' By this appeal the landlord/appellant Ismail Adamjee has challenged the order of the Rent Controller dated 22-2-1992 dismissing his application for ejectment filed by him under section 15 of the Sindh Rented Premises Ordinance, 1979.
2. The facts of the case are that the appellant is the owner of ground floor of bungalow No,9, situated at Jinnah Cooperative Housing Society, Blocks 7 & 8, Off Main Drigh Road, Karachi, which was rented out to the respondent/tenant by an agreement of tenancy on 1-3-1980. This agreement was attested by a Rent Controller as provided by section 6 of the Sindh Rented Premises Ordinance, 1979. The rate of rent initially was Rs,3,000 per month and the duration of the tenancy agreement was up to the month of December, 1980. In the month of December, 1980, the appellant/landlord issued a notice to the respondent/tenant asking her to vacate the premises on the ground of the expiry of the agreement. However, the tenant failed to vacate the premises. The rate of rent was thereafter increased to Rs,3,300 per month which the tenant continued to pay.
After paying the rent for the month of April, 1983, the tenant failed to pay the rent for the months of May, June, July and August, 1983. A sum of Rs,13,200 thus accumulated as the arrears of the rent.
The appellant filed the application under section 15 of the Sindh Rented Premises Ordinance on 7- 8-1983 in the Court of Senior Civil Judge & Rent Controller, praying for ejectment of the respondent on the ground of default in payment of the rent. The respondent contested the ejectment application and in her written statement she pleaded that after the expiry of the agreement of the tenancy she was not liable to pay the monthly rent before the 7th day of each month in advance, which was the condition of the tenancy agreement. She claimed that after the expiry of the agreement this condition of the tenancy did not apply.
3. In respect of the default in payment of the monthly rent she pleaded that the rent for the months of May, June and July was paid to the landlord in the first week of each month for which the landlord did not issue any receipt as usual. However, when the rent for the month of August, 1983 was offered by the tenant, the landlord asked for an enhancement in the existing rental from Rs,3,300 to Rs,4,000. The tenant did not agree and the landlord refused to receive the rent for the month of August, Thereafter the tenant deposited the rent in Miscellaneous Rent Case No, 4044/83 in the Court of Rent Controller No,3, Karachi. It was also pleaded by the tenant that with prior consent of the landlord she had carried out certain works in the premises in dispute and spent on them from her own pocket. It was stated in the written-statement by the tenant that the landlord had agreed to adjustment of such amount spent by the tenant but he did not do so.
4. It was also claimed by the tenant that a sum of Rs,18,000 as security deposit was received by the landlord at the time of tenancy and that therefore, the tenant had not committed any default as the arrears, if any, could be adjusted from security deposit. The landlord Ismail Adamjee filed his affidavit-in-evidence on which he was cross-examined while from the side of the tenant, her son Khalid Dawood and witness Akmal Sohail filed their affidavits on which they were cross-examined.
The learned Rent Controller after considering the evidence of the parties came to the conclusion that the default was not proved, as he did not believe the evidence of the applicant in that respect and that since an amount of Rs,18,000 as security deposit was lying with the landlord and the default was being alleged in respect of Rs,13,200 only the amount of security deposit could be adjusted towards the arrears of rent. The application for ejectment was dismissed by the Rent Controller.
5. Learned counsel appearing for the appellant has argued that the tenant had not taken the specific plea about the adjustment of such deposit towards the payment of arrears of the rent but on the contrary had pleaded that he had paid the rent for which receipt was not issued to him, therefore, according to the learned counsel for the appellant the plea that the arrears could have been adjusted from the security deposit, was not available to the tenant. He stated that the case of Muhammad Ally Ahmad v. Shaikh A. Hameed reported in 1987 CLC. 492 supported the case of the landlord as in this case it had been held that when specific plea about the adjustment was not taken in the written-statement, such arrears of rent could not be adjusted from the amount of security deposit. Besides, in the agreement of tenancy between the parties in this case, it is specifically mentioned that the amount of the security deposit is returnable on expiry of the tenancy, which means that when the premises is vacated by the tenant. Therefore, contention of the learned counsel for the appellant is that it is not open to the tenant to get adjustment of the arrears, from the security deposit. Besides, the learned counsel also relied upon the case of Allah Din v. Habib (PLD 1982 SC 465), in which it was held that although the initial burden of proof lies upon the landlord to establish that the tenant had not paid or tendered the rent due, but non- payment of the rent was a negative fact and, therefore, if the landlord appeared. In the Court and stated on oath that he had not received the "rent for a specific period, it was sufficient to discharge the burden and thereafter onus shifted to the tenant to prove affirmatively that he had paid or tendered the rent for the period in question. In this case the appellant has proved that earlier on all occasions he had been issuing the receipts of the payment and mere word on the part of the tenant that the receipts were not issued to him for the crutial period of default viz. The months of May to August, 1983 cannot be believed. Counterfoils of three preceding months' have been produced in evidence by the landlord to prove this fact, and he also stated on oath that the tenant had not paid him the rent. The onus therefore had shifted on the tenant to prove the payment, which he failed. Besides, the tenant did not prove by way of producing some concrete evidence to show that he had actually made payment for these months. One other important aspect was that the tenant had deposited the rent for these 4 months subsequently with the Rent Controller. If he had actually paid the rent, he would not have ordinarily deposited the rent for the same period in absence of any substantial explanation. Merely saying that it was out of caution, that he deposited rent even for the period of alleged default, cannot be believed in this case. Learned counsel for the respondent, who was unable to argue the case in presence of the counsel for the appellant on many hearings was finally given permission to submit his arguments in writing. In his written arguments learned counsel for the respondent mainly contended that since the appellant after expiry of the term of the tenancy agreement had not served the tenant with any notice, the terms of the agreement had come to an end the appellant cannot be allowed to take benefit of any terms of the agreement of tenancy. Therefore, the claim that the security deposit amount could not be adjusted towards the arrears of the rent is not correct and that on the face of the amount of security deposit, which was admittedly more than the amount of rent claimed to be arrears, the tenant could not be said to have committed the default. The argument of the learned counsel for the respondent does not look to be correct in view of the principle laid down in the case of Zarina Khawaja v. Agha Mehboob Shah, reported in PLD 1988 SC 190, in which the principle has been laid down that if terms of the tenancy are not contrary to the rent laws, the determination and payment of rent as also the eviction, shall be governed by the covenants contained in the agreement.
6. As regards the contention that the arrears could safely be adjusted against the security deposit amount, the principle laid down in the case of Syed Asghar Ali v. Muhammad Ali, reported in PLD 1988 SC 228 is the guideline. It has been held in this case that the security deposit could not be adjusted against the-current liability to pay the rent when it can be spelt out from the contents of the agreement that the covenant to this effect was that the amount of security deposit was payable at the end of tenancy when the possession was to be vacated and that the payment of rent in advance had been specified under the terms of the agreement. The nature of the security deposit does not undergo a change on the expiry of the agreement. Therefore, the finding of the learned Rent Controller cannot be sustained that arrears if any could have been adjusted from the amount of the security deposit. It is also worthwhile to reproduce the covenants In the agreement with regard to the security deposit. Paragraph 3 of the agreement discloses:-- "3. That the tenant has deposited a sum of Rs, 18,000 (Rupees eighteen thousand only) as security deposit with the landlord which will be refundable on vacant peaceful possession of the demised premises to the landlord by the tenant."
' This specific term in the agreement leaves no room towards allowing adjustment of the arrears of the rent from the amount of security deposit, before getting the vacant possession. The reason for this security deposit has also been specifically spelt out from the other covenants of this agreement of tenancy which are the paragraphs 4 to 10 of the agreement, under which the tenant is bound to keep and maintain the premises in good and tenantable condition by taking care of the doors, windows, glasses, locks, catches, fastners, electric installations and other appurtenant.
He is also restrained by these terms not to use the premises for storing combustible or hazardous articles inside the premises and shall not open the premises to the risk of fire etc. Thus looking to these covenants of the agreement the principle laid down in the above two cited cases viz. Zarina Khawaja v. Agha Mehboob Shah and Syed Asghar Ali Imam v. Muhammad Ali are attracted. I have already held that the tenant has failed to prove from tengible evidence that he had paid the rent for the crucial months of the default. Under these circumstances, the impugned order of the Rent Controller is not sustainable. The result is that the appeal is allowed, the impugned order is set aside, the application of the appellant/landlord for ejectment is allowed and the respondent/tenant is directed to vacate the premises in dispute and hand over the possession therefore to the landlord within a period of 3 months from the date of this order.