The applicant is a tenant of the respondent and on the allegation that he had not paid rent, the respondent filed a distress warrant application against him in the Small Causes Court, Karachi.
Rent was claimed in this application at the rate of Rs, 100 per month plus Rs, 10 for electricity and the arrears were for the period of one year from 1st April, 1970 to 31st March, 1971. The applicant contested the applications, and filed his objections on 26th April, 1971. The pleas taken by him in these objections were that he paid the rent upto March, 1971, therefore the application was frivolous. The only other plea advanced by him was that the respondent should be directed to take a special oath and he (the applicant) was willing to abide by the result. The objections came up for hearing on 7th May, 1971 and as the applicant and his counsel were absent, the objections were dismissed and a distress warrant was ordered to be issued. However, on 11th May, 1971 the applicant filed a restoration application which was allowed. I may further point out here that in his affidavit in support of this restoration application, the applicant stated that he had remitted the rent for March, 1971 by money order to the respondent. He has also stated that, in order to harass him, the respondent had cut off his electricity connection, therefore he had filed an application before the Rent Controller, Karachi for the restoration of his electricity connection. In the result, the plea advanced by him was that the distress warrant application was mala fide and filed only to harass him because the respondent was trying to get vacant possession of the demised premises. This restoration application was allowed but counsel did not know the date on which it was allowed. Be that as it may as the applicant's objections were to be heard the respondent filed his counter- affidavit to the applicant's objections on 21st May, 1971. Then the case was adjourned to 28th May, 1971 and on that day the Court dismissed the applicant's objections and allowed the distress warrant application of the respondent. In this order the learned Judge has stated as follows : "The opponent now admits that he has not paid rent from 1st April, 1970 to 28th February, 1971 to the applicant but has paid rent for this period to one Usman Shopkeeper at the instance of the applicant. The applicant is present and vehemently denies this fact. The opponent has also not produced Usman shopkeeper nor his book in which the opponent states Usman had made entries.
Admittedly he has no receipt from Usman also to show that in fact he had paid rent to Usman. On behalf of the applicant that he paid rent to Usman and the applicant had the rent from Usman as stated by the opponent then there is no reason why the opponent filed false D.W. Application against him. Admittedly there was no dispute between the parties. The opponent is an employee in a firm and is educated and appears to me highly intelligent and worldly wise man. The plea taken by him is false and appears to me absurd and I reject it."
' The applicant then preferred a revision against this order which has now come up for hearing before me.
2. In support of the application Mr. Amir Ahmad cited a judgment of a foreign jurisdiction in which it was held that a revision under the . Small Causes Court Act is maintainable when the order of the Small " Causes Court Judge is not supported by evidence at all. In view of the observations in the order under revision, I enquired from Mr. Amir Ahmad how he could contend that the impugned order was not supported by evidence. Mr. Amir Ahmad then stated that the case was fixed only for the applicant's affidavit in rejoinder on 28th May, 1971 and that the trial Court erred in refusing an adjournment to the applicant and questioning him and then deciding the case against him on the basis of the applicant's answers to the Court's enquiry. This, it will be seen that the real point in the revision application is whether the trial Court was entitled on 28th May, 1971 to decide the case which it did, or whether it should have given the applicant an opportunity to produce evidence.
3. As I have pointed out, Mr. Amir Ahmad submitted that the case was fixed on 28th May, 1971 only for the applicant's affidavit in rejoinder, but there is nothing to support this plea ; and, on the contrary, it is inconsistent with the observations in the impugned order. Mr. Amir Ahmad then stated that it was customary in the Small Cause Court for the defendant to file an affidavit in rejoinder, and that the applicant was not therefore, ready with his evidence. No rules have been cited in support of the alleged practice, and I do not see why the applicant should not have been ready with his evidence merely because he was desirous of filing an affidavit in rejoinder. It is also relevant to observe here that the Court had granted indulgence to the applicant in recalling its earlier ex parte order dismissing for default and non-prosecution the applicants objection. In these circumstances, the trial Court was entitled to proceed with the evidence in the case. In this view of the matter, the only question is whether the impugned order is erroneous under law.
4. I have quoted the relevant part of the trial Court's order according to which the applicant admitted that he had no rent receipts from the respondent. He appears to have stated before the learned Judge that he was paying rent to one Usman on behalf of the respondent who used to make entries of the rent paid in a note book maintained by him. Mr. Amir Ahmad also confirmed from the Bar that the trial Court had correctly reproduced the statement of the applicant. In view of this admission, the position is that the applicant had admitted that he did not have any rent receipts with him, this cannot improve his case. Mr. Amir Ahmad therefore, submitted that in the locality where the demised premises were situated landlords never issued receipts to tenants. Now, if there was any such practice or custom the applicant was required to plead it in his objections and give evidence about it. He has neither pleaded it nor given evidence about it ; and further, his failure to produce evidence was his own fault. Mr. Mazafarul Haq also stressed that the applicant had two opportunities of pleading his defence yet he had nowhere set up his plea of alleged payments to Usman the shopkeeper, therefore, the trial Court was entitled to reject it. This is correct. As the plea that Usman used to receive rent on the respondent's behalf was not pleaded, I do not see how the applicant could have given, evidence in this respect without an amendment of the pleadings. But admittedly, there was no such request. In these circumstances, if the Court refused to believe the applicant's defence, it cannot be said that it committed any error of law.
5. The application is without merit and is dismissed.