1. ' The appellant has come in appeal against the brder of District Judge, Hyderabad whereby he reversed the order of Rent Controller granting ejectment of the respondents from the premises in their occupation both on the ground of default and personal and bona fide requirement.
2. ' The learned counsel for the appellant has urged before me that the reversal of the finding of Rent Controller by the first appellate" authority is based upon misreading of evidence and on insufficient grounds. On the other hand the learned counsel for the respondents maintained that the appellate authority has reversed the finding on both the issues on very cogent and logical basis.
3. ' The application in this case on the ground of default and personal requirement was filed on 15th August, 1974 and the default was alleged in payment of rent for months of May, June and July 1974: The agreed monthly rent of the premises is Rs,
70. The tenancy started under a written agreement which-was valid for a period of 11 months only and it is admitted before me that after expiry of 11 months period no further agreement was executed between the parties. It is also an admitted position that on the commencement of tenancy a sum of Rs, 760 was taken by the appellant as a security deposit which is still with her In view of the dictum laid down in the case of Muhammad Yousuf v. Abdullah (I) the tenancy between the parties after the expiry of the period of 11 months mentioned in the agreement (Exh. 23) became a statutory tenancy and, therefore, the respondent was also entitled to-claim adjustment of the sum of Rs, 760 which was lying as a deposit with the appellant. If this amount is adjusted against the rents due for the months of May,
(1) PLD 1980 SC 298 ' June and July, 1974 claimed id rent application there was no default on the date of presentation of ejectment application before the Rent Controller. Apart from it the first appellate Court also found that the respondent made genuine efforts to pay the rent and, therefore, there was no wilful and deliberate default on the part of respondent. It is also in evidence that the appellant was away from Hyderabad for these 3 months. In these circumstances, the reversal of the finding of the Rent Controller on this issue by the first appellate authority was neither arbitrary nor against the evidence on record. I, therefore, find no justification to interfere with the same.
4. ' In so far the issue of personal and bona fide requirement is concerned the landlady stated on oath before the Controller that the house in her occupation consists of one room only wherein her three sons, one daughter and two minor sons of her sons are living with her. She also stated that One of her son is about to get married but because of the shortage of accommodation the marriage is Postponed. The statement of landlady with regard to number of her family members and that one of her sons was going to be married and his marriage was withheld on account of shortage of accommodation was not at all challenged in the cross-examination. It was also not challenged in her cross-examination that the present accommodation in her occupation consists of only one room. The assertion of appellant's son Muhammad Usman in his evidence before the Controller that he is going to be married but his marriage was postponed because of shortage of accommodation and that in the house where he is presently residing with his mother, his sister, his elder brother, his elder brother's wife and their two children are also residing was not challenged in the cross-examination by the respondent. Muhammad Ustnan however, admitted in his cross- examination that the accommodation in their occupation consisted of one room on the ground floor and one on the first floor but this admission of witness which the learned counsel for the respondent very strongly relied to show that the application on the ground of personal and bona fide requirement was mala fide, in my opinion is not of much significance and does not in any manner cast a doubt on the bona fide of the appellant, as this fact was also admitted in the ejectment application filed by the appellant. The respondent had taken a specific stand in the written statement as well as in his evidence before the Controller that the sole purpose of the landlady in filing the ejectment application was to enhance rent L Rs, 150 and that his son Usman had demanded a deposit of Rs, 3,000 in place of Rs, 760. This specific case of respondent was neither put to appellant nor her son Usman in cross-examination. The first appellate Court while reversing the finding of the Rent Controller on the issue of personal and bona fide requirement held that the evidence on record led by the appellant did not establish conclusively her requirement but only show a desire. The first appellate authority while arriving at the above conclusion completely ignored the evidence of appellant and her son regarding their requirement which was based on insufficiency of present accommodation with them and the additional accommodation required on account of marriage of one of her sons which was postponed for want of accommodation. The omission by the landlady to mention in her evidence that there was another room in. Her occupation was not of much significance as already pointed out by me earlier as firstly n question was asked to. Her by the respondent in cross-examination and secondly she had herself stated this fact in the ejectment application. It has been held in the case of Hassan Khan v. Mrs. Munawar Begum (1) that in view of the safeguard provided in subsection (4) of section 13 of the Ordinance the assertion of claim on oath made by a landlord that he required the premises for his own use should be accepted by the Rent Controller as bona fide even if such claim by itself may be insufficient, yet is consistent with the averment in his application and is not shaken in cross- examination and not disproved by any evidence in rebuttal. The above observations in the case was specifically approved by the Supreme Court in the case of Mst. Toheed Khanam v. Muhammad Shamshad (2). After examination of the facts of the present case in the light of the above observation I am of the view that the appellant sufficiently succeeded in making out a case on the ground of personal and bona fide requirement and, therefore. The reversal of the findings of Rent Controller by the first appellate Court was not justified. I accordingly reverse the finding of first appellate authority on the issue of personal and bona fide requirement and restore that of the Rent Controller.
5. In the result this appeal succeeds on the plea of personal and bona fide requirement of appellant and I accordingly order ejectment of respondent from the premises in his occupation on that ground. The respondents are however allowed six months from today with the consent of the learned counsel for the appellant, to vacate the premises in their occupation subject to the condition that during this period they shall continue to deposit monthly rent in Court. There will be no order as to costs in the circumstances of the case.
(1) PLD 1916 Kay. 832 (2) 1980 SCMR 593