' This is second appeal against order. The relevant facts are that the appellant let out shop No,4, Shahzadi Building, Alamgir Market, Lahore, to the respondent through rent agreement dated 22-3- 1988 available on the file as Exh.R19. The appellant filed ejectment petition and sought the ejectment of the respondent on the grounds of default, personal need, damage and subletting. The respondent controverted the grounds urged in the ejectment petition. The Rent Controller accordingly framed following issues:-- "(1) Whether the respondent has committed wilful default in the payment of the rent since March, 1988? OPA.
(2) Whether the respondent has sublet the shop in dispute? OPA.
(3) Whether the respondent has made unauthorized construction in the premises? OPA.
(4) Whether the respondent has failed to fulfil his contractual promise? OPA.
(5) Whether the petitioner requires the shop in dispute for her bona fide personal need? OPA.
(6) Whether the respondent has caused nuisance by unauthorized construction? OPA.
(7) Whether the petition is barred by the principle of res judicata? OPR.
(8) Whether the petition is not maintainable in view of the preliminary objections Nos.2, 3 and 4 of the written reply? OPR.
(9) Order."
2. The appellant examined Naveed Akhtar, her attorney as A.W.1, and Mian M. Ismail Munawar.
Advocate as A.W.2 while the respondent examined Sh. Abdul Sattar as R.W.1, Mubashar Azeem as R.W.2, Muhammad Habib as R.W.3 and himself appeared as R.W.4. The learned Rent Controller after hearing the arguments decided issues No,2 3, 4, 5 and 6 against the appellant while issues Nos. 7 and 8 were decided against the respondent and issue No,1 as to wilful default was decided in favour of the appellant and as a result thereof the ejectment petition was allowed vide order dated 18-11-1992 and the respondents were directed to hand over vacant possession of the shop to the appellant within one month. The respondent assailed this ejectment order through an appeal before the appellate authority, which accepted the same vide order dated 12-6-1994. The result was that the ejectment petition of the appellant was dismissed. She has now filed this second appeal, which was admitted to hearing and notice was issued to the respondent, who has appeared through Mr. Azmat Saeed, Advocate and contested the appeal.
3. The learned counsel for the appellant argued that the appellate authority wrongly, illegally and without justification reversed the finding recorded by the Rent Controller on issue No,1. It is added that the rate of rent of the premises was Rs,375 per month. It is submitted that the same rate was mentioned in para. 2 of the petition and admitted in the reply. Thereafter the learned counsel referred to order under section 13 (6) passed by the Rent Controller on 28-2-1990. Further the rent note Exh.R19, legal notice Exh.A2 and statement of the respondent recorded in the earlier ejectment petition and placed on the file of this case as Exh. R17 proves rate of rent. The next submission is that the amount of Rs, 30,000 was paid in pursuance of the agreement recorded by the learned Rent Controller in the earlier ejectment petition and the same was not paid to the appellant. In this behalf, reliance is again placed on statement of the respondent Exh.R17. It is added that there is no mention of this amount in Exh.R19. In the alternate it is argued that the amount paid to the landlord by a tenant for a specific purpose cannot be utilized for the adjustment of arrears of rent. In this behalf, the learned counsel has referred to Mst. Zubaidah Begum v. Mirza Mumtaz Hassan (PLD 1975 Lahore 1504), Mrs. Zarina Khawaja v. Agha Mahboob Shah (PLD 1988 SC 190), Mirza Abdul Aziz Beg v.
Mushtaq Ahmed Shiekh (1980 SCMR 834) and Dr. Razia Wahid v. Shah Din and 6 others (1981 CLC 662).
' On merits it is argued that the default in the payment of rent for the months of November and December, 1988 is clearly admitted and the appellate authority was fully conscious of this fact, therefore, proceeded to condone the same without any legal justification. It is added that the rent according to the agreement between the parties was payable in advance and according to the application under Order XII, C.P.C. As well as Exh. R1 receipt of rent for March and April, 1988 was paid on 13-3-1988 while another sum of Rs,2,400 was deposited through receipt Exh.R2 on 9-5-1988. It is explained that this would cover rent up to October, 1988 and yet another sum of Rs,1,800 was deposited on 26-1-1989. This covered rent from November, 1988 onward, therefore, the respondent was clearly defaulter. The learned counsel, in this behalf, has referred to Khadija Bhabha v. Province of Sindh (PLD 1973 Karachi 421), Allah Din v. Habib (PLD 1982 SC 465 ), Shahriyar All Patudi and 3 others v. Messrs Decora Furnishers (PLD 1985 Karachi 47) and Fatal Ahmed Khan Saleemi v. Mrs. Anwar Iqbal (1987 CLC 1638).
4. On the other hand, the learned counsel for the respondent argued that the rate of rent of shop was Rs, 300 and Rs, 75 was the rent for the basement which admittedly has not come into existence so far, therefore, rent in respect of the same would not be covered by the term rent due and respondent could not be considered defaulter if the same was not paid. It is added that the A.W.1 has admitted in cross-examination that amount of Rs, 30,000 was received by the appellant.
This amount being not covered by provisions of section 7 of the Rent Restriction Ordinance, therefore, the appellant was not entitled to receive the same and arrears of rent were adjustable against this amount and the respondent was not a defaulter at all. In this behalf the learned counsel has relied on Shezan Limited v. Abdul Ghaffar and others (1992 SCMR 2400). It is argued that the appellate authority concluded that the appellant could not be considered as a defaulter and this finding has not been challenged in the present appeal.
5. The learned counsel for the appellant while summing up the arguments submitted that the appellant has sent a cheque in the sum of Rs,30,000 to the respondent under registered cover, therefore, there is no question of any adjustment from the said amount. It is added that the appellant has clearly challenged the findings recorded by the appellate authority on issue No,1 and that includes all Courts.
6. I have given my anxious consideration to the arguments of the learned counsel for the parties and gone through the record as well as precedent cases. The basic point for determination is that what was the rent of the shop? The rate of rent is mentioned as Rs,375 per month in the rent agreement Exh.R19 but the objection of the learned counsel for the respondent is that this included rent for basement. In order to better appreciate the respective arguments of the learned counsel for the parties it is relevant to refer to earlier ejectment petition which ended in a compromise between the parties and that ejectment petition, was filed by Master Suleman Durrani and Miss Humera Durrani son and daughter of the present appellant. The statement of the respondent as well as counsel for the landlords were recorded by Mr. Mahmood Maqbul Bajwa, the then learned Rent Controller, on 22-3-1988 in that case and the same are available as Exh.R17 on the present record. The statement of the respondent reads as under:--
7. {{URDU TEXT}} While the statement of counsel for the respondent as under:- {{URDU TEXT}} Thereafter the learned Rent Controller proceeded to pass the following order: "The statement of respondent has been recorded to the effect that rate of rent is Rs,300 p.m. And rent has been increased to the tune of 25% w,e,f, 1-3-1988 and now the monthly rent is Rs,375 per month w,e,f, 1-3-1988. He further undertook to pay Rs,30,000 to the petitioners for construction of basement which shall be raised by his own expenses. The respondent further stated that the total rent of the shop and basement will be Rs,375 p.m. The statement of the learned counsel for the petitioners have been recorded who in his statement admitted the statement of the respondent.
He further added that respondent has been permitted to construct the basement at his own expenses and the monthly rent of shop and basement will be Rs,375 p.m. He further stated that ejectment petition be dismissed in view of compromise. In view of the matter the ejectment petition . Is hereby dismissed in view of compromise referred above. The parties are left to bear their own costs. File be consigned to the record room after its completion."
' It is clear from the statement of the respondent that he agreed to enhance the rent to the extent of 25% and in future to pay at the rate of Rs,375. He also undertook to pay a sum of Rs,30,000 for permission of the landlord to construct the basement while expenses of the construction were to be brone by himself. In this view of the matter, rate of rent in agreement Exh.R19 was mentioned as Rs,375 per month. I am conscious of the fact that in this agreement it was incorporated that the possession of shop and basement has been taken over by the tenant-respondent. The overall picture which emerges from these documents is that respondent was to pay rent with effect from 1-3-1988 at the rate of Rs,375 per month. He was allowed to make the provision for basement at his own expense and the rate of rent was to include the rent 'for the basement, also. In other words for the time being in stricto senso the respondent was not liable to pay any rent, whatsoever, for the basement, as is clear from the last line of his statement. This seems to be for the reason that he had paid a sum of Rs,30,000 for permission and was also to incur the expenses on the construction of the basement, therefore, it follows that the rate of rent was Rs,375. Otherwise there was no difficulty in making a provision that till the basement is constructed rent would be Rs,300 per month. Moreover, the statement Exh. R17 makes the things clear that the rent was enhanced to the extent of 25%, therefore, argument that Rs,75 was to be paid for the basement is incorrect and against law and facts on record.
7. The appellant clearly claimed rent at the rate of Rs,375 per month in para. 2 of the ejectment petition, which reads as under:-- "2. That, the respondent No,1 is the tenant in shop No,4 of the said market, at a monthly rent of Rs,375, vide Rent Deed dated 22-3-1988.
Copy of the rent deed is attached with this application "
The same was admitted without any reservation in the written reply and para. 2 reads as under:- {{URDU TEXT}} Accordingly, the Rent Controller passed order under section 13(6) directing the respondent to clear the arrears, if any, and to pay future monthly rent at the rate of Rs,375 per month. In view of this, I hold that the rate of the shop was Rs,375.
8. Now coming to the default. It is clear from the orders of both the Courts below that the respondent has failed to pay or tender rent for the months of November and December 1988. He deposited a sum of Rs,600 through Exh.R1 dated 13-3-1988 and another sum of Rs,2,400 vide receipt Exh.R2 dated 9-5-1988 and the next de-posit of Rs,1,800 was made by him through receipt Exh.R3 on 26-1-1989, therefore, not relevant to present controversy. According to the agreement the rent was payable from Ist of March, 1988 at the rate of Rs,375 in advance. This way the respondent was to pay or tender a sum of Rs,3,750 up to 31-12-1988. But he, as admitted in application under Order XII, C.P.C. As well as by production of receipts Exh.R1 and R2. Tendered a sum of Rs,3,000 only. This would cover rent from 1st of March, 1988 to October 1988. It is also clearly incorporated in the rent agreement that the rent was to be paid in advance but no date was specified for c the payment of rent, therefore, the rent could be paid for the month of November 1988 till 30th November, 1988, therefore, in terms of section 13(2)(i) of the Rent Restriction Ordinance, if paid or tendered within 15 days from the date it becomes due then it is valid payment and does not mature into default. This way the rent for November 1988 could be paid up to 15th December, 1988 while rent for December 1988 could be paid by 15th Janaury 1987 but payment was not made accordingly, therefore, the respondent was clearly a defaulter.
9. Now coming to the point whether it is a wilful default or could be ignored as adjudged by the appellate authority. It is clear from the receipts Exh.R1 and R2 that rent was paid in advance as the rent for March and April 1988 was paid on 13-3-1988 while rent for May onward was paid on 9-5- 1988 C but thereafter the respondent did not pay or tender rent for November and December, 1988 in accordance with agreement. This is not all. The respondent in order to justify and cover the default took up a wrong plea that the rate of premises is Rs,300 and not Rs,375, therefore, he is not entitled to any indulgence.
10. Now coming to the last point that whether the rent for these two months could be adjusted from the sum of Rs,30,000. I am of the clear view that it is not possible for the simple reason that the amount was paid in the account of Master Suleman Durrani and Miss Humera Durrani and not to the appellant. The same is also to be excluded from consideration because no mention of it has been made in the rent agreement between the parties. The amount was advanced by respondent for a specific purpose to secure permission for construction of basement. The same was not available to be adjusted against arrears of rent. That too payable to the third person. However, since A.W.1 has admitted its receipt by the appellant and also taken up the position that a cheque for the amount has already been sent to the respondent under registered cover therefore, the appellant is directed to refund this amount to the respondent.
11. The upshot of the above discussion is that the impugned order of the appellate authority dated 12-6-1994 is set aside by accepting this appeal with costs. The result is that the findings of the learned Rent Controller are maintained. However, the respondent is allowed time up to 30th September, 1995 to hand over the vacant possession of the premises to the appellant The order would be executable only after the appellant has refunded or deposited in the Court or Rent Controller a sum of Rs,30,000.