1. ' This Revision application is filed under section 26 of the Provincial Small Causes Court Act, 1887 (hereinafter to be called as the said Act), wherein order dated 18-12-1977 of learned Judge, Small Causes Court, Karachi has been called in question.
2. ' Brief facts giving rise to this revision application are that the respondents filed an application for Distress Warrant under section 27-A of the said Act against the applicants for collection of arrears of rent amounting to Rs, 13,320 at the rate of Rs, 60 per month in respect of Shop No, 117, situate at Liaquat Bazar, M. A. Jinnah Road, Karachi which is in occupation of the applicants as tenants.
3. Notice on this application was issued to the present applicants who filed their objections and after hearing both the parties the learned Judge passed order on 18-12-1977, impugned herein whereby objections were dismissed and the Distress Warrant was issued.
4. ' The learned counsel for the applicants has contended before me that the impugned order is illegal for the reasons that the proper procedure as laid down was not followed by the learned Judge of Small Causes Court inasmuch as he did not record any evidence of the parties and secondly the learned Judge was not justified to pass the impugned order when in the written objections plea was taken by the applicants that they are not the tenants of the respondents and title of respondents as owners of the disputed property was categorically denied.
5. ' So far the first objection is concerned the answer is that the proceedings before the Small Causes Court under the said Act are summary proceedings and the procedure to be followed is laid down under sections 27-A and 27-B of the said Act. Under section 27-A any person claiming to be entitled to arrears of rent of any house or premises, within the jurisdiction of that Court, can make an application supported by an affidavit or affirmation to the effect of Form 'A' given in the third Schedule to the Act. Section 27-B provides that the debtor or any other person alleging himself to be the owner of any property seized under a Distress Warrant may at any time within 5 days or- street- extended time as a Court may grant apply to the Court to discharge or suspend the Warrant or to release a distained article and the Court may discharge or suspend such warrant or release such article accordingly, upon such terms as it thinks just and the Court may, in its discretion give reasonable time to the debtor to pay the rent due from him.
6. ' Section 17 of the said Act provides that the procedure prescribed in the Civil Procedure Code, 1908, shall save in so far as is otherwise provided by that Code or by this Act be the procedure followed in a Court of Small Causes in all suits cognizable by it in all proceedings arising out of such suits.
7. Order L of the Civil Procedure Code specifies the provisions of the Code which are not applicable to the proceedings in the Small Causes Court and such provisions include settlement of issues and Order XVIII, rules 5 to 12 which relate to recording of evidence in appealable cases. This shows that recording of evidence of witnesses as provided under rules 1 to 4 of Order XVIII is not barred and it is open to the Court to examine witnesses or not while conducting proceedings under the said Act.
8. Sections 27-A and 27-B of the said Act do not make it mandatory for the Court to A record evidence. On the other hand it appears from the perusal of the relevant provisions as stated above that it is discretionary with the Judge conducting proceedings under the said Act to record evidence, if he finds necessary, otherwise not.
9. ' So far the second objection is concerned with regard to the denial of title, the same is not tenable for the reason that if a claim is made under section 27-A of the said Act, the Court has jurisdiction to investigate that claim for the limited purpose of either granting or rejecting the Distress Warrant application and it is open to either party to file a regular suit on the question of title. The Small Causes Court is not precluded of its jurisdiction to allow the recovery of Distress Warrant merely upon denial of title of the occupant or the tenant. Reliance is placed on the case of Abdul Razaq v.
10. Haji Ibrahim (1).
11. ' In the instant case in the Revision Application counter-affidavit has been filed on behalf of the respondents which is sworn by Shaikh Abdur Rashid. In this counter-affidavit, which is on the record, full facts are given and it is stated in para. 3 that the applicants are tenants of respondents in respect of Shop No, 117 at the rate of Rs, 60 per month. The applicants have paid rent to the respondents for the period from August, 1950 to April, 1961 directly and for period from 1-11-1966 to 31-10-1967, from 1-9-1968 to 31-8-1970, from 1-10-1974 to 30-6-1975 from 1-11-1975 to 31-10-1976 under Distress Warrant Applications Nos. 419/67, 387/69, 438/70, 547/71, 757/72, 569/73, 208/75 and 339/76. It is further stated therein that the applications filed objections only in Distress Warrant Application No, 419/67 which were dismissed by the learned Judge, Small Causes Court vide his order dated 2-3-1968 and the applicants did not file any revision application against the said order. Against these facts stated in the counter-affidavit, the applicants in the present proceedings have not filed any affidavit in rejoinder, which implies that the facts stated above are .Not denied and the applicants have been paying rent to the respondents as tenants and also the rent was being collected from the applicants from {{FOOT NOTE}}
(1) PLD 1959 Kar. 747 {{FOOT NOTE}} ' time to time under Distress Warrants. The learned counsel for the respondents has produced before me certified copy of the application under section 27-A of the said Act in which almost the same facts as stated above in the counter-affidavit are stated. It is pointed out that all these facts as stated above were available with the learned Judge of the Small Causes Court who after considering the objections filed by the applicants and hearing the Advocates of both the parties passed the impugned order which is reproduced as under:- ' Heard applicant in person and Mr. Faizanul Haq, Advocate for the opponent. Applicant produced certified copies of my learned predecessor in Distress Warrant No, 419/67 wherein relationship of landlord and tenant is established. Opponent has also deposited Distress Warrant amount in the said application. In view of this document, this application is allowed and objections stand dismissed, Distress Warrant to issue. .
12. ' I do not find anything wrong with the impugned order and the learned Advocate for the applicants has not been able to point out any illegality in the procedure adopted by the learned Judge of the Small Causes Court.
13. ' For reasons mentioned above the Revision Application having no merit, is hereby dismissed with costs.