to deduct the electricity charges before returning this amount, but even after deducting these charges, the amount lying with him far exceeded Rs, 600"
10. In the third-named case above judgment of the Supreme Court was referred to. The security clause in the agreement, in that case, was to the effect that in case of breach of terms of agreement of tenancy amount of security could be forfeited to landlady. It was thus observed by the learned Single Judge of this Court that the said clause in the agreement providing forfeiture of security deposit was penal in nature and inconsistent with the letter and spirit of the Sind Rented Premises Ordinance, 1979. The amount of security deposit, in the circumstances, could be utilized for adjustment of arrears of rent.
11. I am afraid, none of the three decisions cited by the learned counsel for the appellant apply to the facts of this case. In the first-cited case there was a specific term in the agreement that half of the rent will be adjusted towards the payment of the rent due and half of the amount of deposit will remain with the landlord as advance rent. In the second case decided by the Supreme Court the question of the breach of condition and compensation for the damages claimable under the agreement read with section 74 of the Contract Act was the main plea. The damages having not been proved, the amount of deposit was ordered to be adjusted towards the rent due.
12. In the third case there was a forfeiture clause as to the security deposit liable to be forfeited in case of breach of the terms of the tenancy. So, all the three cases are distinguishable to the facts of the present case in which clause 3 of the agreement provides that the su,n of Rs, 800 as fixed deposit shall be refundable to the appellant when he vacates the shop after deducting the dues on account of arrears of rent, charges and damages, if any. In any case, in the instant case neither any agreement of tenancy has been; produced in evidence nor the plea has been taken in the written objections filed by the appellant in the Lower Court. In fact this plea has not even been taken by the appellant during the course of arguments before the Rent Controller. The only plea which he took before the learned Rent Controller was that the order passed by the Rent Controller ordering the deposit of future rent was bad in law.
13. Learned counsel for the respondent has placed his reliance on a case Mirza Abdul Aziz Baig v.
Mushtaq Ahmed (1). In that case the appellant had also deposited a sum of Rs, 825 but as the deposit was by way of security against the appellant's liability for damage, if any, to the demised premises, the Hone urable Supreme Court agreed with the view of the learned Judge that this deposit of Rs, 825 was not adjustable against the rent due from the appellant. Since the security deposit of Rs, 800 in the instant case is liable to be refundable to the . Appellant when he vacates the premises after deducting the dues on account of arrears of rent, charges and damages, if any, the plea of the appellant's counsel for adjustment of arrears cannot be accepted as in that case there. Will be no security deposit left with the respondent to adjust the other charges and damages, if any, found due against the appellant when he vacates the premises, which he has not so far chosen to do.
(1) 1980 SCMR 834
14. In the result, the appeal is dismissed. The parties will, however bear their own costs.
15. Learned counsel for the appellant now requests that six months' time may be granted to the appellant as the premises is a shop. By consent of the learned counsel for the respondent four months' time is granted to vacate the shop from today subject to his paying future monthly rent regularly.