' On 14th March, 1972 the respondents filed a petition for the eviction of the appellant from the residential premises consisting of first floor comprising of property No, SE.33-R-15, Montgomery Road, Lahore. In the petition for eviction the grounds for eviction were default in the payment of rent from the date of service of the notice dated 3rd September, 1971 as well as the damage to the property. The appellant contested this petition and it was specifically stated in the written reply that the entire rent had been paid by the appellant and the allegation of damage to the property was denied. Asif Naveed respondent No. 1 had issued the receipts who had by that time left for England. On 29th May, 1975 the appellant had summoned for witnesses in order to prove the receipts purported to have been signed by the respondent. Summons served on the witnesses, namely, Ghazanafar Hussain Jafari, Hadayat Ullah, Zulfiqar and Saeed Akhtar are at pages 129, 131, 133 and 135 of the file of the learned Rent Controller. On 29th May, 1975 in spite of the fact that the witnesses had been served for that day the case was for the first time called at 8-15 a. m.; the case was recalled at 9-25 and the evidence of the appellant was closed at 9.45 a. m. The case was thereafter adjourned to 21st June, 1975 for the evidence of the respondents. The Rent Controller holding that the appellant was a defaulter accepted the petition for eviction vide his order dated 29th May, 1976 by deciding the issue relating to default in favour of the appellant and Issue No, 2 regarding the damage in his favour. The appellant filed an appeal and raised the specific contention that no adequate opportunity had been provided to the appellant as his evidence had been closed without any sufficient cause. It was further urged that the findings of the learned trial Court that the appellant had committed default in the payment of rent from 3rd September, 1971 to September 1972 was based on no evidence. The learned Additional District Judge, Lahore instead of deciding the point in issue condemned the appellant on the ground that the appellant was not vigilant in prosecuting his case and this he inferred from his case having been once dismissed for non-prosecution which was ultimately to be re-admitted. It was further observed that the main ground which was being urged had not found favour in an earlier appeal dismissed on 10th December, 1975 and it was not maintainable as the order was passed under subsection (6) of section 13 of the Ordinance. The earlier appeal had no relevancy because the appeal in which the order had been passed was against the order of the Rent Controller, dated 29th May, 1976 decided on merits. From the perusal of the record it appears that the appellant had not been afforded adequate opportunity and his evidence was closed in spite of the fact that for witnesses had been served for that date but closed the defence at 9-45 a. m. The learned Additional District Judge has not at all adverted to the real point of controversy. The earlier appeal said to have been dismissed on 10th December, 1975 had nothing to do with the merits.
2. The name of the learned counsel for the respondents had appeared in the cause list. The case was called out several times but neither the learned counsel nor any person on behalf of the respondents appeared for the whole day, and as such, the arguments had been heard ex carte.
3. In view of the above discussion this appeal is accepted ; the order of the learned Additional District Judge, Lahore, dated 31st March, 1977 and that of the learned Rent Controller, Lahore, dated 29th May, 1976 are set aside and the case is remitted to the learned Rent Controller, Lahore for fresh decision after providing adequate opportunity to the appellant to produce his evidence and to prove the receipts. Since the respondents have not come to contest this appeal there will be no order as to costs.