1. ' The appellant Shahnawaz Thallo is tenant of the respondent Shaikh Muhammad Saleem, occupying house No, 307/16, Federal '13' Area, Karachi. The respondent after retirement from active service of Pakistan Air Force joined the same service as a civilian clerk and is said to be still working in that capacity. After declaration of Martial Law the respondent moved the Summary Military Court through his Officer Commanding for eviction of the appellant from the disputed house. His application was entertained under M. L.
0. 20 and ultimately the appellant was directed by the Military Court to vacate the said premises by 15th December, 1977. Aggrieved by this order, the appellant filed a writ petition No, 895/77 which was subsequently converted as First Appeal under the Sind Urban Rent Restrict ion Ordinance, 1959, and re-numbered as First Appeal No, 120/81. This appeal was disposed by a consent order dated 20th October, 1981 which is to the following effect :- "Mr. Munawar Abbas states that the appellant was not allowed to file his defence and cross- examine the respondent/landlord. Mr. Saleem lqbal concedes this position. I, therefore, by consent pass the following order :--
(1) That the appellant will file his written statement within 15 days from today.
(2) The respondent/landlord will file hi$ affidavit in proof of his case within 14 days thereafter.
(3) The Controller from that stage will proceed according to the provisions of the Sind Rented Premises Ordinance, 1979, and dispose of this case within three months. The case will be heard by Controller within whose jurisdiction the disputed premises fall.
2. ' The parties shall appear before the Senior Civil Judge VI and Controller on 4th November, 1981, when the respondent will file his application which will be registered as a case and the appellant will file his written statement. A copy of this order be sent to the lower Court within three days. The Controller shall pass order of tentative rent on the same date. I may record that a copy of this application has been delivered to the counsel for the appellant in Court today."
3. ' In pursuance of this order, the respondent submitted fresh application for ejectment and after both the parties led their evidence by filing affidavits the learned VI Senior Civil Judge and Controller by his order dated 8th February, 1982 allowed the respondent's application for ejectment, directing the appellant to hand over vacant possession to the respondent within ninety days of the order. The present appeal (No, 267/82) is directed against this order.
4. ' When the case was called for hearing today, only Mr. Muhammad Ahmed, learned counsel for the appellant, was present. Both the respondents and his counsel Mr. Zafar Javed were absent. It appears that the learned counsel for the respondent had remained absent even on two previous dates of hearing (1. e. 10th May, 1982 and 18th May, 1982). However by order dated 8th May. 1982, the appeal was treated as urgent and was ordered to be heard on 10th May, 1982. In view of this order it was not considered fit and proper to postpone the hearing again for the same reason namely the absence of the respondent and his counsel. Accordingly the case was allowed to proceed and Mr. Muhammad Ahmed the learned counsel for the appellant was heard in support of the appeal.
5. ' The first contention of Mr. Muhammad Ahmed was that the learned Controller who was required to proceed strictly in accordance with the consent order passed by this Court, allowed the respondent to file fresh application totally different from his original application submitted before the Military Court and thereby violated the order. It is of course undisputed that the fresh application filed by the respondent is not in verbatim the same as the original application filed before the Summary Military Court. But the important point for consideration is whether in the new application any material or substantial deviation has been made by the respondent from his earlier version. When the learned counsel for the appellant was asked to point out any such deviation, he was unable to do so. However he conceded that as in the original application, the respondent's plea in the new application is that he had retired from active military service and that he needed the house for his personal bona fide use. Even perusal of the two applications does not disclose any material conflict or contradiction in respect of either the factual background of the case or the pleas raised by the respondent. It is the substance rather than the form of the new application which will be the determining factor. Since both the applications in substance are not different, the grievance of the learned counsel in this behalf is untenable. I am unable to agree with the view that the learned Controller has not complied with the consent order of this Court or that he has in any way disobeyed it, ' The learned counsel for the appellant further submitted that the learned Controller treated the case to have been filed under section 14 of the Sind Rented Premises Ordinance, 1979, but the mandatory notice of sixty days laid down in that section was not given by the landlord to the tenant for vacating the tenement before approaching the Controller for the relief and consequently the impugned order was bad in law. It is true that while discussing the issue No, 2 learned Controller has stated in his order : "as the applicant has retired and as such has required the premises for his personal use hence the substance of his application attracts provisions of section 14." It would however appear that the respondent himself has not availed the benefit of Summary Procedure provided in section 14 in his fresh application filed before the Controller. His case would not fall within purview of that section merely because he has mentioned in his ejectment application that he was an employee of Pakistan Air Force and had retired from that service on 15th October, 1972.
6. He has therefore not required to fulfil the condition of mandatory notice unless he had specifically invoked section 14 for the desired relief. The fact of his retirement from Air Force was mentioned by the respondent even in his original application filed before the Summary Military Court when the present law namely, the Sind Rented Premises Ordinance, 1981, which carries section 14 was nowhere in sight. The new law was promulgated long after the filing of the respondent's first application. Despite his observations in the earlier part of his judgment referred to above, the learned Controller, has not been serious in treating the case to be of section 14 or disposing it as such. This is clear from his observations given in the end of the impugned judgment : "Such being the case even if the provisions of section 14 are not invoked which are specifically meant for seeking ejectment on the ground of retirement etc., it is otherwise fit case in which the ejectment can be allowed under section 15 of the Ordinance on the ground of bona fide personal requirement. The application is therefore allowed, the opponent shall hand over vacant possession to the applicant within a period of 90 days."
7. ' The last contention of the learned counsel for the appellant was that the respondent being still in service of the P. A. F. As a civil clerk he is living in Government quarter and therefore his plea that he requires the house in dispute for his bona fide personal use has no force. This aspect of the case has been fully taken care of by the learned Controller. He ha noted in his judgment : that the respondent has already retired from active service, that he has nine children, six of them are sons and three are daughters, that from his four sons who are employed in Pakistan Air Force, only one who is married has been allotted a quarter, that the respondent too is sharing the quarter with his son, that unmarried employees of the P. A. F. Are not entitled to quarter which means the remaining sons of the respondent are without accommodation and that his son who is working in Steel Mill is also unmarried and has no official accommodation. In view of this position the learned Controller has come to the conclusion that the respondent needs the house for bona fide personal use of his big family and also for himself particularly when he has no other house in the locality. This stands unrebutted. I see no reason to disturb this finding of fact arrived at by the learned Controller.
8. ' As a result of above discussion the appeal is dismissed with no order as to costs. The appellant is allowed three months time to vacate the disputed premises and hand over possession thereof to the respondent.