' The petitioners purchased from Mst. Ghulam Fatima, land measuring 41 Kanals 14 Marlas situate in village Jannun Mustaqil, tehsil Kot Adu, district Muzaffargarh, through Mutation. No, 45 attested on 15th January, 1979 by Assistant Collector Grade H. Allah Diwaya, respondent, was a tenant on this land prior to this transaction of sale, therefore, he filed a suit for pre-emption against the petitioner s-vendees and Mst. Ghulam Fatima, the vendor, on the basis of tenancy under para. 25 of Martial Law Regulation No, 115 of 1972 in the Court of Collector, Muzaffargarh. The respondent failed to pay the rent of the suit-land for Rabi and Kharif, 1980 crops and, therefore, the petitioners were obliged to file a suit for the recovery of the rent before the Assistant Collector Grade 1, which was decreed for Rs, 1,230.93 in their favour on 19th April, 1981 (Annexure 'A' with the petition). The respondent filed an appeal against the decree passed against him about the arrears of rent which was dismissed .
By the Collector vide his order dated 25th June, 1981. The learned Collector noted in his order that the respondent had accepted the decree dated 19th April, 1981 and paid the amount of rent in Court which was deposited in the treasury as Amanat with the direction that the decree-holders may withdraw the amount.
2. Prior to this, the petitioners filed a suit for ejectment against the respondent before Assistant Collector Grade-1 on 24th May, 1981 under para. 25 of Land Reforms Regulation read with Punjab Land Reforms (Procedure for Ejectment Suits) Rules, 1977, on the basis of non-payment of rent due from the respondent for the Rabi and Kharif, 1980 crops. The decree of the arrears of rent dated 19th April, 1981 was appended with the suit to be read as evidence of default committed by the respondent. This suit was resisted by the respondent. On the basis of the pleadings of the parties, following issues were framed :-
(1) What is the effect of pendency of suit for pre-emption?
(2) Whether the respondent is liable for ejectment?
' The learned Assistant Collector Grade, I, dismissed the suit for ejectment on 22nd July, 1981 saying that although the default committed by the respondent in paying arrears of rent has been established but in view of the pendency of pre-emption suit filed by the respondent his ejectment was refused. The petitioner assailed this order before the Collector who dismissed the appeal on 30th November, 1981 saying that in his view there was possibility of default having been committed by the respondent due to the refusal by the petitioner to accept the rent and that since the respondent had filed a pre-emption suit, therefore, it would not be equitable to discontinue his tenancy by ejecting him from the suit-land. Being aggrieved of these orders the present writ petition has been filed challenging the correctness and legality of the said orders.
3. Learned counsel appearing on behalf of the petitioner contends that the Collector having found that the respondent was liable for ejectment on the ground of default committed in paying the rent was bound to order ejectment under the law and by dismissing the suit on the ground of pendency of pre-emption suit filed by the respondent had acted in complete disregard to law, therefore, his order dated 22nd July, 1981' is without lawful authority. He maintained that the reason given is extraneous to para. 25, Sub-para.1 of Martial Law Regulatioh. He next argued that the Collector omitted to consider the material evidence on record and had relied on wholly irrelevant evidence for holding respondent No, 1 as not liable for ejectment on the ground of nonpayment of rent and as such he also acted without lawful authority. To substantiate his contention, the learned counsel relied on Asghar Ali and others v. Muhammad Siddiq Javed and others. Wherein the order of Assistant Collector based on equity was held to be of no help to the plaintiff-respondent. Reliance was also placed on Taj Bibi v. Ijaz Hussain Shah at pages 943 and 945 to support the argument that an order passed on considerations extraneous to the law applicable would be an order without lawful authority and was liable to be struck down being without jurisdiction. He further contended that it is true that in the exercise of a writ jurisdiction, a finding of fact cannot be disturbed but in the cases where the finding is not supported by the evidence on record can surely be disturbed. Reliance in this behalf is placed on Commissioner v. Sher Muhammad, Habib Khan v.
Additional Settlement Commissioner, Multan and Irshad Ahmad v. Settlement Authority, Punjab.
4. On the other hand, learned counsel for the respondent has argued that para. 25 provides protection to the tenants against ejectment by the landlords. It safeguards the rights of tenants.
Therefore, the ejectment by the Collector under this provision is not mandatory but is discretionary with the Court. He maintained that the discretion exercised by the Collector on the basis of equity should not be disturbed. He next argued that the petitioners have not approached this Court with clean hands as they did not mention about the order of the Collector dated 25th June, 1981 passed in appeal filed by the respondent against the order of the Assistant Collector dated 19th April, 1981 whereby decree of arrears of rent was passed against him. He emphasized that this document was suppressed purposefully because the learned Collector had observed in his order that the respondent had cleared the arrears of rent due from him and the same was deposited in the treasury for payment to the petitioner and thus he had satisfied the decree. He pressed into service section 42 of the Punjab Tenancy Act which says that a tenant could not be ejected if the decree passed against him is satisfied. The petitioner did not refuse to accept the arrears of rent' due, which would mean that he had accepted the amount and waived his right to pursue the ejectment of the respondent on the basis of default committed by him. He has relied on Akbar, etc. v. Mst.
Sarwar Sultan and Khuda Bakhsh v. Additional Commissioner, Sargodha.
9. The ratio of the authority cited as PLD 1980 Rev. 7, doesn't help the contention of the respondent.
The learned counsel appears to have misappreciated the same. In the same way, dictum laid down in PLD 1980 Lab. 353, is least helpful to the respondent. Contrarily, the case of the petitioner1 2 3 4 5 6 7 finds support from the same. No other point has been canvassed by the learned counsel for the respondent.
10. Since the respondent had defaulted in the payment of "Batai' as has been squarely established by the decree of the Revenue Court which entailed the necessary consequance of ejectment. The provisions of the Martial Law Regulation No, 1972 have no doubt been brought on the Statute Book to protect the rights of the tenant but the protection visualized by the Regulation is not absolute but is A circumscribed by the exception which lays down that a tenant can be ejected if he failed to pay the share of produce to the landlord or he has materially impaired the utility of land irrespective of the fact whether a pre-emption suit is pending between the parties or not. Since the riders placed on the right of the tenants have been substantiated by the petitioner, and the inferences drawn by the Courts below were not based on the evidence on record but on the consideration extraneous to the law, therefore, both the impugned orders are not sustainable.
11. In view of the discussions made above, both the tribunals of revenue jurisdiction have fallen in error of law and judgment and have thus passed orders which are wholly without jurisdiction. As a result in consequence, I declare the impugned orders of respondent Nos. 2 and 3 to be without lawful authority and of no legal effect. There is no order as to costs. PLD 1977 Lah. 586 PLD 1966 Lah. 939 1972 SCMR 395 1980 SC MR 84 1981 SCMR 758 PLD 1980 Rev, '1 PLD 1980 Lah. 353