1. ' Under an agreement of tenancy dated 15-4-1977 the appellant was inducted as tenant in respect of Flat No,3 together with three servant quarters and two garages, situated on the ground floor of the premises bearing No F.T.1/8, 12, Marry Road, Bath Island, Frere Town Quarters, Karachi on monthly rent of Rs,450 p.m. The tenancy agreement was for a period of three years. The respondent filed ejectment application against the appellant on the ground that he has defaulted in payment of rent from 1st July, 1981 to 31st March, 1982 amounting to Rs,4,050. It was further pleaded that in terms of agreement the appellant was to carry out repairs but he has failed to do so and has materially impaired the value and utility of the premises. The appellant denied the claim and pleaded that the respondent No,2 used to collect rent for himself and on behalf of the respondent No,1 but with mala fide intention he stopped collecting the rent from the month of July 1981 and under the circumstances rent from July, 1981 to March, 1982 was tendered through cheque and subsequently through money orders within time but they were not accepted. The cheque though received was not presented for encashment and the money orders were refused.
2. Thereafter, the rent was deposited in Court. The other allegation regarding impairing the value of the premises was denied. The learned Controller by the impugned order granted ejectment only on ground of default in payment of rent.
3. ' Mr.Ziaul Hassan, the learned counsel for the appellant has contended that under the tenancy agreement the appellant had paid Rs,2,700 as deposit and a further sum of Rs,2,700 was paid on 19-4-1977 as deposit of rent for six months which amounts after the expiry of agreement were available for adjustment. Before dealing with this contention it would be proper to first ascertain whether any default has been committed in payment of rent. In the written statement the appellant has pleaded that the rent was being collected by the respondents and they stopped collecting it. Consequently a cheque was sent on 17-10-1981 with a covering letter in which it was stated that the rent had accumulated due to default of the respondents. From the evidence it seems that on 19-10-1981 the respondents had written a letter to the appellant stating that a cheque had been delivered by his wife in the month of July for the monthly rent but it was dishonoured and thereafter no rent was paid. This letter was not replied. From these facts and the plea raised by the appellant it is clear that rent from July upto 17-10-1981 had not been paid. The plea that the respondent had failed to collect the rent which has caused default is neither valid nor proper.
4. ' The learned counsel for the appellant has mainly relied on claim of adjustment of the deposit of two amounts of Rs,2,700. The respondents have denied that two amounts of Rs,2,700 each were deposited. According to them only Rs,2,700 was deposited in terms of agreement executed on 15- 4-1977 and receipt was executed on 19-4-1977. Therefore, both the documents represent the same amount. It is significant to note that in the written statement no such plea has been raised that the appellant had paid two amounts of Rs,2,700. In the correspondence between the parties before filing the ejectment case this fact has not been mentioned in any letter of the appellant. This fact for the first time was introduced in the affidavit of evidence which is an afterthought and a dishonest plea. In my view the appellant had paid Rs,2,700 in terms of agreement dated 15-4-1977.
5. The question then arises whether the appellant is entitled to adjust Rs,2,700 towards the arrears of rent. This amount was paid in terms of clause 9 of the agreement which reads as follows:- "9. That the lessee paid Rs,2,700 as deposit to the lessors for taking possession of the said flat. This deposit shall be refunded to the lessee when he vacates the demised premises and the lease shall commence from 1-5-1977 on- which date the lease shall be inducted in the possession of the demised premises."
6. ' The learned counsel for the appellant has entirely relied on Muhammad Yousuf's case PLD 1980 SC 298. However, the learned counsel for the respondent has distinguished it. In Muhammad Yousuf's case the amount had been deposited which was to be refunded on the expiry of the lease agreement further it was held that under law such amount could not be recovered by way of penalty and thus the amount was illegally held by the landlord. In the present case as is obvious from the agreement the amount was deposited for a specific purpose and on condition that it shall be refunded to the appellant on his vacating the premises. It was not deposit simplicitor or towards the rent nor it has been contended that the amount receive for refund by the respondents under the agreement was illegal. In these circumstances in my view the principle laid down in Muhammad Yousuf's case does not apply to the present one.
7. ' Mr. Ashiq All Abdullah the learned counsel for the respondent has relied on Mirza Aziz Baig v.
8. Mushtaq Ahmed 1980 SC MR 834. In this case the tenant had deposited one month's rent in advance and he had also deposited a sum of Rs,825 as security for damage which was to be refunded to him on termination of tenancy provided no damage has been caused. It was observed as follows: "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. ' Again in Khurshid Khanam v. Malka 1983 CLC 2700 the agreement of tenancy clearly provided that the amount of deposit will not be adjusted towards rent but will be refunded at the time of handing over vacant possession of the premises. In these circumstances it was held that the appellant could not claim adjustment of deposit of Rs,1,040. In the present case also the agreement as quoted above provided for refund of the amount only on vacating the premises, and, therefore, it could not be adjusted towards the arrears of rent. I do not find any reason to interfere with the order of the learned Controller. The appeal is, therefore, dismissed and the appellant is allowed four months time to vacate the disputed premises.