This is an appeal against the order of eviction passed by learned Rent "Controller Tando Adam against the appellant on 6th October, 1987. The respondent/landlord had clamed that the appellant had committed default in the payment of rent since December 1982 and that he had also sublet the shop to "some other person:" The ejectment petition was filed in September 1984. In his written statement the appellant stated that he had paid the rent for the month of December 1982 and. The rent for the subsequent months was offered to the landlord but he refused to accept the same and as such he first sent the same to him through money orders which were also refused and had been returned to him whereupon he' commenced depositing the rent id the Court through miscellaneous petition. In proof of his case, the 'landlord/ respondent 'had tendere4 his own affidavit arid the affidavits of his son. Luqmanul Haq Farooqui and another person Gulsher Khan, whereas the appellant/tenant submitted his own' affidavit and the affidavits of Shahabuddin and Muhammad Mansha. The parties also tendered some documents. On the basis of the evidence adduced by ,the parties before him, learned Rent Controller came, to" the ,conclusion that the - appellant had committed default and, -had ' also sublet the premises and, consequently, he passed the impugned order of ejectment against the appellant. Learned counsel of the parties have been heard and the record has been perused.
2. The rent4as being paid by the appellant against receipts and the case of the appellant is that whereas he is in possession 'of all the receipts up to November 1982, the receipt in respect of the rent of December 1982 had been stolen from him. This explanation was not accepted by the learned. Rent-- Controller and I am also of the same opinion. The appellant has failed to establish that he had paid the rent for the month of December 1982. However, I agree with the learned counsel for the appellant that even if rent for December 1982 had not been paid, the appellant can' still not be held to be a, defaulter because be had tendered the rent by money order in time, notwithstanding the fact that according to him the rent so tendered pertained to the month of January 1983. The first money order was sent by the appellant on 12-2-1983. Now the rent for the month of December 1982 was-payable by 10th of January 1983 and he had a grace period of 60 days to pay the same, that is to say, he could pay this rent up to 10th March, 1983. However he sent the rent of one month on 12-2-1983 through money order coupon Ex.29/1. This tender was thus within time even for the rent of December, 1982. The next money order was sent by the appellant on 5-3-1983 vide money order Coupon Ex.29/2 and this was for 2 months and although this money order coupon says that the rent sent was for the months of January and February 1983, we may take that it was for the months of December 1982 and January 1983., When even this second money order was refused by the respondent, the appellant moved a Misc. Application in the Court of Rent Controller Shahdadpur in April 1983 and deposited the entire rent on 2-4-1983 and he is ever since regularly doing so. I am therefore of the view that the appellant had not committed any default. .
3. Even otherwise no habitual default is alleged against, the appellant because even according to the respondent himself, the appellant had committed default only in respect of the rent for the month of December 1982. In this respect I was referred to 1986 CLC 1958 in which it is held that when there is one month's default in the payment of rent, the Rent Controller should exercise the discretion in favour of the tenant. Another authority on the point is 1986 CLC 701 wherein also, the default was only for one month and the same opinion was given that one month's default was not enough for the learned Rent Controller to use his discretion in favour of the landlord and to pass an order of ejectment. In this last authority, the default of one month was conclusively proved whereas in the case before us, the default even for one month has not been inclusively proved as explained above. Learned counsel for the respondent had cited an authority in which opposite view has been taken. The authority is 1988 CLC 1483,(Shirimati Nirmala v. Ghulam Rasool). The facts of this case were that the ejectment was sought on the ground of default for one month and the tenant denied the relationship of landlord and tenant and on this relationship having been proved, an order of ejectment was passed against the tenant and it was held by this Court in appeal that ejectment- could be ordered even if there was default in the payment of only one month's rent. The facts of this authority can be distinguished from the present case. In that case the relationship of landlord and tenant' was denied which was later on proved by evidence on record. The tenant had thus not come to the Court with clean hands. It is of course true that there is no provision of law to the effect that ejectment scald not be ordered if there was default in the payment of rent for only one month but the point -is as to whether ejectment, which is a matter of discretion of the Court, should, or should not be granted to the landlord under such circumstances. The facts of the present case suggest that the appellant was regular in the payment of rent and the dispute arose only in the month of December 1982. Although there is a dispute as to whether the rent for December 1982 was paid by the appellant or not, the fact remains that the appellant tendered the` rent by money order as early as 12-2-1983. In view of the facts of this case, I am of the view that the discretion should be exercised in favour of the appellant. I would therefore set aside the findings of the learned Rent Controller on this point.
4.The second ground on which ejectment was sought by the respondent and was granted by the learned Rent Controller was that the appellant had sublet the shop to "some other person". No details were given as to who was the sub-tenant in the shop. The charge was denied by the appellant in this written statement. The respondent made the same vague assertion in his affidavit in evidence. The respondent's son Luqmanul Haq Farooqui also did not elaborate as to who was sub-tenant. The respondent's witness Gul Sher Khan, however, stated in his affidavit that one Siddique was in possession of the shop as a sub-tenant. Even this witness did not give the full name of the sub-tenant. This Siddique, whose full name is Muhammad Siddique, has filed his own affidavit and stated therein that he was attorney of the appellant as well as his servant and was working in the shop as a servant and not as a sub-tenant. The appellant also produced in evidence the affidavits of Shahabuddin and Muhammad Mansha who have both deposed that the appellant is still in possession of the shop and doing business therein as a Kiriana merchant and that the appellant is helped by his servant Muhammad Siddique. The veracity of all these three witnesses had not been shaken in their cross-examination. As has been stated earlier, the respondent landlord had not given any detail about the subletting and only vague statement was made in this regard. Learned counsel for the appellant has relied on two authorities on this point. One is 1986 CLC 1774 (Akhlaq Hussain and others v. Naim) in which it is held that when a landlord neither gives particulars of sub-- lessee nor time of sub-lease then sub-letting cannot be held as proved. The second authority is 1986 CLC 1485 (Izhar Hussain Naqvi v. Muhammad Saeed) in which it is held that when neither name nor other particulars of the alleged sub-- tenant are mentioned by the landlord nor the period has been shown since when the alleged sub-tenant was in possession of the premises, then the sub-letting cannot be held to have been proved. Learned counsel for the respondent, on the other hand, relied upon 1988 CLC 667 (Syed Muhammad Abbas v. Mst. Khatoon Bai). The facts of this case were that while alleging subletting the landlord had given the name of the sub-tenant whereas the tenant did not disclose the name of the person who was alleged to be running the shop as a servant and this omission was in his written statement as well as in his evidence and on the basis of evidence on record, it was held that the landlord had established his case that the demised premises were in the possession of the person other than the tenant. The facts of this authority are materially different from the facts of present case where, while the landlord had not named the sub-tenant, the tenant had specifically shown in the evidence that he was in possession of the shop and was running it through the help of his servant and he himself was in possession of the premises as a tenant and the servant was only helping him. The mere fact that the tenant was living at some distance from the shop in question makes no difference. No doubt the appellant himself did not file his affidavit in evidence but the affidavit of his special attorney is sufficient. Under the circumstances, since the landlord had given no details about the sub-tenant or sub-tenancy, I would hold that the respondent has not been able to prove the allegation that the appellant had sublet the premises to some other person.
5. As a result this appeal succeeds, the order of Rent Controller is set aside and the ejectment petition of the respondent stands dismissed. Under the circumstances, the parties are left to bear their own costs.