P L D 1963 (W (PLP)

Mahmood Hussain for Respondent. Date of hearing: 22nd March 1963. This revision petition has arisen out of an order passed by the Additional District Judge, Karachi, in his capacity as Judge of Small Causes Court, Karachi, directing that the proceedings taken by the petitioner under section 27 of the Karachi Small Causes Court Act for the recovery of rent from Laiq Ahmad, respondent, be stayed to await a decision of a civil suit which had been filed by the petitioner to establish his title to the property in dispute.

2. When the case was heard by the trial Court, it was contended that Laiq Ahmad, respondent, was a minor, but no such objection is now being raised, because it is admitted that Laiq Ahmad, respondent, is no longer a minor.

3. The petitioner's suit for declaration of title of the property in dispute was based on the ground that he had constructed this property and had afterwards, agreed to sell it to the respondent, but the agreement of sale was, subsequently, cancelled and part of the purchase price paid to him was returned. The correctness of these allegations is disputed by the respondent, but for the purpose of decision of the present revision petition it is not necessary to go into these matters. The contention of the petitioner's counsel is that as in the application under section 27 of the Karachi Small Causes Court Act the Court was required only to decide as to whether the respondent was holding the property as tenant under the petitioner, the proceedings should not have been stayed to await the result of the civil suit in which the petitioner has sought a declaration for his title as owner of the property. To support this contention the learned counsel referred to Deosthan Math Alonya Baba, through Sarbarakar Govindgir Guru Suratgir Gosai v. Ramdayal Balgovind Kalwar and others (A I R 1943 Nag. 307), in which it was held that the scope of a suit for possession based on relationship of landlord and tenant being restricted, the question of title cannot be gone into in such a suit. In my opinion, the con tention raised by the petitioner's counsel appears to be correct, because before he could succeed in getting a distress warrant for arrest of rent against the respondent, he had to A establish that the latter was holding the property in dispute as a tenant under him and, therefore, even if the petitioner was not the owner of the property in dispute, he could have succeeded in getting a distress warrant under section 27 of the Act. In the suit filed by the petitioner to establish his title, the question of tenancy would not be one of the issues and whatever finding is given in the proceedings under section 27 of the Act would not affect the result of that suit and, conversely, the decision given in the title suit would not have any bearing on the proceedings under section 27 of the Karachi Small Causes Court Act, which will have to be revived after the civil suit has been disposed of for deciding the case on merits. On this view of the matter, the order of stay of proceedings passed by the trial Court was not justified.

4. The learned counsel for the respondent while conceding that the power of revision conferred under section 32 of the Karachi Small Causes Court Act was wider than the power conferred by section 115, Civil Procedure Code, contended that that power should not be exercised unless it can be said that substantial justice had not been done in the case. To support this contention the learned counsel referred to F. Kanematsu & Co. Ltd. v. S. Nazir Hussain Puri (P L D 1957 Kar. 832). The learned counsel also referred to Sunderdass Ghanshamdass v. Tarasing Premsing and another (I L R 1944 Kar. 42), in which it was held that there should be no interference in revision by a High Court with a judgment of a Small Causes Court, on a question either of fact or of law, even though the decision may appear to be erroneous, unless the conclusion of the Small Causes Court is one which no Judge, acting judicially, could reasonably reach. Lastly, the learned counsel referred to B. B. & C. I. Ry. Co. v. Abdul Rahman Muhammad Abdullah (A I R 1931 Lah. 606) and Labhu Ram v. Mool Chand (A I R 1921 Lah. 91), in which somewhat similar ‑views have been expressed.

5. As explained above, the trial Court has taken an erroneous view of the matter and has declined to decide the question at issue before it namely, as to whether the respondent was holding the property as a tenant under the petitioner and, as such, substantial injustice has been done to the petitioner, because whatever might be the decision in the civil suit, the application under section 27 of the Karachi Small Causes Court Act will have to be disposed of on merits.

6. I, therefore, accept this revision petition with costs, set aside the order dated the 7th December 1960 and remand the case for redecision on merits. K. B. A. Petition accepted Case remanded.