1. ' The respondent filed an application for ejectment against the appellant on the ground that he has committed default in payment of rent, causing nuisance to the neighbor and that the disputed premises is bona fide required for her own use and for the use and occupation of her son for residential purposes whose marriage is to be solemnized. The appellant denied these allegations.
2. During the pendency of the case Devji, tenant died and his legal heirs were brought on record and are the appellants herein. The learned Controller by the impugned order held that the premises is bona fide and in good faith required by the respondent and on the other issues the findings were in the negative.
3. ' Mr. Ashiq Ali Abdullah the learned counsel for the appellant has assailed the finding of the learned Controller on two grounds firstly, that the need of the respondent was male fide and secondly, that the respondent's requirement has not been proved. So far the first contention is concerned the learned counsel has referred to the evidence of the parties and particular mention has been made to the previous litigation and the attempts made by the respondent to eject the appellant by force or through other means. In this regard it seems that the respondent had made a complaint against the appellant with the police and the appellant had filed Suit No, 1942 of 1978 for declaration which was compromised on the statement of the respondent that she would not eject the appellant except in due course of law. In order to show that the respondent's action is male fide the learned counsel referred to the averments made in the written statement filed by the respondent in Suit No, 1942 of 1978. The learned counsel has referred to paragraphs 2, 4 and 7 of the written statement to show that the respondent had nowhere stated that the premises was required for her bona fide use and occupation. I have gone through the plaint and written statement and find that the reply in the written statement was restricted to the averments made in the plaint and as the respondent was making specific reply to such allegations there, was no occasion to introduce her bona fide need because that was neither an issue between the parties nor such allegation was made by the appellant which required any mention in the written statement.
4. Therefore, merely because while replying to the allegations of the appellant in that suit, the respondent did not disclose at that stage that premises is required by her bona fide and in good faith and for the occupation of his son, does not in any manner affect the good faith and bona fide of the respondent.
5. ' The learned counsel then referred to the statement of the respondent, certified copy of which has been filed with the memo, of appeal and contended that the ejectment application lacks bona fides. The learned counsel particularly referred to the cross-examination which in the typed copy produced by him reads as follows:-- "It is incorrect that I do not require the suit premises and no rent is demanded. I have filed this case in counterblast."
6. ' In fact a reading of the entire statement shows that it has incorrectly been typed. I have examined the original record of the Controller in which the statement has been recorded in the following manner:-- "It is incorrect that 1 do not require the suit premises and no rent is due and I have filed this case in counterblast."
7. ' There is a clear typing mistake in the typed copy which has created this confusion. It is well- settled that if a landlord substantiates his bona fide and if it is challenged, the burden is upon the tenant to establish such facts which militate against the bona fide of the landlord. From the facts pointed out by the learned counsel for the appellant, the male fides have not been established nor the respondent's bona fide requirement is disproved or rebutted.
8. ' On the second ground the learned counsel has referred to the cross-examination of the respondent where she has stated as follows:-- "I am living on the first floor and on upper floor my daughter resides. I am in occupation of one small room."
9. ' The learned counsel for the appellant contended that in the ejectment application the address of the appellant has been shown as Room No, 1 Ground Floor of the building and in evidence she has admitted to be in occupation of the accommodation on the First Floor, therefore, there are two rooms available with the respondent and her need is only an artificial one.
10. ' Mr. Abdul Karim Siddiqui the learned counsel for the respondent has contended that the respondent is residing in one room of the Ground Floor and neither in the written statement nor in the affidavit of evidence the appellant has averred that she is residing on the First Floor also. In this regard the learned counsel has also referred to the statement of the deceased tenant Devji who had stated as follows:-- "It is correct that the applicant resides on the back of my premises. Along with the applicant her daughter resides .It is correct that the marriage of the applicant's son is to be solemnized. The premises of the applicant consisted of one and half room."
11. ' Admittedly the appellant is residing on the Ground Floor and according to the above admission the respondent is residing on the back side of his premises. She is, therefore, residing on the Ground Floor and not on the First Floor. If the respondent would have been living on the First Floor the appellant would have produced such evidence to establish this fact or in his own affidavit of evidence he would have stated such fact. In view of this admitted position in my opinion the statement that the respondent is residing on the First Floor is not correct and a result of mistake.
12. The respondent requires the disputed premises as she wants to marry her son who is employed at Saudi Arabia. This allegation has been made in the application and has been stated in her affidavit of evidence. These facts have been neither shaken in cross-examination nor rebutted. In fact this has been admitted by the appellant. In this view of the matter as held by in PLD 1976 Kar. 832 the respondent has fully proved her case for bona fide use and occupation. In the result the order of the Controller cannot be disturbed. The appeal is dismissed. The appellants are allowed to vacate the disputed premises within three months.