1. ' I have heard both the learned counsel at some length in this First Rent Appeal. The grounds on which the Rent case before the learned Controller was based were several and included personal requirement, sub-letting and damage to the property apart from wilful default in the payment of rents. The Controller has dismissed the application of the landlady on all grounds except that of default and there too the default is limited to non-payment of taxes etc. a contractual obligation of the tenant.
2. ' Mr. Saleem lqbal for the appellant-tenant has basically urged before me two questions, as applicable to the finding of default arrived at by the learned Rent Controller. Firstly, it is said that the ground of default, particularly as regards payments of taxes and service charges was vague and ejectment could not have been ordered on that ground. Secondly, it is contended that even if a case of default was found against the appellant the security deposit in the sum of Rs,6,000 lying with the respondent-landlady could be adjusted in curing the same, if any.
3. ' Now the allegation in regard to the non-payment of taxes and services is categorically made in the Rent case per paragraph 2 thereof where it is stated that the appellant-tenant also failed to render account pertaining to taxes and for that reason also necessary legal consequence should follow. In reply, through its written statement, the appellant-tenant maintained that the taxes and other charges had been paid upto date. It is, therefore, clear that appropriate averments were made not only in the context of default generally but even in relation to taxes and other charges separately, last of which alone have been made the basis of the finding of default by the learned Controller. Accordingly the decisions in Muhammad Younus v. Dr. Muzamil All 1981 CLC 327, Wajahatullah Akhoon v. Mehmoodur Rub 1985 CLC 1949 and Mack Industries v. Haji Abdul Karim and others 1986 MLD 1595 on which reliance has been placed by the learned counsel for the appellant, are not attracted in this case even though the rule about strictness in pleadings, as gernmane to rent proceedings, has now considerably been whittled down upon the Supreme Court dicta in Mst. Saira Bai v. Anisur Rehman 1989 SCMR 1366. The case of the appellant is not even covered by exceptions to the principle in Re: Mst. Saira Bai, as spelled out in Ashraf Alia v. Dr. Asif Majeed 1991 CLC 53. What is more, the learned Controller, as regards appellant's default in the payment of taxes and other charges has essentially relied upon an admission of a partner of the appellant firm. While under cross-examination such partner viz. Nasim Kamal, who initially admitted that water, conservancy, fire, electricity, betterment and professional taxes had not been paid by the appellant since 1979, attempted to improve his statement immediately by adding that in so far as electricity charges and telephone bills were concerned such had been paid upto date.
4. Even if I accept the contention from the side of the appellant that all electricity charges and telephone bills stood paid in view of such explanation, the effect of admission regarding non- payment of water, conservancy, lire, betterment and professional taxes still cannot get wiped off.
5. ' Such payments, apart .From electricity and telephone charges, were also a clear responsibility of the appellant-tenant under clause (6) of the agreement between the parties, the legal position in terms of the Sindh Rented Premises Ordinance, as per section 2(i), being that the concept of 'rent' includes 'water charges, electricity charges and such other charges which are payable by the tenant'. It would follow that any default in the payment of any such charges would tantamount to equal default in the same degree under section 15 of the Sindh Rented Premises Ordinance, 1979 as if that had been default in the payment of rent, pure and simple, itself. With a view to disprove even such default a number of documents have been filed by the appellant in support of this appeal. I have, with the assistance of the learned counsel, gone through. All such documents and find that these pertain to the period subsequent to the filing of the Rent case on 25-1-1982 and none of them specifically covers the period 1979 to January 25, 1982, with regard to which the appellant-tenant was obliged to have shown due payments of the relevant taxes and charges in terms of clause 6 of the agreement inter partes. I cannot also accept the contention of Mr. Salim lqbal that the fact that subsequent payments have been made by the appellant-tenant, as reflected in such documents, would imply that earlier payments had also been made by the tenant. It is difficult to read any such stipulation in these documents. At any event, if relevant payments had also been made no reason has been assigned as to why connected documents evidencing all such payments have not been attached with the memo. Of appeal. This contention also, therefore, must fail.
6. ' Having found that failure in the payment of relevant taxes and charges was duly established on admission before the learned Controller and the order of eviction could plausibly be grounded on the score of default, it would now arise to consider the second limb of the argument of Mr. Saleem lqbal pertaining to the adjustment of the security deposit in this case. Learned counsel has taken me to clause 3 of the agreement between the parties, which clause shows that a sum of Rs,6,000 in cash was lying deposited with the respondent-landlady by way of security deposit refundable, in terms of paragraph 13 of the agreement at the time when the tenant vacated the premises, after adjusting the arrears of rents together the costs of damages, if any, sustained by the premises during the subsistence of the tenancy. Learned counsel claims that such amount would be enough to counter-balance the default in payment of dues as aforesaid because according to him in so far as the charges for services, such as electricity and telephone are concerned, there has been no default on the part of the tenant. Mr. Syed Nasiruddin, in response, has referred me to the Supreme Court dicta in the case of Zarina Khawaja v. Mehboob Shah PLD 1988 SC 190 whereunder the terms and stipulations in a tenancy agreement, even after the eflux of the period of tenancy, can be applied and adhered to provided that the same do not retract from what has expressly been mandated or prohibited by the applicable Rent Law. Learned counsel has also relied upon the latest view of the Supreme Court on the subject in Sayeeda Khatoon v. Muhammad Ahmad Latifi PLD 1990 SC 389 in which case also the same question was considered but approached from a different angle. In re; Sayeeda Khatoon, it was said by Namiuddin, J. Who spoke for the Court, that where there was a specific prohibition in an agreement of tenancy, which prohibition did not contravene any of the postulates of the Rent Law such, even after the expiry of the agreement, would beenforceable between the parties. The contention of Mr. S. Nasiruddin involves that the specific provision in clause 13 of the tenancy agreement between the parties, expressly mandating that the amount of Rs,6,000 in the way of fixed deposit shall be adjustable at the time of vacating of the premises, implies that such adjustment cannot be made while the premises remain in the possession of the tenant. Thus urged this amount could not come up for adjustment in the context of the default on the part of the appellant-tenant. It is not easy to read a. Prohibition as implicit, more so because the tenancy already stands expired under the agreement and continues only because of a statutory artifice. This, in any case, does not directly arise on the ratio In re: Sayeeda Khatoon. It also may not be appropriate to draw on the inferences made, because in the earlier decision of the Supreme Court in Muhammad Yousuf v. Abdullah PLD 1989 SC 298 Dorab Patel, A.C.J. Allowed adjustments in almost similar circumstances. Muhammad Yousars case, it may bear mention, was approved In re: Zarina Khawaja ibid. The matter can, however, be more simply approached. It is for the first time in this Court that adjustment of the security deposit is claimed. In order to make adjustments it would be necessary to determine the dues in which exercise under section 21 of the Sindh Rented Premises Ordinance, 1979, the Court has a discretion not to go into at the appellate level. Appellant here has submitted no adequate accounts of the dues and, on the contrary, claims that it is clear of all liability. The question of adjustment is, therefore, not at all free of factual disputes and not allowed to be raised because of the uncertain nature of the dues.
7. ' In view of the.Above, I do not find any merit in this appeal which is liable to be dismissed but there will be no order as to costs. Since the appellant-tenant is engaged in a commercial activity at the tenant-hold premises, I consider it appropriate to allow it a period of four months to vacate ,provided that it deposits the accruing monthly rents in this Court on or before the 10th of every succeeding month together with all arrears in the ensuing month itself (March, 1991) and also appropriately produces for the record of the Nazir of this Court all bills of payments of electricity and gas charges and other taxes as are its responsibility from month to month and keeps all such dues clear.
8. ' Subject to this, the above appeal is dismissed. On the expiry of the period of four months aforementioned or in the event of default before that the respondent-landlady would be free to excecute the order of eviction without any further notice to the appellant-tenant.