This appeal, under section 24 of the Cantonments Rent Restriction Act, 1963, is directed against the order dated 24-11-1992, passed by learned Additional Controller of Rent Clifton Cantonment, whereby the appellant was directed to hand over vacant possession of the premises in question to the respondent within 45 days from the date of said order. The facts relevant for decision of this appeal are as follows.
2. Respondent Rab Nawaz on 16-11-1991 had filed the eviction application against appellant Muhammad Ibrahim for his eviction from the Shop No.5, Plot No.DC-3, Kulsoom Court, Block 10 Clifton, Karachi, hereinafter referred to as the premises, on the grounds of default in payment of rent, impairing the value utility, of the premises by making addition and alteration in it, and personal bona fide use. The case of the respondent is that the appellant is his tenant in the premises at monthly rent of Rs.4,250 and did not pay rent for the months of September, October and November, 1991. It is alleged that in contravention of the terms of the agreement, the appellant is running a hotel in the premises and has constructed a "Tandoor", which has caused damage to the premises. The respondent has claimed that, though the appellant had agreed to demolish said Tandoor and to repair the damages so caused by its construction, but he did not keep his words and continued with his hotel business. On the point of personal bona fide use, the case of the respondent is that he is a heart patient and the doctor has advised him not to carry on hard mechanical work, which he had been doing as a mechanic in the past.
3. The appellant in written statement denied the case of the respondent. According to him, he had paid rent for the month of September 1991, but rent receipt was not issued to him. He claimed that the rent for the months of October and November, 1991 was sent through money order to the respondent, but the latter declined to accept it. He denied to have caused any damage to the premises. He also stated that respondent is already doing his own business as a mechanic and being the owner of a workshop does not require the premises for his personal use.
4. Respondent Rab Nawaz filed his affidavit-in-evidence and that of his witness Suleman. Both were cross-examined. Appellant filed his own affidavit and was cross-examined.
5. The respondent in his affidavit-in-evidence reiterated that the rent for the months of September, October and November,' 1991, in spite of repeated demands, was not paid to him. He also stated that he is suffering from heart disease and backache. According to him, he is a mechanic and was running his workshop at P.I.B. Colony, Karachi, and in view of his ailment, was not in a position to continue the said business. He now wants to start a business in the premises requiring less physical exertion. Respondent's witness Suleman in his affidavit-in-evidence stated that the respondent is a heart patient.
6. The appellant in his affidavit-in-evidence repeated the same pleas, which he has raised in the Written Statement. According to learned counsel for the appellant, the application for depositing rent in Court was filed on 4-1-1992, order on it was passed on 25-1-1992, and the rent was deposited in Court on 4-2-1992.
7. From the pleadings of the parties, the learned Rent Controller had settled the following issues:
(1) Whether the opponent has carried out addition and alteration in the demised premises?
(2) Whether the opponent has committed default in payment of rent?
(3) Whether the applicant requires the demised premises for his personal bona fide need?
(4) What should the order be?
8. On assessm ent of the evidence learned Controller decided Issue No.1 in favour of the appellant and Issues Nos.2 and 3 in favour of the respondent. Consequently, he allowed the eviction application by order, which has been impugned in this appeal. In this appeal only the points of default in payment of rent and personal bona fide use are to be considered. The respondent has not challenged the findings recorded on Issue No. 1.
9. Mr. M.M. Aqil Awan, learned counsel for the appellant first attempted to argue that no default in payment of rent was committed by the appellant, but when he was asked to explain that what was the evidence to substantiate this plea, he conceded that the appellant had committed default in payment of rent for the months of September and October, 1991. He, however, contended that said default was not wilful and at the most could be termed as 'technical default'. Elaborating it, he submitted that the appellant had deposited with the respondent an amount of Rs.24,000 as security deposit and the rent of the abovementioned two months could be adjusted from the said amount. Clause 3 of the tenancy agreement dated 17-6-1991 between the parties is as follows:--- "3. That the tenant has deposited with the landlord a sum of Rs.24,000 (Rupees Twenty-four Thousand only) which will remain with the landlord as Security Deposit and shall be refundable at the time of vacating and handing over the possession of the said shop after deducting dues, and charges if any, found at that time. This amount of security deposit shall not bear any interest or profit etc."
10. The evidence on record indicates that the default was wilful. In the written statement and affidavit-in-evidence the appellant stated that the rent for the month of September, 1991 was paid to the respondent, but in cross---examination, he stated that, in fact, it was paid to the son of the respondent. He, however, admitted that he has not mentioned in the written statement and affidavit-in-evidence that the rent was paid to the son of the respondent. The evidence of the appellant on this point is inconsistent and also contradictory. Admittedly, usual practice between the parties was that the appellant used to himself draw the receipt and it was signed by the respondent when the payment was made. Had the appellant paid rent for the month of September, 1991, he would have been in possession of the rent receipt. The appellant attempted to justify that he had paid rent for the month of September, 1991, although he had not done so. The default was wilful. The appellant also alleged that the rent of October and November, 1991 was sent to the respondent by money order. This again is not proved. On record there is only a photo copy of postal receipt No.3150, showing the amount of Rs.4,250. Date on this receipt is not clear. From this receipt if is not established that the rent for the months of October and November, 1991, was actually sent to the respondent by money order. Also, it is not proved that said money order was refused by the respondent. In fact, there is nothing on record to show that the money order, as is being claimed now, was sent to the respondent. The default for the months of October and November1991. Is also proved and it was also a wilful default.
11. Mr. Awan, however, laid much stress on the point that the amount of security could be adjusted towards the rent. In this connection, be has relied upon the case of M/s. Adam Ltd., Karachi v. M/s. General Rubber Trading Co., Karachi (1984 CLC 794). In this case, tenant had paid three months Rent as security deposit and he committed default which was of less than three months. It was held that amount deposited as security deposit could be adjusted towards rent. This point was also examined by the Hon'ble Supreme Court in the case of Mst. Saeeda Khatoon v. Muhammad Ahmad Lateefi PLD 1990 SC 389 and at page 393 the following was observed:--- "In the case in hand the term under which the security deposit was made specifically states that if cannot be adjusted against the future rent and it could be returned only after the premises is vacated in good condition. Therefore, the High Court was not right when it held that the amount of security could be adjusted against the rent due during the occupation of the premises by the tenant or before surrender of vacant possession of the premises as it would amount to changing the terms of agreement on which the premises is held by the tenant."
12. Coming back to the facts of the instant case, it is noted that the amount of Rs.24,000 which was deposited as security, was to be refunded to the appellant at the time of handing over the possession of the premises after deducting the dues and charges if any. It is evident that the amount of security deposit was not to be adjusted towards rent. It being so, the appellant, now cannot ask for adjustment from said amount towards the rent. This would simply amount to change the terms of the agreement. Relying upon the dictum laid down by the Supreme Court, I hold that the security amount could not be adjusted towards the payment of rent for which the default was committed.
13. Mr. Awan learned counsel for the appellant also contended that, in view of subsection (4) of section 17 of the Cantonments Rent Restriction Act, 1963, the rent application before the Controller was not maintainable. The third proviso of subsection (4) of section 17 of the Act states that subsection (4), which deals with both residential and commercial buildings, would not apply in case of Sarai, hotel, dock bungalow, lodging houses, boarding house, residential clubs, restaurants, eating house, cafe, refreshment room and places of public recreation etc. Precisely stated the contention is that since the premises is being used as hotel, the eviction application was not maintainable. The tenancy agreement dyes not show that the premises was rented out to the appellant for running a hotel therein. There is nothing on record to indicate that hotel business was started in the premises with the consent of the respondent. Under these circumstances, the eviction application before the Rent Controller was maintainable.
14. The next ground is of personal bona fide use. The appellant, in his cross-examination, has admitted that the respondent is suffering from heart ailment and backache. Admittedly, the respondent is a motor mechanic, which requires hard physical work. The doctor, however, has advised him to do light work. Under these circumstances, the demand of the respondent to use the premises for running general store therein for himself is justified. Although the appellant stated that the respondent is the owner of the property, where he is carrying on his business, but nothing material has been brought on record to substantiate this plea. Accordingly, I hold that the respondent requires the premises for his personal bona fide use.
15. In consequence, I do not find any merit in this appeal and the same is dismissed with no order as to cost. Three months' time, however, is granted to the appellant for handing over vacant possession of the premises in question to the respondent.