' RANA BHAGWAN DAS, J.---This appeal with the leave of the Court is directed against Sindh High Court dated 25-10-1994 setting aside an order passed by the Rent Controller dismissing respondent's ejectment application filed against the appellant for his eviction from the demised shop premises. By the impugned judgment learned High Court ordered eviction of the appellant on the ground of default.
2. Appellant is tenant of the respondent in respect of a shop situated in Memon Society, Khadda, Layari, Karachi, let out to him by the original landlord, Muhammad Hashim, somewhere in 1964 at a monthly rental of Rs,45. Respondent being son of the landlord, after his death in 1975, sought eviction of the appellant in October, 1991, on the ground of default and subletting. Appellant controverted both the grounds in his written reply and resisted his eviction. With regard to default in payment of rent, he stated that he had been regularly paying rent and denied that the respondent had visited his shop several times or that he could not be found out. He pleaded that besides the respondent other family members also used to collect the rent from him and maintained that the respondent had created false grounds for his ejectment. According to the appellant, after shifting of the respondent without intimating change of his address he tendered rent for the months of January and February, 1989 by money order dated 31-1-1989 which was not returned till 5-3-1989. He again remitted rent for the month of March, 1989 which was also refused to be accepted whereafter he had been depositing rent in Miscellaneous Rent Case No,536 of 1990 w.e.f, January, 1989.
3. On controversial pleadings learned Rent Controller settled two issues with regard to default and subletting. On assessm ent of evidence of the parties he concluded that the appellant had not committed any default whereas the respondent failed to prove subletting. Accordingly, ejectment application was dismissed vide order dated 31-1-1993. On statutory appeal before the High Court, however, a learned Single Judge reversed the finding on the issue of default and concurred with the finding of the Rent Controller ' on the question of subletting. Learned Judge in the High Court was perhaps influenced by late deposit of rent by the appellant in the Miscellaneous Rent case and observed that the appellant failed to explain as to why he discontinued the remission of rent after March, 1989.
4. Leave to appeal was granted to consider whether in the circumstances of the case learned High Court was justified in directing ejectment of the appellant particularly when the respondent after his shifting did not intimate about his new address to the appellant and also to examine the circumstance that the appellant had made all efforts to pay rent to the respondent. Another ground noted in the leave granting order is as to the impact of absence of service of a statutory notice under section 18 of the Sindh Rented Premises Ordinance (hereinafter referred to as the Ordinance) on the appellant after the -death of original landlord Muhammad Hashim.
5. We have heard the learned counsel for the appellant whereas none has turned up to plead the cause of the respondent. We are not inclined to agree with the technical objection advanced at the Bar that the affidavit filed by respondent was not sworn before the Commissioner for taking Oaths or that before recording cross-examination learned Rent Controller failed to endorse the administration of oath or solemn affirmation to the deponent. Since the respondent was subjected to cross-examination by the appellant's counsel, the defect of administration of oath by the Commissioner was a mere irregularity and it stood cured when he was examined before the Rent Controller who was competent to record evidence on oath. Likewise, omission to record that the cross-examination was on solemn affirmation on the part of the Rent Controller would not prejudice the right of the respondent as it is well-settled principle of law that no person shall suffer for the mistake of Court. The omission or error on the part of the Rent Controller may thus be ignored it being an irregularity not vitiating the trial.
6. Likewise, we are not impressed by the contention that after the death of Muhammad Hashim in 1975 respondent being one of the legal heirs did not serve notice under section 18 of the Ordinance on the appellant intimating him about the change of ownership for the purpose of remission of rent. Since the appellant in his written statement candidly pleaded that he had been paying rent regularly to the respondent as also other inmates of the respondent's family collected rent from time to time, this ground is no longer available to him. In our view mere absence of notice in strict terms in this peculiar circumstance of the case would not be fatal vitiating the entire proceedings.
7. Adverting to the plea that there was no wilful default on the part of the appellant who had been always ready and willing to pay and tender the rent to the respondent but it was he who created false grounds for ejectment of the appellant, we find from the record that the appellant actually remitted rent for the months of January to March by two separate money orders which were returned undelivered. This circumstance clearly shows that the appellant was not unmindful of his legal obligation to tender rent to the respondent and he did his best to discharge his obligation arising out of the contract of tenancy. It is in the evidence that the respondent had been collecting rent from the appellant from time to time and there was smooth sailing till December, 1988. It is also admitted by respondent in his evidence that the appellant is a tenant in the demised premises since 1964 and that he himself is residing in Gulshan-e-Iqbal from 1980. He has admitted the rent receipts confronted to him duly signed by one Muhammad Siddique, husband of his sister Mst. Zubeda in token of acknowledgement of rent which fully supports the appellant's version. He dishonestly avoided to admit if the respondent had remitted rent by money order from January to March, 1989. Nevertheless, he was constrained to admit that before shifting to Gulshan-e-Iqbal he used to reside in Federal Area and Memon Society but he did not intimate the appellant about his shifting of residence to Gulshan-e-Iqbal. On his part, the appellant explained that he was very regular in payment of rent and never fell in arrears. He reiterated that he was not a defaulter in payment of rent and that the respondent had created a false ground in order to eject him illegally.
After asserting that he had tendered rent by two separate money orders for the months of January to March, 1989, he testified that later, he started depositing rent in Miscellaneous Rent Case No, 536 of 1990 and has been continuously depositing the rent uptodate. With regard to deposit of rent in the office of the Rent Controller in 1990, appellant justified his conduct by stating that he did not tender the rent for the year 1989 to the respondent because he did not supply him the changed address after vacating the flat and shifting to Gulshan-e-Iqbal.
8. On reappraisal of the evidence we are of the view that the respondent had deliberately not intimated the appellant of his change of address with the result that the latter was handicapped in paying the rent to him. On his part he bona fide believed that the remission of rent on two different occasions through money orders was sufficient compliance with requirements of law and he did dot waste much time after finding out that the respondent did not communicate with him either by intimating the change of address or for collection of rent which was the long-standing practice before January, 1989. It is true that there has been some delay in approaching the Rent Controller for voluntary deposit of rent in the account of the respondent but it was long before the institution of the ejectment petition which was filed on 20th October, 1991, that the rent was deposited.
9. We are of the view that the respondent had not been just, fair and reasonable towards the appellant by falsely alleging that he wrote down a rent receipt for the month of January, 1989 and made several visits to the shop but could not find out the appellant. Admittedly, he has utterly failed to prove the ground of subletting in both the Courts. Therefore, he was left with no option but to press into service a falsely engineered ground of default in payment of rent. We find that the conduct of the appellant had neither been unreasonable nor objectionable in meeting his liability arising out of tenancy agreement between the parties. On respondent's own showing appellant is tenant in the demised premises since 1964 and there was no default in payment of rent till December, 1988 which circumstance also strongly leans in favour of bona fides of the appellant.
10. Exercise of discretion by Rent Controller in ordering ejectment of a tenant on sound reasons and in accord with principles laid down by superior Courts has remained under active consideration of the Courts. Discretion of the Rent Controller is, however, neither unrestricted nor ubridled. It is judicious in character and ought to be exercised in line with the facts and circumstances of each case. No hard and fast rule or parameters, however, can be laid down in this respect as the facts of each case would vary from case to case. There can, however, be no cavil with the proposition that where a tenant has been keen and dutiful in discharging his legal liability and the landlord has been creating difficulties and finding devices to render it difficult for the tenant to remit the rent in all probability and fairness discretion should be exercised in favour of a prompt, alive and conscious tenant. A reference may be made in this respect to Muhammad Yamin v. Mashroofullah Khan (1980 CLC 848), Allahando v. Muhammad Asghar (1982 CLC 2309), Karamat Hussain v. Kazi Ali Muhammad (1986 SCM R 441) and Inayatullah v. Zahoor-ud-Din (1987 SCM R 1313).
11. In the circumstances of the case we are of the considered view that the conclusion drawn by the Rent Controller was just, fair and proper whereas learned High Court took a contrary view on mathematical calculation with regard to deposit of rent after thirteen months from the date it fell due. The exercise of discretion by the Rent Controller, in our view, was justified and warranted by the facts of the case whereas the substitution of the finding by the High Court cannot be sustained in law.
12. For the aforesaid facts and reasons we are convinced that the voluntary late deposit of rent on the part of the appellant was neither wilful nor deliberate. It was rather on account of the circumstances created by the respondent by keeping him in dark about his whereabouts.
Judgment of the High Court, therefore, cannot be sustained. Accordingly, we allow this appeal and set aside the impugned judgment and restore that of the learned Rent Controller.