1. The appellant is a tenant of the 1st floor of premises No. D/113, situated on Survey No. 585/342, Mahmoodabad, Karachi. Admittedly, the monthly rent is Re. 100 payable in advance on the 5th of each 10th of February 1971.
2. The respondent-landlord moved the Rent Controller and XI Civil Judge, Karachi, for the ejectment of the appellant, under section 13 of the West Pakistan Urban Rent Restriction. Ordinance, 1959, hereinafter referred to as the Ordinance). The ground taken was that the appellant tenant had defaulted in the payment of rent for the months of November 1950 to January 1971. It was also alleged that the period of tenancy bad expired and the tenant bad violated the Agreement by not vacating the premises after such expiry.
3. At the outset, it may be stated that the findings of the learned Rent Controller as regards the default in payment of rent for the month of February 1971, is not sustainable in view of the admitted facts. According to the written statement of tenant, the rent for each month was payable on the 5th of the month for which it was due. The rent application was filed on 10th February 1970. Grace period of 15 days as allowed by section 13 (2) (1) of the Ordinance was yet to expire on the 20th of that month. In these circumstances there were no grounds to bold that the default was also committed with respect to the rent for the month of February 1971.
4. However, there is concurrent finding of fact as regards the default for the months of December 1970 and January 1971. Mr. Abrar Hassan learned counsel for the appellant, has not challenged this finding in view of the evidence on records. His contention is that according to clause '8' of the Agreement (Exh. 6) an amount of Ra. 200 was lying in deposit, and that according to the receipt issued by the landlord for this amount, it was by way of advance for two months. Proceeding on this premises the learned counsel contended that in the face of deposit of two months' rent, the landlord could not claim any default in the payment of rent, as this amount was to be adjusted towards rent for two months.
5. Clause 8 of Tenancy Agreement reads as follows : "And the said tenant agrees with the said landlord that he will pay a sum of Re. 200 as security for the performance of the covenants reserved herein and pay the monthly rent of Rs. 100 per month in advance, on 5th of each calendar month."
6. This clause, no where, states that the amount is by way of advance rent for two months. It, in clear term, states that this amount Is by way oil security for the due performance of the convenants.
7. Although regular payment of rent in advance, on the 5th of each month, is one of the covenants of the Agreement, but it is, by no means, the only covenant-1 According to the Agreement there arc many other obligations to be performed A by the tenant, for the peaceful enjoyment of his tenancy.
8. Additionally and among other things the tenant is forbidden from subletting the premises without the permission of the landlerd ; he is to permit the landlord of his~ agent to inspect the premises and to hand over the possession at the expiry of the lease. The amount of security is deposited with the landlord in order, that the tenant may duly perform his obligation under Agreement. Thin amount, by no means, is an advance towards the rent.
9. The language of the receipt issued by the landlord is of no consequence when it says that the amount of Re. 200 is by way of deposit of rent for two months. This is so for the simple reason that a receipt, not being part of a contract, does not have the effect of changing or adding to the terms of the contract. As the agreement, in unambiguous terms declares that Ibis amount Is by way of security the recital in the receipt will have no effect on such clause of the agreement.
10. Alternatively Mr. Abrar Hassan contends that if the amount of Re. 200 is not by way of deposit of future rent, it falls under the definition of premium or any other like sum as envisaged by section 7 of the Ordinance, and there being a bar against charging such premium, the deposit was illegal.
11. Proceeding from this premise the learned counsel contends that the very agreement of tenancy is void in view of the provisions of section 23 of the Contract Act. Section 7 of the Rent Ordinance places a bar against charging any amount in consideration of the grant, renewal or continuance of a tenancy. In order that an amount should be hit by the provisions of this section, it has to be shown that the grant of tenancy, its renewal or its continuance was so occasioned for the sole reason of payment of such consideration. In view of clear language of clause 'a' of the tenancy agreement it was incumbent upon the appellant firstly to specifically plead that the recital in the agreement was not correct and the amount paid was by way of premium and secondly to prove such contention with cogent evidence. Neither the pleadings contain any such allegations not has any evidence been brought on record to support this contention. It is, therefore, not possible to hold that the tenancy was granted only because payment of Re. 200, as mentioned is clause (8) of the Agreement, was made ; or that this amount was by way of `premium or any other like sum' as envisaged by section 7 of the Ordinance.
12. This final contention raised by the learned counsel is that the default, if any, is purely technical in nature which warranted the exercise of discretion under section 13 (2) of the Ordinance in favour of the tenant. In this regard learned counsel relies on three factors. Firstly the money order sent to the landlord in March 1971 ; Secondly, non-return of Re. 200 ; and finally, the notice sent by the landlord to tenant on 9th of January 1971.
13. The notice referred to above was not produced at the time of trial. An application under Order XLI, rule 27 was moved before the First Appellate Court which was not granted. Learned counsel has contended that such refusal was not warranted by law. I find no force in this contention. There was every opportunity with the tenant to produce that notice at the trial. He chose to file his own reply to such notice but withheld the notice itself. Obviously, the tenant appellant could not be permitted to fill in any lacuna later on left in his case at the trial.
14. The notice was desired to be brought on record because, according to the appellant, it did not contain any allegation of default. Silence of notice about the default could not advance the case of appellant, when default itself is admitted, in this aspect of the matter the production of notice would not have been of any assistance in the decision of the case.
15. The rent sent through money order during the pendency of the rent application is of no consequence because any subsequent payment of ran c does not have the effect of washing out the default.
16. The stage for the return o: the amount of tenancy will arise only when the tenancy comes to an end. Before that, no claim for the return of the same could be made, nor such a fact be made the basis for claiming exercise of discretion under section 13 (2) of the Ordinance in favour of the tenant.
17. Mr. Abrar Hassan relies upon an unreported judgment of this Court in 11-A No. 122/6-A, for claiming exercise of discretion in favour of the tenant. The facts of that case are distinguishable inasmuch as Rs. 200 was specifically paid towards the advance rent. At the time the default was alleged there was a balance of Rs. 140 in deposit with the landlord. This circumstance wits found to be fit enough for the exercise of discretion in favour of the tenant. This view was affirmed by their Lordships of the Supreme Court when they refused to grant leave to appeal against such order of the High Court. But in view of different facts the ruling has no application to the present case.
18. For the reasons given above, I find no force in this appeal and dismiss it with costs.
19. The tenant is allowed 4 months' time to vacate the premises.