P L D 1961 (W (PLP)

This revision application is directed against the order of Mr. Ghulam Hussain A. Shaikh, Chief Judge, Karachi Small Causes Court, in Ejectment Application No. 376 of 1959, dated 25th July 1960 refusing to set aside an ex parte order for possession under section 18 of the Karachi Small Causes Court Act and further holding that the petitioner's application dated 21st May 1960 is misconceived. Opponent Mst. Shakila Begum filed Ejectment Application No. 376 of 1959 against the petitioner in respect of a quarter constructed on plot No. 301-A Block No. 3, Lalukhet, Karachi, on the ground that he is in occupation of these premises as a licensee and as the permission to occupy the house has been withdrawn an order for his ejectment may be passed under section 18 of the Karachi Small Causes Court Act. The learned Chief Judge, Small Causes Court, on .14th January 1960, passed an ex parse order for ejectment of the petitioner from the premises in dispute. Thereupon the petitioner on 19th May 1960 made an application for the setting aside of the ex parte order on the ground that the summons of the ejectment application was not served on him under Order IX, rule 13 and also moved another application for restoration of possession under Order XXI, rules 100 and 101 of the C. P. C. The learned Subordinate Judge, after hearing the parties, passed the following order on 25th July 1960: Perused affidavit. Also considered arguments. This applica tion is misconceived. This Court cannot be competent to put back the opponent in possession or compensate. Hence dismissed." It would thus appear that the learned Subordinate Judge is of the view that no application lies for the setting aside of an ex parse order passed under section 1:8 of the Karachi Small Causes Court Act and that he was also not competent in case the application succeeds to restore possession of the premises in dispute to the petitioner. Mr. Riaz Hashmi, the learned counsel for the applicant has attacked. the impugned order and urged before me that the view of the learned Subordinate Judge in this respect is unwarranted and the court concerned was fully competent to entertain the application for setting aside the ex parte order for ejectment and to restore possession of the premises in dispute if the petitioner succeeds in his application for setting aside the ex parte order. Reliance in this connection is placed on two decisions Bibee Tulsiman and others v. Harihar Mahato and others (9 C W N 81) and Tyeb Beg Mahomed v. Allibhai Mangalji (I L 31 Bom. 45). In the first case the learned Judges of the Calcutta High Court held that a Court has an inherent power to deal with an application to set aside an order made ex parte and to set it aside upon a proper case being substantiated. This case, however, does not arise out of any Small Cause Court matter and therefore can be distinguished. But the second case of the Bombay High Court dealt with an identical matter. In that case also an ejectment order was obtained by the landlord under section 41 of the Presidency Small Cause Court Act and the application for the setting aside of the ex parte order was not entertained by the Presidency Small Cause Court Judge on the ground that it was not maintainable. The Division Bench of the Bombay High Court repelled this view and held that such an application was competent and remanded the case back for dealing with the application according to law. Jenkins, C. J., in this connection observed as under: "This last opinion is in direct opposition to the ruling of the Full Bench of the Calcutta High Court in Bibi Tulsiman v. Harihar Vahato 9 C W N 81, where it was held in reference to a Subordinate Judge that the Court has an inherent power to deal with an application to set aside an order made ex parte and to set it aside upon a proper cause being substantiated. In our opinion that view is correct and the learned Judge was in error so far as his third reason goes. We think, too, that it is erroneous to suppose that section 108 of the Code of Civil Procedure has no application to proceedings under Chapter VII of the Presidency Small Causes Courts Act. It is quite true that it has not a direct application, because proceedings under Chapter VII are not a suit, nor is an adjudication in the proceedings, a decree. But having regard not only to section 647 of the Code of Civil Procedure but also to section 48 of the Presidency Small Cause Courts' Act and also to the decision of the Full Bench of the Calcutta High Court, we feel no doubt that the Judge had power to set aside the ex-paste order." But this decision was under the old Civil Procedure Code. Section 647 and section 108 of the old Civil Procedure Code are now section 141 and Order IX, rule 13 respectively of the present Civil Procedure Code. At that time there was no such provision as section 151 C. P. C., and, if the Bombay High Court could take this view without section 151, C. P. C., I a see no reason why it cannot be applied to the present case on the new provision of law which invests the civil Courts with inherent power to make such order as may be necessary for the ends of justice or to prevent abuse of the process of the Court. It will be convenient to mention here that under section 29 of the Karachi Small Causes Court Act all the provisions of the Civil Procedure Code are applicable to proceedings before the Small Causes Court with certain A exceptions but neither section 151 nor section 141 and Order IX, rule 13, C. P. C., are excluded from its purview. In this sub-continent, provisions of Order IX, rule 9 and Order IX, rule 13, C. P. C., have been applied by the High Courts read with section 141, C. P. C., in probate and other original proceedings where the provisions of the Civil Procedure Code have not been specifically applied. If that is so, this case stands on a much strogner ground, in view of section 29 of the Karachi Small Causes Court Act. Having regard to the provisons of section 141 and Order IX, rule 13, C. P. C., I am clearly of the view that the learned Chief Judge, Small Causes Court, is fully competent to entertain an application for setting aside ex parte ejectment order. But even if some doubt is entertained in this respect, his power to entertain such applications under section 151, C. P. C., cannot be disputed. Because after all, if a party to any proceedings has abused the process of the Court in so far as he managed to obtain an ex paste order without service of the summons on the other, party, there cannot be ,a stronger case than that for the exercise of inherent power vested in a Court under section 151, C. P. C. In my view the learned Chief Judge, Small -Causes Court, erroneously refused to exercise jurisdiction vested in him and the grievance of the petitioner on this account is well-founded. But Mr. Faizanul Haq, the learned Counsel for the opponent has urged before me that even if the petition for setting aside the ex parte order is maintainable, it is liable to be dismissed because the petitioner failed to give security to the satisfaction of the Court for the purposes of the decree or compliance with the judgment as required under section 29 (3) of the Karachi Small Causes Court Act. This objection was not taken by the opponent before the learned Chief Judge, Small Causes Court, but since it is a legal question I have allowed the learned Counsel for the opponent to raise it before me. This objec tion also appears to be without any force. Section 29 (3) applies only to those cases where an application for setting aside a decree is made. The view both of the Bombay High Court and of the Chief Court of Sind is that proceedings under section 18 of the Karachi Small Causes Court Act are not in a suit and the order for possession is not in the nature of a decree. In Chetandas Rupchand Valecha v. Jethanand Chuharmal and another (A I R 1944 Sind 215), Davis, C.J., in this connection observed as under "It does appear that in the Karachi Small Causes Court there is a practice whereby when an order is passed under section 20, thereafter if possession is not given, an execution application is made, such as is to be found at p. 7 of the paper book, and it may be argued that although this is a convenient procedure, it is a superfluous procedure under section

20. Section 2 contemplates the order of the Court addressed to the bailiff to be executed without any further application on the part of the applicant. But where, as in this case, the applicant, in these proceedings the occupant, applied to the Court and asked the Court for further time, and the Court upon that further application directs a writ for ejectment to issue, but postpones its execution for a further fortnight as a result of a concession by the landlord, under section 20, we do not think that this can be considered anything more than the execution of the order for recovery of the possession already passed under section 20 on the 24th July previously." Thus the proceedings under section 18 and the order under section 20 of the Karachi Small Causes Court Act being not in the nature of a suit and decree, the provisions of section 29 (3) cannot be applied. This objection therefore also fails. In the result the revision application is allowed, and the case is remanded back to the learned Chief Judge, Small Causes Court, for deciding the application of the petitioner on merits. The costs in this application will follow the final decision on the petitioner's application in the Court below. S. B. Case remanded.