JUDGMENT'
The petitioners were tenants of three acres of the land belonging to . Vida Hussain respondent No.
3. They have been ordered to be ejected byi" the order of Assistant Commissioner/Collector, Sadar Sub-Division Sheikhupura of 19th June, 1980. Fida Hussain had filed a suit for eject--ment in the Court of Tehsildar but it was transferred to the Court of Collector in accordance with the rules when the suit could not be decided within 10 days. The petitioners challenged the order of the Collector in the Court of the Additional Commissioner but the appeal was dismissed on 24th November, 1980.
These orders have been challenged in the present writ petition, 11 2. The learned counsel has argued, inter al a', that a decree of ejectment cannot be passed without first holding that a decree for arrears of rent remains unsatisfied. He relies on the judgment in the case of A Khuda Bakhsh v.
Additional Commissioner, Sargodha and 2 others (PLD 1980 Lah. 353) and the case of Akbar etc. v.
Mst. Sarwar Sultan (PLD 1980 Rev. 7). This question has been debated at considerable length and the learned counsel for the respondent also relies on the case of Khuda Bakhsh referred to above.
The respondent's case is that a separate suit for arrears of rent is not necessary in view of the Martial Law Regulation No. 115 acid that it is lawful to order the ejectment of a tenant once it is found that he has failed to pay rent in accordance, with the terms of the tenancy.
3. The ejectment. Of the petitioners has been ordered on the ground of failure to pay rent. The failure of a tenant to pay rent has been aIB ground for ejectment throughout and the Martial Law Regulation 115 has further reiterated it. Section 39 of the Punjab Tenancy Act, 1887 gives the following as a ground for ejectment "39 .
(a)
(b)
(c) that a decree for an arrear of rent in respect of the tenancy has been passed against him and remains unsatisfied.
(2) ---------------------.
Para. 25 of M. L. R. 115 repeats the same ground for ejectment in the following terms "25. Rights of tenants.-(1) A tenant shall not be ejected from his tenancy unless it is established in a Revenue Court ;hat he has-
(a) failed to pay the rent in accordance with the terms of the tenancy ; or Section 42 of the Tenancy Act lays down certain restrictions on eject. Ment. It lays down as follows "A tenant shall not be ejected otherwise than in execution of decree for ejectment, except in the following cases, namely,-
(a) when a decree for an arrear of rent in respect of his tenancy has been passed against him and remains unsatisfied ; (b)
Sections 43 and 44 deal with the action to be taken by the Revenue Officer towards ejectment of a tenant. Section 43 provides for the landlord to apply to the Revenue Officer for the ejectment of a tenant under clause (a) or (b) of section 42 and section 44 makes it incumbent upon a Revenue officer to whom an application has been made under clause (a) of sec--tion 42 to hold an enquiry with respect to the existence of the arrears and to cause a notice to be served on the tenant informing the tenant that if he does not pay the amount of the decree to the Revenue Officer within 15 days from the receipt of the notice he will be ejected from the land It is only in a case where the tenant does not pay the amount that a Revenue Officer had to eject him subject to the provisions of the Tenancy Act with respect to the payment of compensation.
4. The previous paragraph briefly sums up the law relating to the ejectment of tenants for non- payment of arrears of rent. The Tenancy. Act clearly lays down that there has to be first a decree for arrears of rent and a tenant can be ejected only if he fails to satisfy the decree after being given a proper notice by the Revenue Officer to do so. Para. 25 of Martial Law Regulation 115 does not, in any case, supersede the provisions of the C Tenancy Act in that regard. 1t only reiterates the ground of default of payment of rent "as a ground for ejectment of tenants. The Martial Law Regulation no doubt is to override other laws as provided for in para. 3 of the Regulation but para. 25 which deals. With the subject of, tenants does not, at any stage, depart from the provisions of Tenancy ct referred to in the earlier paragraph. I am, therefore, of the view that the restrictions laid down in clause (a) of section 41 of the Punjab Tenancy Act, 1887 are still in force and a tenant cannot be ejected without satisfying the require--ments of section 42 read with sections 43 and 44 of the Tenancy Act. In the present case the ejectment has been ordered in violation of the clear provisions of law. The orders of the Revenue Officer, therefore, were not passed in proper exercise of the jurisdiction. They are, therefore, set aside as of no legal effect. The Writ Petition is allowed with costs.