' This is tenant's second appeal under section 15(4) of the West Pakistan Urban Rent Restriction Ordinance, 1959. The premises in dispute were rented out to the appellant at the monthly rent of Rs, 1,000. In addition, he had made a deposit of Rs, 10,000 as security with the landlord, respondent herein. For some period from November 1972, the appellant, it was alleged by the respondent, failed to pay the rent. The appellant pleaded that the deposit of Re. 10,000 could in law be adjusted towards the rent and the same had been adjusted with prior arrangement with the respondent, therefore, there was no default. This led to the following solitary issue on merits :- "Is the respondent entitled to adjust the amount of security towards payment of rent ?"
2. The learned Rent Controller found the issue against the appellant and ordered his eviction on ground of default. The learned lower appellate Court a armed the learned Controller's order. Hence this second appeal.
3. Two questions arise in this case r One, whether the security could be adjusted towards rent ; Two, even if strictly speaking, adjustment was not permissible, whether in the circumstances of the case discretion should have been exercised against the appellant.
4. A peculiar feature of security involved in this case, which distinguishes it from the other cited cases on security, is that as found from respondent's letter Exh. A-7 the real purpose of this deposit was to off-set a demand for increase in rent from Rs, 1,000 p. m. To Re. 1,500 p.m. The respondent insisted in Exh. A-7 that "I must emphasise that I wanted Rs, 10,000 as security and not as an advance rent of the premises. If you are not willing to deposit this amount as security of the premises, I will not demand any advance from you and will expect a monthly rent of the five shops to be Rs, 1,500 per month. To make the matter more clear you please either deposit Rs, 10,000 as security of premises or agree to the enhanced rent of Rs, 1,500 instead of Rs, 1,000 per month." This was in contravention of provisions of section 7 of the Ordinance which prohibits the payment/deposit of any fine, premium or "other like sum", in consideration of grunt, renewal or cent nuance of tenancy. The security in this case, when considered in the above context, under the rule of ejusdem generic was a sum to avoid payment of Rs, 500 per mensem over and above Rs, 1,000 per mensem which, it is admitted, was the agreed rent between the parties.
5. Having reached the foregoing conclusion about the nature and conditions of deposit, it is unnecessary to go into the question whether the appellant could formally adjust this amount to wards the rent and leave the respondent without the benefit of the deposit--the so-called security.
It is also unnecessary to go into the question as to what is the formal mechanism provided by the Ordinance for such an adjustment. At no relevant time, the appellant denied the right of the respondent to charge Rs, 1,000 as monthly rent. Nor did he withdraw the deposit so as to reduce the amount lying with the respondent substantially below his liability qua the monthly rent. The respondent waited for about ten months to file the eviction application. And lastly, the appellant did not challenge nor he disobeyed the order passed under section 13(6) for deposit of the same amount (which would include the so-called security). In these circumstances, particularly in view of the nature of the deposit in this case, it cannot at all be said that the so-called default was wilful or with mala fide intention of depriving the respondent of his 'due' amount-rent. This cannot, in view of the deposit with the respondent, be treated as even late payment of rent as distinguished from non-payment. Such are the cases wherein, if mind is properly applied to all relevant factors, no scope would be left for not exercising the discretion, admittedly allowed by law, in favour of the tenant. It would be in accord with sound judicial principles.
6. The learned Rent Controller as also the learned lower appellate Court failed to consider the case in proper perspective. The discretion has been exercised against the appellant, in the facts and circumstances of the case, in violation of the afore noted law and principles. This appeal is allowed.
The impugned orders are set aside. The eviction application filed by the respondent is dismissed.
There shall be no order as to costs.
7. Before parting with this judgment, it needs to be mentioned that three rulings were cited at the bar. They are : Mian Muhammad Abdullah v. Sheikh Nawab Din (1) Mst. Zubaidah Begum v. Mlrza Mumtaz Hassan (2) and Muhammad Amin v. Ahmad Bakhsh (3). As observed in para. 4 above, the facts of this case distinguish it from those in the cited rulings. And the conclusions reached herein are in no way in conflict with those rulings-in particular, it needs emphasis that the subject-matter in the case before the Supreme Court (Mian Muhammad Abdullah's case) related to orders under section 13(6) of the Ordinance which left very little scope for discretion. Yet it was thought necessary that the payments made to (deposit lying with) the landlord could not be ignored while considering the question of default.
(1) 1971 SCM R 336
(2) PLD 1975 Lab. 1504
(3) PLD 1976 Lah. 1302