' This is an appeal against the judgment of III Senior Civil Judge and Rent Controller, Karachi (Central) dated 31st January, 1993 allowing the ejectment application of respondent.
2. On 12-4-1988 respondent filed ejectment application stating therein that she is landlady of premises D-15, Al-Azam Square, F.B. Area, Karachi. Appellant who is her tenant committed default for months of January, February and March, 1988 and the rent is due for four months (including month of April, 1988) amounting to Rs,2,400.
3. Appellant in her written statement took plea that security deposit amounting to Rs,8,000 was already lying with the landlord who could have adjusted the same towards the rent. Moreover, he sent rent through money order for the month of April, which was refused by her.
4. Mr. Akram, Attorney of the respondent was examined who stated in his cross-examination that he is well conversant with the signatures of the respondent/landlady. He was shown two Katcha receipts Exhs. A-3 and A-4. He admitted signature of the respondent on ExhA-3 but denied the same on ExhA-4. He also admitted that receipt A-3 is in respect of rent for the month of February, 1988. According to his evidence rent was to be paid in advance on 5th of every month. He also admitted that appellant had deposited Rs,8,000 as security deposit at the time of taking the premises on rent.
4-A. Mst. Safia Begum, wife and general attorney of the appellant was examined. She deposed that there is no default in payment of rent. Advance rent for the month of April, 1988 was also sent by money order on 4-4-1988 but the same was refused. She filed photo copy of money order in the name of the respondent and also photo copies of rent receipts deposited in Court after an order under section 16(1) of the Sindh Rented Premised Ordinance, 1979 was passed.
5. The learned Rent Controller set the following points for determination:--
(1) Whether the opponent has committed defualt in payment of monthly rent?
(2) What should the order be?
6. His findings on point No,1 was in affirmative and appellant was ordered to vacate the demised premises within sixty days of passing of the orders.
7. Heard the learned counsel and perused the record. There is a clear admission on the part of the attorney of the respondent that the rent receipt in, respect of month of February, 1988 was signed by the respondent. If rent for the month of February, 1988 is paid and accepted by the respondent presumption will be the rent of January, 1988 must have also been paid, otherwise, respondent will not accept the rent for February, 1988 and issue such receipt. As regards rent for March, 1988 it will be due on or before 10th April, 1988 and for the April, 1988 on or before 10th May, 1988, if there is no tenancy agreement. Even if the contention of the respondent is to be believed that the advance rent was to be paid on 5th of every month, then, the rent for the month of March was due on 5th March and that of April on 5th April. Section 15(ii) of the Ordinance provides as under:- "15(ii). The tenant has failed to pay rent in respect of the premises in his possession within fifteen days after the expiry of the period fixed by mutual agreement between the tenant and landlord for payment of the ' rent, or in the absence of such agreement, within sixty days after the rent has become due for payment."
8. Under the provision of this Act the respondent has no cause of action to file ejectment application on 12th April, 1988. The respondent could have cause of action if any on 20th May, 1988 in case the rent was fixed by mutual agreement between the parties and in absence of agreement on first July, 1988. This clearly indicates that at the time of filing of ejectment application the respondent had no cause of action.
9. The learned advocate for respondent argued that the appellant has deposited rent for the first time on 10-11-1988 after order on an application under section 16(i) of Sindh Rented Premises Ordinance was passed. Thus he is in default up to October, 1988 because default during pendency of the ejectment application can also be considered. The learned advocate for the respondent argued that first Court has to see if at the time of filing of the ejectment application, the respondent had any cause of action if not then default during pendency of the ejectment application cannot be considered. Even otherwise the appellant has paid security deposit of Rs,8,000 to the respondent which could be adjusted towards arrears of rent if any. In this regard he has placed reliance on cases Mustafa Hussain Siddiqui v. Malik Islam Akbar 1984 CLC 2869. Allah Bux v. Mst.
Sarwari Begum 1987 CLC 1714 on the point that security deposit can be adjusted towards the arrears of rent if any.
10. It has been held in Mustafa Hussain Siddiqui v. Malik Islam Akbar 1984 CLC 2869 that in absence of period of tenancy agreement, it could not be taken for one year or more, and at the best, it could be treated as an agreement for a period of less than one year. Advance rent in that case can be adjusted towards the arrears of rent and ejectment cannot be ordered for default in payment of rent for the amount which is less than the security deposit lying with the landlady. Same has been held in Allah Bux v. Sarwari Begum 1987 CLC 1714 that after expiry of tenancy agreement relations between parties being governed purely by statute. Amount of security deposit which was not refunded to the tenant could have been adjusted towards amount of default when statutory tenancy started after expiry of such agreement.
11. Notice of the respondent to the appellant for increase of rent indicates that premises was rented out to the appellant in the year 1981 but no agreement of rent has been produced by either of the parties and also no period for the agreement has been disclosed by either of the parties in such circumstances the agreement for rent will be deemed for period of less 'than one year and after expiry of agreement the appellaht has become statutory tenant. Deposit of security amount is admitted by the respondent's attorney. He has not disclosed as to how and when this security deposit was to be refunded to the appellant. In absence of all these the security deposit could have also been adjusted towards arrears of rent. On 10-11-1988 rent at Rs,600 p.m. Was deposited by the appellant after order on application under section 16(1) of Sindh Rented Premises Ordinance, 1979 was passed by the Rent Controller. His first deposit being Rs,600 on 10-11-1988. The respondent moved another application uhder section 16(2) of Sindh Rented Premises Ordinance,- 1979 alleging therein that appellant has not complied with the order passed on application under section 16(1) of the Ordinance, but on getting report from the Nazir of the Court that the amount is being deposited @ Rs,600 per month from 10-11-1988 he did not press the application which was dismissed as not pressed. This also indicates that though rent was not paid for months earlier to October, 1988 but the respondent in view of the security deposit held by him as not pressed that application under section 16(2) of the Ordinance.
12. Learned counsel for the respondents relied on case of Waqf Muhammad Mehar Elahi v. Abdul Ghani Haji Suleman in which it has been held that default in payment of rent was thus established on record, and tenant was liable to eviction from demised premises." The case-law cited by the learned counsel is not relevant as in the present case default has not been proved against the appellant/tenant.
13. Accordingly appeal is allowed with no order as to costs and order of the learned Rent Controller is set aside.
' These are reasons for my short order already announced on 20-4-1995.