1. The appellant's defence in this case was struck of and he was ordered to be evicted from the premises in his occupation for non-deposit of rent for the period from September, 1976 to July, 1977.
2. By the Rent Controller, on 16th February, 1978. In reply to the application of respondent under section 13 (6) the appellant denied that they committed any default. On "3rd January, 1978 they made an application to Rent Controller alleging that rent was used to be deposited by them through their counsel Messrs Noorul Arfin & Co. Who are holding the receipts for deposits made by them on their behalf and requested that they may be allowed to lead evidence by summoning their Advocate in the case. The application for summoning the evidence was opposed by the respondent and after hearing the parties the Rent Controller, rejected the application of appellant and ordered their eviction from the premises holding them a defaulter in view of the report of Nazir of the Court. The first appellate authority agreed with the Rent Controller that the appellant was a defaulter and the contention of the appellant that their application for summoning the evidence in the case was improperly rejected by the Controller was not considered at all.
3. The learned counsel for the appellant contended before me that before foreclosing the issue of default, the Rent Controller ought to have allowed the appellant to lead evidence in support of their contention that the default was not wilful and deliberate. It is contended that the rejection of the application for summoning witness by the Rent Controller in the circumstances of the case was improper and arbitrary and amount--ed to denial of opportunity to defend, to the appellant before the Rent Controller. The learned counsel for the respondent on the other hand contended that even if the appellant were allowed to lead evidence it would not have made any difference in the present case as the report of Nazir positively shows that no deposit wag made for the period from September, 1976 to July, 1977. The learned counsel for the respondent in support of his contention relied upon the case Municipal Committee, Gujranwala v. Barkat Bitii (1979 SCMR 264). In the case cited by the .Learned counsel it does not appear that any prayer was made by the tenant before the Rent Controller to summon and examine witnesses in support of his contention that no default was committed by him. On the contrary the Court found that necessary enquiry was held by the Controller before striking of the defence of tenant. The facts of the present case are quite distinguishable as the appellants had made specific prayer for summon--ing the Advocate alleging that the rent used to be paid through them and that they are holding receipt for the same What would have been the result of such an evidence cannot be pre-determined. I am in no doubt that in a case where default is alleged under section 13 (6) of the Ordi--nance against tenant ; the Controller is bound to hold an enquiry before foreclosing the issue of default and in this regard if the tenant makes an application for examining certain witness on the issue such a prayer by the tenant cannot be lightly rejected by the Controller unless it is found that the prayer was made frivolously or with the sole aim and object to protracting and delaying the proceedings. In the circumstances of the case before me the rejection of the application of appellant to summon the witness was not proper as it is neither shown to be frivolous nor it is shown to have been filed with the object of delaying or protracting the proceedings. The first .Appellate authority while agreeing with the Controller did not apply its mind to this aspect of the case. I accordingly accept this appeal, set aside the impugned orders of Rent Controller and the first appellate authority and remand the case back to the Rent Controller for deciding the application of respondent under section 13 (6) afresh in accordance with the law after giving proper opportunity to the appellant to defend the case. Mr. Muhammad Ali Jan, states that since the rent case was instituted in 1974 a time limit may be fixed in the case for decision by the Rent Controller. In the circumstances of the case I direct that the Rent Controller shall decide the application under section 13 (6) of the Ordinance within 1 J months on receipt of R and t' in the case. There will be no order as to costs.