2207wp3445.11.odt 1 THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR WRIT PETITION NO.3445 of 2011. Shri Sk.Irshad Sk.Shabir ..vs.. Smt.Shadab Nasreen Vakil Ahmad ............................................................................................................................................................... Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ............................................................................................................................................................... Mr. S.I.Khan, Adv. for the petitioner. CORAM : R.M.SAVANT, J. DATED : 22nd July, 2011. 1. The above petition raises a challenge to the order dated 13/6/2011 passed by the learned Ad hoc District Judge, Nagpur, by which order Misc.Civil Appeal No.116 of 2011 filed by the respondent herein came to be allowed and resultantly order dated 21/3/2011 passed by the Trial Court i.e. Additional Judge, Small Causes Court, Nagpur came to be set aside. 2. The subject-matter of the said proceedings was a distress warrant sought by the respondent no.1 against the petitioner herein in respect of the arrears of rent qua the tenanted premises occupied by the petitioner. 3. The petitioner above named filed an application, Exh.22 praying that he may be allowed to cross-examine the respondent herein. The said cross-examination was sought on the basis that the application for a distress warrant in terms of Section 27(b) of Provincial Small Causes Court Act is to be accompanied by an affidavit or affirmation in Form ‘A’ in third Schedule of the said Act. The petitioner contending that the said affidavit is by way of 2207wp3445.11.odt 2 examination-in-chief of the applicant sought the said relief by way of application Exh.22. 4. The learned Additional Judge, Small Cause Court considered the said application, Exh.22 and by his order dated 21/3/2011 allowed the said application, principally on the ground that the affidavit in Form ‘A’ was the examination-in-chief of the applicant and therefore in terms of Order 19 Rule 1 of the Code of Civil Procedure, the petitioner herein would be entitled to cross- examine the respondent. 5. Aggrieved by the said order dated 21/3/2011, the respondent filed an Appeal which, as mentioned herein above, numbered as Misc.Civil Appeal No.116 of 2011, the Appellate Court set aside the said order passed by the Trial Court inter alia on the following grounds; i) That Section 17 of the Provincial Small Cause Court Act would not be applicable to a distress warrant, and if that be so, there cannot be any cross-examination of the respondent. ii) The Appellate Court further held that Section 27(c) of the said Act prescribes only procedure for making an application for a distress warrant which envisages, filing of an affidavit or affirmation in form ‘A’ in Schedule, and that would not be akin to a examination-in-chief of the applicant as contemplated under Order 18 Rule 4 of the C.P.Code. 6. Having perused the impugned orders passed by the First Appellate Court and considering the provisions of Section 27(c) of the said Act, which ex facie contemplate the application for distress 2207wp3445.11.odt 3 warrant, be accompanied by an affidavit or affirmation in Form ‘A’. The reasoning given by the Appellate Court while setting aside the order passed by the Trial Court cannot be faulted with. In my view, the Trial Court had erred in equating the filing of the affidavit along with the application to be the examination-in-chief as contemplated under Order 19 Rule 1 of C.P.Code and thereby had permitted the cross-examination of the respondent. In that view of the matter, no case for interference is made out. Writ Petition is accordingly dismissed. JUDGE chute