1. ' The appellant is a tenant in respect of the first floor of the premises of the building bearing No, 70 Overseas Housing Society Plots Nos. 7 and 8 on the monthly rent of Rs,500 exclusive of electricity and Sui-gas charges. The appellant was inducted as a tenant under a tenancy agreement, dated 1-5-1973. The respondent filed ejectment case on the ground that the appellant has committed default in payment of rent from October, 1970 to December, 1971 and failed to pay electricity and Sui-gas charges from July, 1979 till filing of the case on 9-1-1978. Another ground for seeking ejectment was that the respondent has started import business and as her children have also grown up, she is facing great inconvenience and requires additional accommodation. The appellant filed his written statement and denied that any default has been committed. As regards electricity and Sui-gas charges, it was pleased that the \respondent has withheld the bills on one pretext or the other, and therefore, the amount has not been paid. It was further pleaded that drying the months of July, August and September, 1973 the respondent was not present and in spite of his best efforts to persuade her husband and attorney to accept the rent he did not accept, therefore, the rent was tendered through cheque. The claim of personal bona fide use and occupation was also denied. The learned Controller held that no default has been committed but granted the ejectment application holding that the premises is bona fide required for the use and occupation of the respondent and her family members, ' Mr. Inamul Haq the learned counsel for the appellant has contended that bona fide requirement of the respondent has not been established. He has referred to the ejectment application, and also to the evidence of the respondent's attorney and contended that in fact the respondent's requirement is of only one room and considering the accommodation available and the number of the family members and their ages the present accommodation in her possession is sufficient for her family members, In para. 8 of the application the respondent has made the following averment:- "The applicant has started import business in the name and style of 'Esbi Corporation' at the same address and duly registered with Income-tax and C.C.I.& E. The applicant has also a telephone No, 430994 in the name of her 'Esbi Corporation' since August 1976 and she is facing great inconvenience to hold her office in her own premises inasmuch as her children have also grown up and for their needs additional accommodation is required."
2. ' In his affidavit of evidence the respondent's husband has repeated the same facts. From his evidence, it is established that the respondent is running an office in the name and style of Esbi Corporation her children are growing up and are receiving education. Due to the growing age of the children and the business which is being carried on by the respondent she is facing difficulties and inconvenience. Referring to this fact Mr. Inamur Rahman the learned counsel for the appellant contended that actual requirement of the respondent No, 1 is one room. In this regard he has referred to the evidence of P.W.1 Matin the relevant part of which is produced as follows:- "I will either use the disputed premises for office or the residential purposes. I require only one room of the disputed premises for office use. It is correct that the disputed building is only for residential purpose."
3. ' From this statement it cannot be concluded that the respondent is in need of only one room for her office purpose. This statement implies that at least one room is required additionally for carrying on business of the respondent. As regards his necessity, the undisputed position is that besides husband and wife, in 1981, when the statement of the respondent's husband was recorded they had four children. Presently eldest one is a daughter and about 15 years, then there are two sons aged 14 and 10 years and youngest one is daughter aged two years in 1981. Admittedly the respondent has two bedrooms, drawing, dining and one small study room. Out of 4 children three are of growing age and receiving education in school. They cannot be put in one bedroom. Due to growing age of the children with the passage of time their need will increase. The respondent would be requiring more than one bedroom for proper accommodation and living of her family members, The respondent is living on the second floor, whereas the disputed house is on the first floor. Therefore, both the houses can be combined to one compost single unit.
4. ' The learned counsel. for the appellant contended that if three children are accommodated in one bedroom, there is s study room which can be used for the purpose of ,their study and then hardly there will be any need for their accommodation. The contention is misconceived.
5. The learned counsel also contended that the respondent needs one extra room whereas the accommodation in appellant's house consist of two bedrooms, drawing and dining room, therefore, it is far in excess of the alleged need of the respondent. Firstly it is not correct to say that the respondent requires one room. Even if one room i required for office purpose at least one more room may be necessary accommodate his two children. Therefore, at least the drawing room which may be used as an office and one more bedroom will remain occupation of the family members, If there is one extra room available, it does not mean that due to excess accommodation the respondent' claim will be defeated.
6. Mr. M.H. Siddiqui, the learned counsel for the respondent contended that it is not the right of the tenant to question in what manner the landlord will use the premises. It is true that the tenant cannot question the manner of user of the premises by the landlord but he can surely challenge and rebut the landlords' claim of bona fide requirement and personal use. In doing so the tenant can show that the purpose for which the premises is required or the need projected by the landlord is either false or artificial.
7. ' The learned counsel for the appellant referred to Mst. Hajiran Bai v. Mst. Aisha Bai 1982 CLC 1444 where it was held that mere statement on oath does not prove the bona fide requirement. In that case the landlord has required the premises for bona fide use for such persons who were not the members of the family. In fact while dealing with that case I relied and referred to PLD 1976 Kar.
8. 832 where it was held that if the assertion made on oath is found to be consistent with the averment in the application and is not shaken in cross-examination or disproved in rebuttal the same should tie accepted. in Hajra Bibi's case the facts were quite different. In the present case the principle of PLD 1976 Kar. 832 are applicable with full force. The averments made in the application have been fully supported by affidavit of evidence which has not been shaken in cross- examination. Therefore, even if there is some slight discrepancy as alleged by the learned counsel for the appellant that only one room is required for office or that there is one extra room available after accommodating the entire family, the bona fide requirement cannot be said to have been rebutted or disproved. The availability of extra room cannot deprive the respondent in making the claim. In many cases it is not possible that accommodation in the disputed premises should fit in all respect with the needs of the landlord in a mathematical sense. In such cases some adjustment has to be given either towards excess or shortage.
9. ' There may be cases where the disputed accommodation may not be sufficient to cater the need but is such accommodation is more suited to the landlord than the existing accommodation in his occupation then the landlord must succeed. Likewise if in the premises in dispute there is some extra accommodation in excess of the need of the landlord, then he cannot be deprived of the premises merely because there is extra accommodation. But this extra accommodation should be within reasonable limit and not much far in excess of the requirement of the landlord so as to militate against his bona fides.
10. The learned counsel for the appellant then contended that require ment, should be for the male children's and as the eldest child is a daughter her requirement should be ignored if the need of two 'sons of 14 and 10 years of age is the fully satisfied. The limitation placed by the learned counsel that the landlord can seek ejectment for the requirement of male children and not female children is misconceived. Section 13(3)(a)(1)(a) authorizes the Controller to eject a tenant if the E premises is required by the landlord in good faith for the occupation of any of his children. The word children includes sons and daughters both. It is unthinkable that the Legislature has provided for the requirement of male children and not for the female children. The law does not distinguish between a male child and female child. In fact according to our culture, custom and society a female child requires more privacy, seclusion and security than a male child. Therefore, in fact the female child's requirement will be much greater than the requirement of a male child. The learned counsel for the appellant referred to PLD 1976 Kar. 1231; 1980 SCMR 975; 1978 SCMR 89; 1975 SCMR 517; PLD 1979 Lah. 382; PLD 1967 Kar. 437 and contended that in all these cases it is the requirement of the male child which has been taken into consideration. In all these authorities and such proposition of law has been laid down as contended by the learned counsel for the appellant.
11. He contended that in all these cases the need of male child was pressed, and therefore, it seems that the law recognizes the heed of male child only. The argument advanced by the learned counsel is most amusing and starling. In all these cases the landlord had filed ejectment proceedings for the requirement of their male child therefore, it does not mean that the law does not recognize the bona fide requirement of female child. The contention is completely misconceived and devoid of any reason. The respondent has established her bona fide need and requirement and that of her children. The order of the learned Controller, therefore, cannot be disturbed.
12. ' Mr. Siddiqui, the learned counsel for the respondent stated that the finding of the learned Controller on the ground of default is incorrect. In the facts and circumstances of the case the learned Control ler has exercised his discretion in favour of the appellant and I would not like to disturb it.
13. ' The appeal is, therefore, dismissed. The appellant should vacate and handover vacant possession to the respondent on or before 31-3-1985.