1. ' This First Rent Appeal under section 21 (2) of the Sind Rented Premises Ordinance, 1979 is filed by the tenant/appellant against the order of the eviction passed by the Rent Controller directing him to vacate the premises and hand over its vacant possession to respondent on the ground of wilful default and personal requirement of the respondent's son.
2. ' The Rent Application was filed by the appellant on the ground that the respondent had defaulted in payment of rent from December, 1977 and that the disputed premises which is a shop is required by the applicant for personal and bona fide use of his son Jamil Ahmad whom he wanted to settle in an independent business. The application was contested by the appellant and accordingly the Rent Controller framed the following issues:-
(1) Whether the opponent has committed wilful default in payment of rent?
(2) Whether the applicant requires the disputed shop for personal and bona fide use of his son?
(3) Whether the application is not maintainable at law?
(4) What should the order be?
3. ' Before the Rent Controller issue No. 3 was given up and on issues Nos. 1 and 2 the Rent Controller found in favour of respondent and directed the ejectment of the appellant. I have heard the learned counsel for the parties at length.
4. ' On Issue No. 1 the learned counsel for the appellant contended that even it be accepted that on the date of filing of ejectment application the appellant was in arrears of rent from 1st December, 1977 then there was no default as the respondent was admittedly holding with him a sum of Rs.
5. 4,000 as deposit, which was paid to him by the appellant at the commencement of tenancy and, if the arrears of rent upto the date of filing of rent application are adjusted from the deposit the appellant was entitled to the refund of substantial amount. It is contended that the agreement of tenancy which was executed between the parties on 1-11-1973 was valid only for eleven months and, thereafter it was not renewed and, therefore, after the expiry of lease the appellant was entitled to the refund of deposit which was held by the respondent. In support of his contention, the learned counsel relied on a unreported decision given by me in F.R.A. No. 41 of 1983 Himayat All Shair v. Abdul Qavi and others decided on 10th May, 1983, at Hyderabad. The learned counsel also relied on the decision in the case of Yousaf All v. Abdullah PLD 1980 SC 298 which is referred in Himayat Ali Shair's case. Reliance is also placed by the learned counsel on the case of Syed Farzand v. Khalilur Rehman 1981 CLC 1223. The learned counsel for the respondent, on the other hand, relied on another unreported decision in Second Appeal No. 2 of 1983 Syed Makhdoom Hussain v. Fakhruddin also decided by me on 12-5-1983 at Hyderabad and the case of Abdul Aziz Beg v. Mushtaq Ahmed 1980 SCMR 834 and contended that as the-agreement between the parties specifically provided that the deposit is refundable only at the time of vacation of premises by the appellant and cannot be applied toward monthly rent, therefore, the deposit of Rs. 4,000 was not adjustable towards arrears of defaulted rent. The learned counsel for the respondent suggested that there being conflict in the views expressed in the cases of Yousaf All and Abdul Aziz Beg, I should prefer the decision in the case of Abdul Aziz which is unanimous as against the view in Yousuf Ali's case in which one of the learned Judge expressed contrary view. I, however, did not find any inconsistency or conflict in the views expressed in the cases of Muhammad Yousaf and Abdul Aziz Beg which were decided by the same Bench of the Supreme Court. The decision in Abdul Aziz Beg's case is, dated 24th May, 1980 while the decision in the case of Muhammad Yousaf's case is, dated 30th August, 1980. Both these cases were decided by the same Bench of the Supreme Court consisting of Dorab Patel, Acting Chief Justice (as he then was), Muhammad Haleem, Abdul Kadir Shaikh and Dr. Nasim Hasan Shah, JJ. In Abdul Aziz Beg's case the landlord was holding deposit of Rs. 825 in addition to advance rent for one month. The deposit of Rs. 825 was made by the tenant as security for damages and was to be refunded to the tenant at the termination of tenancy if no damage was found. The ejectment case was filed by the landlord against tenant in Abdul Aziz Beg's case while the agreement of tenancy, which was only for 11 months, was still enforced. It was in these circumstances, held in Abdul Aziz Beg's case that in the event of default the tenant could not claim adjustment of arrears of rent against the deposit of Rs.825. It is quite clear from the facts in Abdul Aziz Beg's case that the contention, that after the expiry of lease agreement the landlord could not be allowed to hold the deposit and same could be adjusted towards arrears of rent was not at all considered by the Court. In Muhammad Yousaf's case the application for eviction of tenant was brought by the landlord after expiry of the period of lease and it was specifically contended before the Court that the deposit held by the landlord in that case, after expiry of period of lease could be adjusted towards arrears of rent due on the date of filing of eviction application.
6. The provision contained in the lease in Muhammad Yousaf's case providing forfeiture of deposit by the landlord was held as void and it was further held in the majority decision of that case that after expiry of the period of lease the tenancy is governed under the statutory provision of the Rent Restriction Ordinance and, therefore, the deposit given by the tenant at the commencement of the tenancy in the absence of renewal of the tenancy agreement or in the absence of continuation of the old agreement will be available for adjustment against the defaulted rent. Thus, there is no conflict in the views expressed the cases of Abdul Aziz Beg and Muhammad Yousaf. The application for eviction in Abdul Aziz Beg's case filed during the currency of lease agreement and, therefore, there was no argument before the Court that the tenancy having expired the tenant was entitled to the adjustment of defaulted rent from the deposit held by the landlord, while in Muhammad Yousaf's case the ejectment proceedings was filed after the expiry of the rent agreement and it was contended before the Court specifically that in the absence of rental of lease the tenant was entitled to adjustment of rent from the deposit held by the landlord under expired lease and this contention was upheld. Similarly in Second Appeal No. 2 of 1983 (Makhdoom Hussain v. Fakhruddin) decided by me on 12th May, 1983, relied by the learned counsel for the respondent, I had found that the sum of Rs. 1,000 which was kept as deposit with the landlord could not be adjusted towards arrears of rent as according to the terms of lease between the parties which was enforced, at the time of institution of ejectment case, it was not adjustable during the continuation of tenancy towards the defaulted rent for any particular month. I had accordingly disallowed the contention of the learned counsel appearing for the tenant in that case that the amount of Rs.1,000 was adjustable towards arrears of rent. It may, however, be mentioned here that in the case of Muhammad Yousaf the further observations of the Court at page 303 are relevant for the present case which are as follows:- "Mr. Malik vehemently submitted that this assumption was not correct and this is the real point for determination in the appeal. Therefore, we would observe that an agreement can only be made by the consent of the parties, and if an agreement is for a fixed period, it comes to an end on the expiry of the agreed period, unless it is renewed by both the parties. Now, in the instant case, on the plain language of clause 1(d) of the lease agreement, the lease had come to an end on 10-1-1965, therefore, it would have remained in force only if the appellant and the respondent had entered into a fresh evidence of any such agreement, nor as the plea been taken by the respondent in his eviction application that the lease agreement had been extended by the mutual consent. But as, an agreement can also be implied from the conduct of the parties, in the instant case, can an agreement to renew the lease be spelt out fom the mere fact that the appellant had continued to pay rent to the respondent at the rate of Rs. 200 per month despite the expiry of the agreement between them?"
7. 'The above observation shows that after expiry of the lease agreement, the sum could be kept alive by the parties either by entering into a fresh agreement or by mutual consent which may be implied in their conduct. In the case before me the respondent in clear terms A pleaded that the tenancy is under an agreement which provided that the deposit of Rs. 4,000 was refundable on surrendering vacant possession of premises and it is not adjustable towards the rent. This averment of the respondent in the application was not disputed by the appellant and the term relating to deposit mentioned in para. 3 of the application were accepted as correct. Apart from it, the appellant neither in his written statement nor in cross-examination of respondent suggested that the tenancy agreement between the parties has come to an end and he was entitled to get the arrears of rent adjusted against the deposit held by respondent. He also did not state se, in his evidence before the Controller. In this state of evidence, even on the basis of the decision in Muhammad Yousaf's case the appellant was not entitled to the adjustment of the rent from the deposit of Rs. 4,000 held by the respondent. In Himayat Ali Shair's case (F.R.A.No. 41 of 1983) relied by the appellant I had allowed adjustment of defaulted rent against the deposit, as I reached the conclusion in that case that the agreement dated 1-3-1974 executed between the parties was not extended after its expiry and accordingly on the ratio in Muhammad Yousaf's case I held that the deposit available with the landlord after the expiry of lease agreement was adjustable towards arrears of defaulted rent. In the present ca3e, the respondent had alleged default from December, 1977 and before instituting the case he served a Notice, dated 11-6-1978 on the respondent. This Notice was replied by the appellant after about two months in which he took the plea that he had paid a sum of Rs. 1,800 in May, 1978 for which no receipt was issued by the respondent. It may be mentioned here that the tenancy agreement between the parties provides that evey time the rent is paid by the appellant, He will obtain receipt for it and verbal plea of payment will not be accepted. In view of existence of this provision in the tenancy agreement between the parties and the conduct of the appellant that he replied the Notice of the appellant in which it was alleged that he was in arrears of rent from December, 1977, after two months, coupled with the facts that there was evidence available on record to show that whenever respondent received rent, he issued receipt for it, the Rent Controller rightly held the appellant as defaulter in payment of rent. I accordingly maintain the findings of Rent Controller on issue of default.
8. ' The other ground on which eviction of the appellant has been ordered by the Rent Controller is personal and bona fide requirement. The learned counsel for the appellant assailed the findings of the Rent Controller on the ground that the respondent had admittted in his evidence that he owned other shops as well in the Urban Area and that his son Jamil Ahmed for whose benefit the premises was got vacated was residing with the respondent, and therefore, the case for personal requirement was not made out. It is also contended that the respondent is an old man of about 80 years of age who is half blind and is unable to move about and, therefore, it is natural that his son Jamil Ahmed should assist him in his leather business which the respondent is doing for the last about ten years instead of asking for another shop to establish his son in a new business. None of these contentions have any substance. Mere owning of other shops by the respondent in the same urban area was not enough to defeat the claim of respondent. The appellant in his evidence clearly stated that he was not occupying any other shop in the area where he could accommodate This son for setting up a new business. No question in cross-examination was put to respondent that he was in possession of more than one shop in the same area. The respondent according to his evidence which is gone unchallenged possessed only one shop/gpdown where he is carrying on his own business of leather work, while the shop in occupation of the appellant was required by him to settle his son in business of electrical goods. It has come in evidence that the other son of the respondent is also doing a separate business in another shop and, therefore, the anxiety of respondent to settle his other son also in an independent business is not at all unreasonable. Mere fact that the respondent was owner of other shops as well was wholly irrelevant, as he has the sole prerogative to select any one of shop out of the shops owned by him for use of his son. The other contention of the learned counsel that the respondent is an old man of about 80 years of age and half blind and unable to move about, is equally without any merit.
9. Neither any such case was set up or pleaded by the appellant in his written statement nor any such question was asked to the respondent or his son Jamil Ahmed in their cross-examination.
10. After going through the evidence on this issue I do not find any reason to disagree with the Rent Controller.
11. ' As a result of the above discussion I find no merit in the appeal which is dismissed with costs. The appellant is, however, allowed four months time to vacate the premises.