P L D 1959 (W (PLP)

‑Pleader and client‑Pleader's duty. It is the duty of an advocate appearing for a party to remain firm when he is of the view that the step that he is taking is neces sary in the interest of advancing his client's case. Liaqatullah Qureshi for Appellant. S. S. Raza for Respondent. Date of hearing : 14th September 1959. The petitioner before me, Abdul Razaq, was the Pesh Imam of a mosque situated in Asif Colony on Manghopir Road, from which position he seems to have been removed by the opposite party who claimed to be the Mutawalli and President of the registered society, on whose behalf the rent was claimed. An application was made by the society through the Mutawalli under section 27 of the Karachi Small Causes Court Act for a distress warrant for the recovery of rent against the present peti tioner. Before this application was made in the Small Causes Court, there was a written demand by the society upon the peti tioner which was replied to by the petitioner by an advocate's letter, wherein he had repudiated his liability to pay any rent. The petitioner when he appeared in the Small Causes Court also filed objection and repudiated the claim of the society to recover rent as also his liability to pay the same. He asserted that the structure had really been put up by him. The case came up for evidence on 15‑12‑56, when Haji Ibrahim, the President of the society, gave evidence for the applicant and the petitioner (in this Court) Abdul Razaq gave evidence for himself. Thereafter an application was made by Abdul Razaq on 22‑12‑56 for summoning seven witnesses. On this application, an order was passed on 6‑4‑57 to the effect that Mr. Qureshi withdraw this application. On 19‑7‑57, the learned Chief Judge of the Small Causes Court passed an order whereby he allowed the application of the society for the recovery of rent as it was prayed by them in their application for distress warrant. It is against this order that Abdul Razaq has filed this petition in revision under section 32 of the Karachi Small Causes Court Act. Mr. Liaqatullah Qureshi, the learned advocate for the applicant has, in the first instance, argued before me that in this case as there was a denial of title by the so‑called tenant Abdul Razaq which denial was contained in his reply to the notice of demand the proper remedy for the society was to file a regular suit and note to resort to a summary proceeding of distress warrant. I cannot agree with this proposition, because if a claim is made under section 27 the Court has jurisdiction to investigate that claim for the limited purpose of either granting or rejecting the distress warrant application. It is quite true that these are summary pro ceedings and it would be open for either party to file a regular civil suit on the question of title and any decision by the Small Causes Court arrived at in the summary proceedings would be subject to the decision of a title suit. But until that is done, the Small Causes Court is not precluded of its jurisdiction to allow the recovery by distress warrant merely upon a denial of title by the occupant or the tenant. The next point argued by Mr. Qureshi was that in this case no tenancy was proved, nor was there proof of payment of previous rent by the petitioner Abdul Razaq to the society. With regard to the question of tenancy there is the finding of the Small Causes Court Judge against the petitioner which is purely a finding of fact and I cannot see any reason why I should set it aside particularly in the exercise of powers under section 32 of the Karachi Small Causes Court Act. With regard to the question that no rent was paid previously the short answer is that section 27 does not require any such pre‑requisite. Section 27 entitles a person to move the Court for a distress warrant if he claims to be entitled to any arrears of rent of a house or premises situate within the local limits of the Court's‑jurisdiction. It may well be noted that the section does not even expressly state that it is only the landlord who can make such an application. All that section 27 says is "any person claiming to be entitled to arrears of rent". If therefore the society was entitled to claim arrears of rent it would be entitled to make an application without having to prove that there had been any payment of rent before the making of the application. The third point raised by Mr. Qureshi is of greater difficulty. He complains that he had made an application for summoning seven witnesses and was induced to withdraw this application upon the assurance of the learned Judge of the lower Court that it was not necessary for him to summon these witnesses. It may however be noted that on 15th December 1956, when both the applicant and the opponent entered the witness box the petitioner Abdul Razaq had not summoned any witness nor had he kept anyone in attendance. It is quite true that on 22nd December an application was moved by him to examine seven witnesses but unfortunately all that we have on record is the order of the Small Causes Judge who says: "Heard Mr. Liaqatullah Qureshi for the applicant. He with draws his application." There is nothing in the order to show that this application was withdrawn on the ground that the Judge had advised that it was not necessary and if I may say so it is not the business of a Judge to, advise a party before him as to whether any witness is to be examined or not, pr whether it is necessary for him to examine or not to examine any witnesses. If an application is made before him for summoning a Government servant or servants employed in public bodies as was the case here, he has to decide the appli cation on merits. But in this case, as I have said, the record shows that this application was withdrawn by the counsel for Abdul Razaq. There is nothing in the order to suggest why it was with drawn. It is the duty of an advocate appearing for a party to remain firm when he is of the view that the step that he is taking is necessary in the interest of advancing his client's case. If, there fore, an application for summoning witnesses is withdrawn without anything to show in the order as to the reason thereof, it would not be a proper case for the High Court to interfere. For these reasons, I dismiss the revision application with costs. The petitioner if he considers that the society has no title to the property, it is open to him, if he is so advised, to go and file a regular civil suit. The stay order is discharged. K. B. A. Application dismissed.