This is a revision under section 25 of the Provincial Small Causes Court, Karachi whereby the suit filed by the petitioner was dismissed.
2. The facts forming the background of the case briefly are that the respondent was the tenant of a house owned by the petitioner at a monthly rental of Rs.
100. The petitioner moved the Rent Controller for ejectment of the respondent on the ground of non-payment whereby the respondent admitted the liability to pay the arrears of rent with effect from 1-5-1968 to 30-6-1969 at the rate of Rs. 100 per month but subject to certain agreed terms regarding instalments, repairs and water charges. As the respondent failed to pay rent in spite of the compromise agreement, the petitioner filed another application for his ejectment, wherein tentative order for deposit of arrears and future rent was passed by the Rent Controller. Against this order the respondent took an appeal to the District Judge which was, however, dismissed. Notwithstanding the dismissal of his appeal the respondent failed to comply with the tentative order and as a result his defence was struck off and his ejectment ordered. According to the petitioner the respondent abandoned the possession of the premises thereafter. As the arrears of rent remained unpaid, the petitioner filed Suit No. 164 of 1971 against the respondent for recovery of rent arrears amounting to Rs. 3,400 in the Kara-.Bi Small Causes Court on 4-3-1971.
3. In response to the summons the respondent appeared and filed a written statement on 28-4- 1971. The suit was then adjourned to 6-7-1971 for regular hearing. On this date, however, the plaintiff (petitioner) was not present but only his advocate appeared and sought to produce some docu-- ments without a written application which were, however, not accepted by the Court. Then an oral request was made by the advocate for adjournment of the case for a few days which was also disallowed. As a consequence, the suit was dismissed. It would appear that after the said order was passed, the advocate for petitioner (plaintiff) submitted written application for adjourn--ment of the hearing on the ground of illness of the appellant and annexed for documents along with it, but the learned Judge rejected the same on the ground that he had already rejected the request and dismissed the suit.
4. I have beard Mr. G. M. Saleem the learned counsel for the petitioner and the respondent in person. By virtue of section 17 of the Provincial Small Causes Courts Act, 1887, the procedure to be followed in a Court of Small Causes is as prescribed by the Code of Civil Procedure, 1908, subject to the provisions as contained therein. Taking into consideration, therefore, the provisions of the Code of Civil Procedure, the order of dismissal of suit, impugned in this revision, on first reading appears to fall under Order IX, rule 8, C. P. C., as the language adopted clearly indicates that the learned Judge had in mind the procedure provided therein. However, on careful consideration of the record and all the circumstances of the case I have come to the conclusion that the learned Judge had, after rejecting the documents tendered by the advocate and refusing the request for adjourn-- ment proceeded to decide the suit on merits. This conclusion is inescapable having regard to two factors. Firstly there is nothing in the order to suggest, that after making a request for adjournment which was rejected, the learned advocate for the plaintiff had refused to act for the plaintiff or had withdrawn from the case. On the contrary, even after the order was passed, he acted for the party inasmuch as he made a written application for adjournment. This is consistent with his previous conduct as he sought to tender documents in evidence which were not accepted. Had he had no instructions he would have reported so, when the case was called for during the bearing. Secondly, the fact that a decree was drawn up following the order of dismissal is a conclusive proof that the Court passed judgment on merits, as otherwise. An order of dismissal of suit for default is not a decree and under the Code of Civil Procedure is not appealable as a decree.
5. In this view of the matter the question that arises is whether the Court acted legally in disposing of the suit on merits in the manner as it did. The hearing on 6-7-1971 was the first final hearing of the case, as the suit was adjourned to this date from 28-4-1971 when the defendant had filed written statement. Therefore, the hearing was not adjourned at the instance of the plaintiff: To the adjourned hearings, the provisions of Order XVII, C. P. C. Are attracted and the Court could pass a decree forth--with under rule 3 of Order XVII, C. P. C. Only if time had bean granted to the petitioner to produce evidence and he had failed therein. But admittedly no adjournment was sought by the petitioner on the previous hearing for the purpose. I am, therefore, of the confirmed view that Order XVII, rule 3 C. P. C. Was not attracted and the Court could not proceed to decide the suit under those provisions.
6. Now under Order III, rule 1, C. P. C., the plaintiff was entitled to appear through his advocate and the appearance of the advocate was the appearance of the plaintiff. If, there was no default in appearance, and the case had not been adjourned on the previous hearing at the instance of the petitioner, obviously the provisions of Order XVII, rules 2 and 3 by virtue of the provisions of Order 1X, rule 8, C. P. C. Were not applicable. The only course left open to the Court, in this situation was, after refusing to adjourn the case, to proceed to record the evidence, if any, produced by the parties and hear arguments before deciding the suit. In the event of there being no evidence available the Court could have closed the side of to plaintiff and called upon the defendant to produce his evidence if any. This is all the more necessary, where the position of the pleadings is such that the issues that arise out of them are such where the burden lies on the defendant. B In this connection I would refer to the provisions of Order XYIII, C. P. C. Which provide for the hearing of the suit and examination of the witnesses. Rule 1 of the said order deals with the right to begin and provides that the plaintiff has ordinarily the right to begin unless the defendant admits the facts alleged by the plaintiff and pleads a defence based on a point of law or on some additional facts, in which case the defendant has the right to begin Rule 2 of the said order then deals with the procedure for recording of evidence and makes it incumbent upon the party having the right to begin to produce his evidence followed by the evidence of the other party.
7. However the learned Small Causes Judge did not follow this pro--cedure. He did not receive in evidence documents produced by the advocate for the plaintiff. The reason assigned for this was that they were not accom--panied with an application. To my mind the reason is totally unwarranted ,. For the obvious reason that an application becomes necessary only under y Order XIII, rule 2, C. P. C. When the time prescribed for production of documents has expired when they are sought to be produced. In this case the suit being a small cause matter no issues were framed by the Court but the suit was straightaway fixed for final disposal on the date in question. Accordingly, the Court ought to have received any documentary evidence tendered on behalf of the parties without insisting upon an application and as to the question of proof or admissibility of the documents, that question could have been considered separately but the Court completely shut out the evidence of the plaintiff on the sole ground that he was not personally present. It is not necessary for the plaintiff to be personally present and the law permitted the petitioner to be represented by a counsel who was in fact appearing and was treated as having appeared in the case. It would only be D necessary for a plaintiff to be personally present when the Court passes an order to that effect under Order IX, rule 12, C. P. C. But no such order was passed in this case.
8. If the learned Judge had proceeded in accordance with the provisions of Order XVIII the interests of the petitioner might have been sufficiently protected by cross-examination of the witnesses if any produced on behalf of the respondent (defendant). This is because the state of pleadings is such that it appears that the respondent admitted to have remained as the tenant of the plaintiff up to 3rd April 1971 nut only resisted `the claim for payment of arrears of rent on the additional pleas set up by him in his written state--ment. Accordingly, the respondent might have been required to begin with his evidence in which case the learned advocate of the petitioner may have been able to cross-examine the witness of the respondent and supported the petitioner's case by documentary evidence which comprised mostly certified copies of public record. However, I do not mean to decide this question in this revision and it will be open to the parties to agitate these matters before the trial Court. My only purpose is to show that the learned Judge erred in disposing of the suit in the summary manner in which he proceeded to decide the suit. In the view that I have taken, it was necessary for the learned Judge to pass a judgment under Order XX, C. P. C. But without assigning any reason the learned Judge disposed of the suit on the sheer ground of absence of the plaintiff and the defendant's denial of the claim of the plaintiff. This, in my view, was totally illegal.
9. In the result, therefore, the order dated 6-7-1971, dismissing the suit and the decree following thereon are hereby set aside and the suit remanded for re-trial by the Court of Small Causes Karachi according to law. It will be open to the parties to produce whatever evidence they deem necessary, but in view of the fact that this is a small causes suit the Court shall take all necessary steps to dispose of the suit expediciously. In the circumstances of the case, there will be no order as to costs.