1. ' The appellant has assailed the order dated 31-10-1987 passed by the IInd Senior Civil Judge and Rent Controller, Karachi (West) in Rent Case No,4164 of 1985 (old No,1985 of 1980) filed by the respondent against the appellant on the ground of default in payment of rent for the months of January, February and March, 1980. The appellant took up the defence in his written statement that he has been paying rent regularly, but however, the respondent delayed the collection of rent with ulterior motive. It was denied that any default was committed in payment of rent. The respondent filed his affidavit-in-evidence, wherein it was again stated that the rent was not paid to him for the months of January to March, 1980. The appellant in his affidavit repeated the plea raised by him in his written statement and further stated that the rent for the months of January, 1980 was paid to the respondent, but he did not issue the receipt therefor. And, therefore, he started sending the rent through money order. He produced 5 money orders. First one being for February, March and April 1980, is dated 2-5-1980.
2. ' The learned counsel for the appellant has contended that the agreement of tenancy having expired, the appellant has become statutory tenant. He further contends that a fixed deposit of Rs,100 is lying with the respondent and if the said amount is adjusted towards the rent, there will be no default in terms of section 15 of the Sindh Rented Premises Ordinance, 1979, rent being Rs,60 per month. According to him, on expiry of the tenancy agreement, the amount has become refundable to the appellant. For such proposition, he has placed reliance on the case of Ghulam Muhammad and another v. Haji Muhammad Jamil reported in 1982 CLC 1042 and Nisar Ahmad Khan v.
3. Muhammad Sharif, reported in 1986 CLC 866. The above contentions of the learned counsel are without any substance. It is by now settled proposition that after expiry of the period specified in the agreement of tenancy, the terms and conditions A incorporated therein shall continue to remain operative except such of them that have been varied by consent of the parties. It is also settled law that the amount of fixed deposit lying with the landlord is not adjustable towards the rent and the landlord is entitled to retain such amount until the time the tenant has vacated the premises for the purpose of recovery of any dues found against the tenant or for adjustment towards the damages, if any, caused to the property. This is a clear case of admitted default, wherein the only defence taken by the appellant is that the respondent did not come to collect the rent. It was the responsibility of the appellant to seek the respondent and to pay him the rent. The appellant has taken altogether an inconsistent plea in his affidavit-in-evidence by stating that the rent for the month of January, 1980 was paid by him, but the receipt was not issued therefor. Such evidence, being beyond the pleadings in the written statement, cannot be even looked into. The money orders, that have been produced by the appellant, all were despatched after commission of default and institution of the rent case. First of the such money orders was sent on 2nd of May, 1980, when the case was pending in Court. In any case, the payment by such delayed money orders does not save the appellant from the consequences of the default already committed by him. Consequently, the appeal is dismissed. By consent, the appellant is given four months' time to vacate the premises from the date of this order and hand over the possession to the respondent subject to deposit of rent in terms of the order passed by the Rent Controller. In case the appellant fails to hand over the possession within the aforesaid period, the Rent Controller will directly issue writ of possession without any notice to the appellant, on filing of the execution application by the respondent.