1. This is an appeal under section 21 of Sindh Rented Premises Ordinance 1979 (hereinafter called the Rent Ordinance) directed against the order dated 4-12-1997 passed by II-Senior Civil Judge and Rent Controller, Karachi-South, in Rent Case No,345/93 (Sarfaraz Kenneth v, Abdul Malik whereby eviction application under section 15 of Rent Ordinance filed by respondent was allowed on the ground of default in payment of rent, hence this appeal.
2. ' Brief facts of the case are that the respondent/landlord filed eviction application under section 15 of Rent Ordinance against the appellant/tenant on the ground that the premises in question was required by the respondent for his personal use in good faith and that the appellant/tenant has defaulted in payment of rent from October 1992 to March 1993. The appellant/tenant filed written- statement wherein he denied the contents of the eviction application and with regard to default in payment of rent he stated that rent was paid by him till March 1993 for which no rent receipt was issued by the respondent. No plea with regard to security deposit was raised/stated, nor for its adjustment was claimed in the written-statment. The Rent Controller after recording the evidence held that default in the payment of rent from October 1992 till March 1993 has been committed by the appellant/tenant hence the appellant was ordered to vacate the premises.
3. ' I have heard learned counsel for the parties and perused the record and proceedings of the case.
4. ' Contention of the learned counsel for the appellant is that the appellant is in occupation of two shops when Shop No,1 was let out to him on 27-5-1997 through a written agreement for eleven months wherein an amount of Rs,30,000 was given to the respondent as security deposit and shop No,2 was rented out later, but there was no written agreement in respect of same and an amount of Rs,10,000 was given to the respondent towards the security deposit which fact is said to have been admitted by the respondent in the cross-examination. In the said circumstances, learned counsel for the appellant contended that amount of arrears of rent for the period from October 1992 till March 1993 could have been adjusted from the security deposit and if that would have been done the finding would have been that there was no default in the payment of rent, consequently, no eviction could have been ordered. In support of his contention, learned counsel for the appellant has placed reliance upon (I) Muhammad Afzal v. Rent Controller Faisalabad etc. 1989 MLD 2056; (ii) Muhammad Amin v, Mat, Nasim Begum 1984 CLC 1745, (iii) Muhammad Yousuf v. Abdullah (PLD 1980 S.C. 298), (iv) M.K. Muhammad and another v. Muhammad Abu Baker (1993 SCMR 200), (v) Abdul Hakim v. Atiya Sultana (PLD 1995 Karachi 370) and (vi) Waddhawawan Silk Industries v. Hawa Bai and 6 others (1986 CLC 2524) in support of his contention.
5. ' Learned counsel for the respondent has admitted that the appellant has made security deposit of Rs,30,000 in respect of Shop No,1 and an amount of Rs,10,000 as security deposit in respect of Shop No,2 but contended that the said amount of security amount could not be adjusted towards the arrears of rent as the said amount was to be adjusted at the time when the shop was to be vacated by the appellant/tenant. He has referred to an agreement made between the parties in respect of Shop No,1 only, wherein as per para 2, the fixed deposit was to be refunded to the lessee, as and when he would hand over physical possession to the lessor and damages, if any, done by the lessee, said amount to the extent of damages will have to be deducted from the fixed deposit.
6. He further submitted that so far as another Shop No,2 terms of first agreement would be made applicable but in case same are not applied for then provisions of Rent Ordinance would come into play, where under nowhere it has been said, that amount of security deposit would be adjusted towards the rent and there was neither oral agreement between the parties for adjustment of said security deposit nor any such question was suggested in the cross-examination to the respondent by the learned counsel for the appellant. He has placed reliance upon Nom Ahmad v. Mrs. Ohazala Iqbal 1996 MLD 1717, (ii) Ismail Adamjee v. Mat. Bilquis Iqbal (1996 CLC 619), (iii) Muhammad Ally Ahmad v. Shaikh Abdul Hameed (1987 CLC 493), (iv) Met. Saeeda Khatoon v. Muhammad Ahmad Latifi (PLD 1990 SC 389) and (v) Karamat Hussain v. Kazi All Muhammad (1986 SCMR 441) in support of his contention.
7. ' I have gone through the evidence of the parties and the case-law cited by the respective learned counsel for the parties. Admittedly, in the instant case the appellant is said to have not paid rent from October 1992 to March 1993 for which it is alleged by the appellant that no rent receipt was issued by the respondent to him. Under Section 10 of Rent Ordinance mode of tender of rent is laid down whereunder the tenant has either to tender the rent personally on acknowledgement of the receipt and in failure to obtain such rent receipt, rent could be sent through money order and if money-order is refused, same could be deposited in the office of Rent Controller. The ocular testimony of the witnesses examined by the appellant that rent was paid but no rent receipt was issued inspired no confidence that the apellant/tenant paid rent for the defaulted period to the respondent whereas the respondent has proved non-payment of rent for the said period by the appellant which evidence/testimony was confidence inspiring. The only contention which has been argued by the learned counsel for the appellant Is that the admitted security deposit could have been adjusted towards the arrears of rent for the period from October 1992 to March 1993. I find that in view of para.3 of tenancy agreement with respect to Shop No,1 the said fixed deposit could only be returned to the appellant/tenant when he would hand over the vacant possession of the shop premises after the adjustment of amount of damages, if any, done to premises but the said security amount cannot be adjusted towards the arrears of rent. The facts of the cases cited by the learned counsel for the appellant are different and distinguishable to the facts of instant case.
8. There is also no suggestion with regard to Shop. No,2 that amount of fixed deposit was liable to be adjusted towards the arrears of rent. Besides this, the appellant has not raised this plea in the written-statement that in case he failed to prove the payment of rent then in the alternative the amount of security deposit be allowed to be adjusted towards the rent. The plea raised is after thought and made at later stage therefore it cannot be considered. Reference may be made to Mst. Saeeda Khatoon v. Muhammad Ahmad Latifi (PLD 1990 SC 389) at page 392, para 9 it has been observed; "However, since leave was granted to consider the question whether the deposit of Rs,500 could be adjusted towards rent, we propose to deal with this question also. We have produced the terms of tenancy hereinbefore under which the deposit of Rs,500 was made as security. It clearly states that the amount shall not be adjusted towards future rent. If further provides that the amount is deposited as security for electric, gas and conservancy charges and if any of these charges remain outstanding the same will be adjusted against them otherwise refunded on vacating the premises in good condition. Therefore, it is clear that according to the terms, the amount of security deposit could not be adjusted against the future rent which was not paid in due time.
9. Reliance is placed on Syed Asghar Ali Imam v. Muhammad Ali (PLD 1988 Supreme Court 228) wherein this Court, in spite of the fact that there was no mention in the agreement as to how and when the security deposit will be adjusted or applied, held that "it could not be adjusted against the current liability to pay the rent". It would be of some advantage if the relevant passage which appears at page 231 of the report as quoted here. It reads as follows:-- "Although it is not mentioned in the agreement as to how and when the security deposit will be adjusted or applied, but it can easily be spelled out from the use of the word security and the positive provisions regarding payment of rent in advance at specified time as also the payment of other charges; and the provisions in the negative form that the tenant shall not cause loss or damage to the property or to the landlord. The security deposit, therefore, is to be adjusted by the landlord when the tenant vacates the premises towards unpaid rent as against other payments or loss at any time. It could not be adjusted against the current liability to pay the rent. It has to be adjusted in accordance with the terms of the agreement and not by the Rent Controller at his will. It has been so held by us in the case of Mst. Zarina Khawaja."
10. In the case on hand the term under which the security deposit was made specifically states that it 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."
11. In the circumstances I do not find any merit in this appeal which is 18 hereby dismissed in limine alongwith listed application.
12. Learned counsel for the appellant requests for six months' period. However, three months' period is allowed to him to vacate shop premises subject to condition that the appellant would deposit rent in the office of Rent Controller.