P L D 1963 (W (PLP)

WAHIUDDIN AHMED, J.‑This is a regular first appeal against the order of the learned District Judge, Karachi in Suit No. 118 of 1962 dated the 13th of October 1962, rejecting the appellant's plaint under Order VII, rule 11 (d), C. P. C. It has arisen in the following circumstances

2. The dispute between the parties is in respect of tenement bearing old No. 63/9 J.M. 3, present No. 560, Jamshed Quarters, Catholic Colony No. 2, Dadabhoy Naoroji Road, Karachi. The premises in dispute belongs to respondent No. 2 who is alleged to hold the same for the use and benefit of respondent No. 1, namely St. Philomena's Church, which is occupied by the appellant as a tenant on a monthly rent of Rs. 105 since 1947. The respondents, on the basis of an ejectment certificate granted in Revision No. 113 of 1961 by the learned Chief Judge, Small Causes Court, filed in the Small Causes Court, Karachi, Ejection Application No. 24 of 1962 against the appellant. This applica tion was granted by the learned Court on the 12th of May 1962. On the 18th of May 1962, a writ of ejectment was also issued by the learned Chief Judge, Small Causes Court.

3. On the 22nd of may 1962 the appellant moved the Karachi Small Causes Court under section 24 of the Karachi Small Causes Court Act for the stay of the execution. The learned Chief Judge, Small Causes Court granted stay on furnishing two sureties in the sum of Rs. 1,000 each within two weeks and filing of suit within three weeks. Time for furnishing sureties and filing the suit was extended by an order dated the 5th of June 1962. In pursuance of this order the appellant furnished two sureties of Rs. 1,000 each on the 5th of June 1962, along with two pay orders of Rs. 1,000 each drawn in the name of the Chief Judge, Small Causes Court, before the Court. On the 6th of July 1962, the learned Judge, Small Causes Court extended the time for filing the suit under section 24 of the Karachi Small Causes Court Act till the 16th of July 1962.

4. Consequently on the 14th of July 1962, the appellant filed Suit No. 118 of 1962, for compensation in the Court of the learned District Judge, Karachi on the ground that the respondents have committed trespass within the meaning of sections 23 and 24 of the Karachi Small Causes Court Act and claimed compensation in terms of section 24 of the said enactment. In this suit on the 24th of August 1962, the respondents filed an application under Order VII, rule 11, C. P. C. praying for the rejection of the plaint on the ground that the appellant has not complied with the Small Causes Court's order passed under section 24 of the Karachi Small Causes Court Act, and there is no right to file a suit under the said provision of law.

5. This application was hotly contested and the learned District Judge by order dated the 13th of October 1962, allowed the application and rejected the plaint under Order VII, rule 11(d), C. P. C. The material observations of the learned subordinate Court are reproduced below :‑ " The wordings of section 24 are very clear and lay down that stay is to be granted if the applicant has filed the suit and has also furnished two sureties, who have executed the bond agreeing to pay all the costs of the proposed suit. In the instant case, two cash securities of Rs. 1,000 each were furnished instead of sureties, but no bond has been executed. This would amount to mere deposit of money and not to furnishing of sureties "as no bond has been executed" thus the suit has been filed in violation of the provisions of section 24, which are mandatory and as such it is barred under clause (d) of Order V II, rule 11, C. P. C. The plaint is accordingly rejected." It would thus be noticed that the learned District Judge has rejected the plaint mainly on the ground that the appellant did not comply with the order of the learned Chief Judge, Small Causes Court, granting stay of the proceedings under section 24 of the Karachi Small Causes Court Act.

6. Mr. Nusrat, the learned counsel for the appellant, has urged before us that the learned Subordinate Court was not com petent to reject the plaint on the grounds raised before him. The learned counsel took us through the relevant provisions of the Karachi Small Causes Court Act : namely sections 18, 19, 20, 21, 22, 23, 24 and

26. These provisions of law are in Chapter V of the said enactment. The scheme of the Act provides a summary procedure by which a landlord may obtain possession of the premises in occupation of a tenant provided conditions requisite for instituting an application are fulfilled. Under section 18, if the property in dispute is situated within the limits of the Small Causes Court's jurisdiction and whose annual rental value does not exceed Rs. 2,000 and the person against whom the petition is made is either a tenant or a licencee and that person's tenancy or licence has been determined, it is open to the applicant to ask for summons against the occupant calling upon him to show cause why he should not be compelled to deliver up the property. Section 19 lays down how such summons shall be served upon the occupant. Section 201ays down "If the occupant does not appear at the time appointed and show cause to the contrary, the applicant shall, if the Court is satisfied that he is entitled to apply under section 18, be entitled to an order addressed to a bailiff of the Court directing him to give possession of the property to the applicant on such day as the Court thinks fit to name in such order." Section 21 gives protection to the Judge or officer of the Court by whom any such order as aforesaid was issued or against any bailiff or other person by whom the sale was executed, or by whom any such summons as aforesaid was served, for the issue, execution or service of any such order or summons on the ground that the applicant was not entitled to the possession of the property. Section 22 is not very material for the purposes of this case. Section 23 is the important provision of law. It provides as under :‑ "Nothing herein contained shall be deemed to protect any appli cant obtaining possession of any property under this Chapter from a suit by any person deeming himself aggrieved thereby, when such applicant was not at the time of applying for such order as aforesaid entitled to the possession of such property. And when the applicant was not, at the time of applying for any such order as aforesaid, entitled to the possession of such property, the application for such order, though no possession is taken thereunder, shall be deemed to be an act of trespass committed by the applicant against the occupant." Then comes section 24 which has an important bearing on the decision of this case and is reproduced below:‑ "Whenever on an application being made under section 18 the occupant binds himself, with two sureties, in a bond for such amount as the Court thinks reasonable, having regard to the value of the property and the probable costs of the suit next hereinafter mentioned, to institute without delay a suit in the Chief Court against the applicant, for compensation for trespass and to pay all the costs of such suit in case he does not prosecute the same or in case judgment therein is given for the applicant, the ‑Court shall stay the proceedings on such application until such suit is disposed of. If the occupant obtains a decree in any such suit against the applicant, such decree shall supersede the order, if any, made under section 20." It is quite clear from this provision of law that before possession of the premises in dispute is taken by the landlord, it is open to the occupant to move the Karachi Small Causes Court for stay of the proceedings by offering to bind himself with two sureties and a bond as the Court thinks reasonable, having regard to the value of the property and the probable costs of the suit, and on an undertaking that he would institute a suit without delay in a Court of competent jurisdiction for compensation ; and further undertaking to pay all the costs of such suit in case he does not prosecute the same or in case judgment therein is given for the applicant. On such an application the Karachi Small Causes Court is bound to stay further proceedings till a decision is taken in the suit filed by the occupant. Under the second paragraph of this section, if the occupant obtains a decree in any such suit against the landlord, such decree shall suprsede the order, if any, made under section 20 of the Karachi Small Causes Court Act.

7. After going through the scheme of this enactment it is abundantly clear that the question whether the proceedings should be stayed under section 24 or not is exclusively within the juris diction of the Karachi Small Causes Court. It is for that Court to decide in what sum the surety should be furnished, by what' time the suit should be filed and no outside agency, however, high it may be in its authority, has anything to do with the discretion and the jurisdiction which vest in this respect in the Court concerned. It was admitted by the learned counsel for the parties that the sureties furnished by the appellant were accepted by the learned Chief Judge, Small Causes Court and the proceed ings were stayed by him and the appellant was permitted to file the suit under section 24 of the Karachi Small Causes Court Act till the 16th of July 1962.

8. The learned Subordinate Court has not rejected the plaint before it on the ground that it was filed after the time fixed by the Karachi Small Causes Court but simply on the ground that the sureties furnished before it were not in compliance with the order passed by the Karachi Small Causes Court on the 22nd of May 1962.

9. The question arises whether the learned Subordinate Court was competent to reject the plaint on this ground. The provision applied by the learned subordinate Court is Order VII, rule 11 (d), C. P. C., which is reproduced below :‑ "R.

11. The plaint shall be rejected in the following cases :‑ (d) where the suit appears from the statement in the plaint to be barred by any law." According to the above‑mentioned provision of law the learned District Judge was competent to reject the plaint if the suit was barred by any law. It is quite correct that the scope of the suit filed under section 24 of the Karachi Small Causes Court Act is very limited, but the only issue involved in such cases is whether the defendant has committed any trespass and the plain tiff is entitled to claim any compensation on that account. The parties are, therefore, confined only to establish or negative this limited question. There is also no doubt that if a party files a suit under section 24 of the Karachi Small Causes Court Act without making an application under section 24 for stay of proceedings, and after complying with its other provisions, the regular Civil Court would be fully justified in dismissing that suit on the ground that it was not filed in pursuance of that provision of law, but such is not the position in the present case.

10. In the present case the learned District Judge has gone a little further than this. He has considered the propriety of the order passed by the Chief Judge, Small Causes Court and has invested himself with the power of supervisory jurisdiction which certainly is not vested in him. Under section 35 of the Karachi Small Causes Court Act any order of the Karachi Small Causes Court is final and conclusive. The supervisory jurisdiction is vested in the High Court under section 32 of the said enactment. The question, therefore, whether the Chief Judge, Karachi Small Causes Court granted the stay of the proceedings before him and permitted the insti tution of the suit not in accordance with the conditions laid down in it could not be scrutinised by the learned District Judge in a regular suit and could only be revised by the High Court under section 32 of the said enactment.

11. Moreover it would be seen that the appellant made certain allegations in the plaint which for purposes of deciding an application under Order VII, rule 11 are to be taken as correct. The appellant made the following allegations in paras. 14 and 15 of the plaint. "

14. That the plaintiff has furnished the two required sureties in the sum of Rs. 1,000 each, in cash on 5‑6‑1962, and the plaintiff was permitted to file suit up to 16‑7‑1962.

15. That the order of the learned Chief Judge, Small Causes Court, Karachi dated 2‑12‑1961, was materially wrong, bad in law and rather based on sentiments rather a judicial order. The learned Chief Judge did not appreciate the facts on the record." It is on these allegations that the question of rejecting the plaint under Order VII, rule 11 was to be decided.

12. Mr. Fonseca, the learned counsel for the respondents, has urged before us that as long as the provisions of section 24 of the Karachi Small Causes Court Act are not fully complied with no suit can be filed under it in a regular Civil Court. This contention has no force. Mr. Fonseca further urged that the learned Chief Judge, Small Causes Court, was not competent to extend the period for filing the suit. He also urged that the Karachi Small Causes Court Act has been repealed and after the repeal of this enactment no power was left with the Court concerned to extend the period fixed by it for doing certain acts. Both these contentions have also no force. According to the repeal clause it is clearly provided that in all pending proceedings the Karachi Small Causes Court will exercise the same power as was vested in it under the Karachi Small Causes Court Act. As already observed the question whether the learned Chief Judge, Small Causes Court was justified in extending the time or had jurisdiction to extend the time could only be raised before that Court. If that Court had arrived at a wrong conclusion it was open to the respondents to challenge it before the High Court in revision under section 32 of the Karachi Small Causes Court Act, but this procedure was not adopted. In passing, however, it may be mentioned that in the case of Barjiwandas Gujrati v. Mohini Mohan Shah (A I R 1956 Cal. 425) a similar question arose before the Division Bench of the Calcutta High Court. In that case also the order under section 43 fixing date for delivery of possession was extended from time to time. Section 43 of the Presidency Small Causes Courts Act is almost in identical terms as section 20 of our enactment. It was held in that case that section 148 of the C. P. C. also applied to the proceedings before the Court of Small Causes which had power to vary or extend the order namely the order for possession under section 43 of the Presidency Small Causes Court Act.

13. After going through the judgment of the learned Sub ordinate Court and the relevant provisions applicable in the present case it is quite obvious to us that the suit filed before the learned Subordinate Court was not barred by any provision of law. The ground on which the plaint has been rejected has no material bearing on the provisions of Order VII, rule 11, C. P. C., and the learned Subordinate Judge has fallen into an error in that respect. We would, therefore, set aside the order rejecting the plaint and remand the case for decision on merits.

14. In the result, the appeal is allowed with no order as to costs. K. B. A. Appeal allowed.