1. ' MUHAMMAD AFZAL ZULLAH, J.-This appeal through special leave of this Court is directed against judgment dated 7-6-1981 of the Lahore High Court; whereby a Constitutional Petition filed by the petitioner-landlord arising out of a land tenancy case, was dismissed.
2. ' The relevant facts stated in para. 2 of the petition for leave to appeal and as explained by the learned counsel for the appellants during the hearing of this appeal are that the appellant- landlords filed a suit in the Revenue Court in March, 1974, for ejectment of respondent No, 2 from about 5 acres of land on the grounds of default in payment of rent, self-cultivation and depreciation of the value of the land. This suit was dismissed by the Assistant Collector First Grade, on the main ground that the said respondent had filed a civil suit for specific performance of an agreement of sale of the land m his favour which was still pending. The Collector however on appeal of the landlords decreed the suit on the main consideration that the suit for specific performance had not been decided and that according to the revenue records the said respondent was recorded as a tenant; and default in payment of rent having been established he was liable to be evicted. The respondent-tenant filed an appeal and the case was remanded for further consideration of the question of the pendency of the suit. The Collector in pursuance of the remand order considered the effect of the pendency of the civil suit afresh and affirmed the earlier decision that it had no direct effect on the ejectment proceedings till at least it was decided and decreed in favour of the tenant. And, on the other hand, finding that the default in payment of rent stood almost admitted and there being denial of the title of the landlord on the pact of the tenant, his ejectment was ordered. The respondent-tenant again challenged the appellant order of the Collector before the Additional Commissioner who set aside the eviction order on a legal ground that although the proceedings commenced before the Revenue Court by the appellant in 1974 were for ejectment of the tenant on ground of non-payment of rent the Revenue Court was not competent to eject the tenant unless the landlord was in possession of another decree against the tenant for recovery of rent, (as distinguished from ejectment on ground of non-payment of rent) and notwithstanding the decree for rent having been passed against the tenant he failed to satisfy the same. It was held that unless a decree fcr recovery of rent is passed against a tenant and it remains unsatisfied the law did not permit the tenant to be evicted. In other words it was assumed that in order to evict a tenant on ground of nonpayment of rent the landlord was to file two Revenue Suits one after the other. One for the recovery of rent from the tenant. If he succeeded in that suit and obtained a decree; which the tenant failed to satisfy by making the payment of the rent due, only then the landlord would file a second suit for ejectment (as distinguished from the suit for recovery of rent) which could be decreed against the tenant on the basis that the earlier decree for recovery of rent passed against him in favour of the landlord, remained unsatisfied.
3. ' The appellants' revision before the Board of Revenue failed for the same reasons as noted above.
4. Their writ petition was dismissed by a learned Single Judge of the Lahore High Court notwithstanding the fact that another learned Single Judge of the same High Court had in a reported judgment Khuda Bakhsh v. Additional Commissioner, Sargodha and 2 others , had held that the eviction of a tenant from land under the relevant law could take place on proof of default in payment of rent in one and the same proceedings and further that the law did not oblige the landlord to first file a separate suit for recovery of rent.
5. Leave to appeal was granted in the above-noted circumstances to resolve the conflict between the two judgments of the same High Court; one in the case of Khuda Bakhsh and the other in the present case.
6. ' Learned counsel for the appellants has relied on the case of Khuda Bakhsh. On the other hand, the learned counsel for the respondents has relied upon an earlier judgment of the Board of Revenue Akbar etc. v. Mst. Sarwar Sultan .
7. ' The provisions which would need examination are sections 39 to 45 when read with certain provisions of section 77 of the Punjab Tenancy Act, 1887 (Act No, XVI of 1887) ; sections 3 and 4 of the Punjab Protection and Restoration of Tenancy Rights Act, 1950 (Punjab Act No, XIII of 1950; and, para. 25 of the Land Reforms Regulation, 1972 (Martial Law Regulation 115). They read as follows: "Section 39. Grounds of ejectment of occupancy tenant.-(1) A tenant having a right of occupancy shall be liable to be ejected from his tenancy on any of the following grounds, namely,-
(a) that he has used the land comprised in the tenancy in a manner which renders it unfit for the purposes for which he held it;
(b) where rent is payable in kind, that he has without sufficient cause failed to cultivate that land in the manner or to the extent customary in the locality in which the land is situate;
(c) that a decree for an arrear of rent in respect of the tenancy has been passed against him and remains unsatisfied.
(2) For the purposes of this section a Muqarraridar shall be deemed to be a tenant having a right of occupancy. Section 40. Grounds of ejectment of tenant for a fixed term.-A tenant not having a right of occupancy but holding for a fixed term under a contract or a decree or order of a competent authority, shall be liable to be ejected from his tenancy at the expiration of that term, and, on any of the following grounds, before the expiration thereof, namely:-
(a) that he has used the land comprised in the tenancy in a manner which renders it unfit for the purposes for which he held it;1 2
(b) where rent is payable in kind, that he has without sufficient cause failed to cultivate that land in the manner or the extent customary in the locality in which the land is situate:
(c) on any ground which would justify ejectment under the contract, decree or order. Section 41.
8. Ejectment of tenant, from year to year.--A tenant who has not a right of occupancy, and does not hold for a fixed term under a contract or a decree or order of competent authority, may be ejected at the end of any agricultural year. Section 42. Restriction on electment.-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) when the tenant has not a right of occupancy and does not hold for a fixed term under a contract or a decree or order of competent authority. Section 43. Application to Revenue Officer for ejectment.-In any such case as is mentioned in clause (a) or clause (b) of the last foregoing section, the landlord may apply to a Revenue Officer for the ejectment of the tenant in the case mentioned in the former clause or for the service on the tenant of a notice of ejectment in the case mentioned in the latter clause. Section 44. Ejectment for failure to satisfy decree for arrear of rent.-- --(1) On receiving the application in any such case as is mentioned in clause (a) of section 42, the Revenue Officer shall, after such inquiry with respect to the existence of the arrears as he deems necessary, cause notice to be served on the tenant, stating the date of the decree and the amount due thereunder, and informing him that if he does not pay that amount to the Revenue Officer within fifteen days from receipt of the notice he will be ejected from the land.
(2) If the amount is not so paid, Revenue Officer shall, subject to the previsions of this Act with respect to the payment of compensation, order the ejectment of the tenant unless good cause is shown to the contrary. Section 45. Ejectment of tenant front year to year by notice.-(1) On receiving the application of the landlord in any such case as is mentioned in clause (b) of section 42, the Revenue Officer shall, if the application is in order and not open to objection on the face of it, cause a notice of ejectment to be served on the tenant.
(2) A notice under subsection (I) shall not be served after the fifteenth day of November in any agricultural year.
(3) The notice shall specify the name of the landlord on whose application it is issued, and describe the land to which it relates, and shall inform the tenant that he must vacate the land before the first day of May next following, or that, if he intends to contest his liability to ejectment, he must institute a suit for that purpose in a Revenue Court within two months from the date of the service of the notice.
(4) The notice shall also inform the tenant that if he does not intend to contest his liability to be ejected and he has any claim for compensation on ejectment he should, within two months from the date of the service of the notice, prefer his claim to the Revenue Officer having authority under the next following subsection to order his ejectment in the circumstances described in that subsection.
(5) If within two months from the date of the service of the notice the tenant does not institute a suit to contest his liability to be ejected, a Revenue Officer, on the application of the landlord, shall, subject to the provisions of this Act with respect to the payment of compensation, order the ejectment of the tenant: ' Provided that the Revenue Officer shall not make the order until he is satisfied that the notice was duly served on the tenant.
(6) If within those two months the tenant institutes a suit to contest his liability to be ejected and fails in the suit, the Court by which the suit is determined shall by its decree direct the ejectment of the tenant."
9. The Punjab Protection and .Restoration of Tenancy Rights Act, 1950 "Section 3. Grounds necessary for ejectment of the tenants and procedure.-(1) Notwithstanding any provision contained in any other law for the time being in force to the contrary, a tenant shall not be ejected from his tenancy unless it is established that he has--
(1) failed to pay the rent in accordance with the terms of the tenancy ; or * * * * * Deleted * * * * *
(iii) used the land comprised in the tenancy in a manner which renders it unfit for the purpose for which he held it ; or
(iv) failed to cultivate or arrange for the cultivation of the land corn-prised in the tenancy in accordance with the terms thereof, or if there are no express terms in this behalf, in accordance with the customary manner of cultivationln the locality ' Provided that where a landlord, his son, or grandson does not have under his personal cultivation (including cultivation through a servant or hired labour) jointly or severally or in partnership with anyone else, out of the culturabk land owned by the landlord an area equal to 25 acres, his right to eject any tenant from such portion of his tenancy, as with the area already in the possession of such landlord, his son or grandson whether jointly or severally or in partnership with any one else will make 25 acres, will not be affected and that in the case of a landlord owning more than 100 acres of land, the minimum of 25 acres shall be deemed to have been raised to 50 acres : ' Provided further that for the purposes of the first proviso an acre of unirrigated culturable land shall be counted as half an acre and the classification of land made and the ratio between the irrigated and other categories of land fixed for purposes of determining the area for personal cultivation under the Punjab Tenancy Act, 1887, shall mutatis mutandis apply for purposes of determining the area for personal cultivation under this Act : ' Provided further that for the purpose of this subsection subletting of the tenancy for any portion thereof shall not be treated as arrangement for the cultivation of the land comprised in the tenancy, except where the tenant is incapacitated bodily from cultivating the land himself.
(2) An application for the ejectment of a tenant on any one or more of the grounds mentioned in subsection (1) may be made by the, landlord to a revenue officer of any grade having jurisdiction in the area where the tenancy is situated.
10. (2-A) Where a landlord has in exercise of the right reserved by the first proviso to subsection (1) once secured an area for personal cultivation, he shall not thereafter have the right to claim any other area in lieu of the said area or any part thereof even though he may have lost that land through alienation : Provided that he shall have the right of exchanging the said area of 25 acres or any part thereof with any land in which he may acquire proprietary rights by inheritance after having secured the said area : ' Provided further that if the land secured by the landlord for personal cultivation or any portion thereof is compulsorily acquired by the Provincial or Federal Government or is rendered darya burd, or if 50 per centum or more thereof is rendered totally unculturable on account of the action of sem or thur, the landlord shall be entitled to so much additional area, as with the area, if any, still in his possession, and in the last mentioned case, the area fit for cultivation, will make up 25 acres, and for this purpose he may eject any tenant.
11. (2-B) Where a person has, under the provisions of this Act or of any other law for the time being in force, secured or retained any land for personal cultivation, he may let out the whole or any part of such land to tenants, and such tenants shall not have the protection of this Act in respect of ejectment from the land so let out to them.
12. (2-C) When any land, not secured or retained' by any person owning land for personal cultivation under this Act or under any other law for the time being in force, is transferred by sale, exchange, gift, will, mortgage or any other means, whether permanently or temporarily, the transferee shall not have the right to eject the tenant thereof on any ground on which he could not be ejected by the transferor : Provided that the prohibition imposed by this subsection shall not apply where any sale of such land is effected with the sanction of the Collector under subsection (2-D).
13. (2-b) Where any person wishes to sell any land which has not been secured or retained by him for personal cultivation, he may make an application in writing to the Collector of the District where the land is situate, and the Collector may, after such inquiry as he may consider necessary, either grant the necessary sanction in writing or reject the application.
(3) On receiving the application of a landlord under subsection (2) the revenue officer shall, if the application is in order and not open to objection on the face of it, cause a notice to be served on the tenant to show cause why he should not be ejected from his tenancy or such portion thereof as is referred to in the application : ' Provided that no notice under this subsection shall be served after the 15th day of November in any year.
(4) The notice shall specify the name of the landlord on whose application it has been issued and describe the land to which it relates and the ground or grounds on which it is based.
(5) The revenue officer, after hearing both the parties, if present, on a date fixed for the purpose, and making such further enquiries as he may consider necessary, shalt pass an order directing the tenant to be ejected or the notice to be cancelled, as the case may be : ' Provided that no order for the ejectment of a tenant shall be executed before the first day of May in any year, and in no case shall a tenant be ejected without paying such compensation to him, as we may be entitled to under the law, for the standing crop, if any, or for preparing the land for sowing, if it has been so prepared, as may be determined by the revenue officer.
(6) * Deleted * * * * *
(7) * * * * * Deleted * * * * ' Section 4.-Notices and proceedings to be invalid.-Notwithstanding anything to the contrary contained in any other law for the time being in force, all notices issued against a tenant under section 44 or 45 of the Punjab Tenancy Act, 1887, on or after the 15th day of June, 1949, and all proceedings taken in pursuance of such notices before the date of the enforcement of this Act in any area shall be deemed to be invalid and of no effect.
14. The Land Reforms Regulation, 1972 Martial Law Regulation, 115 "25. Rights of tenants.-(1) Subject to the other provisions of this Regulation, a tenant shall not be ejected from his tenancy unless it is established in Revenue Court that he has-
(a) failed to pay the rent in accordance with the terms of his tenancy ; or
(b) used the land comprised in the tenancy in a manner which renders it unfit for the purposes for which he held it ; or (c)failed to cultivate or arrange for the cultivation of the land comprised, in the tenancy in accordance with the terms thereof, or if there are no express terms in this behalf in accordance with the customary manner of cultivation in the locality ; or
(d) sublet his tenancy.
(2) The crop grown at any time during Rabi 1971-72 on any land comprised in a tenancy shall, on its maturing, be apportioned between the tenant and the landlord in accordance with the law for the time being in force.
(3) As from Kharif 1972-
(a) land revenue and other taxes, cesses, surcharge land levies on and shall be payable by the owner ;
(b) the liability for payment of water rate, and providing seed for any land shall be that of the owner or other person in possession thereof. Other than the tenant :
(c) the cost of fertilisers and pesticides required for the land comprised in a tenancy shall be shared equally between the owner and the tenant ;
(d) subject to the other provisions of this Regulation, a tenant shall have the first right of pre- emption in respect of the land comprised in tenancy.
(4) No owner or person in possession of any land shall levy any chess on, or take any free labour from, any of his tenants.
(5) All suits for enforcing the right of pre-emption in respect of land comprised in a tenancy shall be exclusively entertained, heard and decided by the Collector within whose jurisdiction the land in respect of which the right of pre-emption has been claimed is situated, and all such suits which may be pending in any Court immediately before the commencement of the Land Reforms (Amendment) Ordinance, 1976, shall, on such commencement, stand transferred to the Collector concerned.
(6) Any person aggrieved by an order passed by a Collector under the preceding sub-paragraph may, within thirty days of such order, prefer an appeal to Commissioner.
(7) The Board of Revenue may at any time of its own motion or otherwise call for the record of any case or proceedings under this paragraph which is pending or in which a Collector or Commissioner has passed an order, for the purpose of satisfying itself as to the correctness, legality or propriety of such proceedings or order, and may pass such order in relation thereto as it thinks fit : Provided that no order shall be passed under this sub-paragraph revising or modifying an order affecting any person unless such person has been afforded an opportunity of being heard : Provided further that the record of any case or proceedings in which a Collector or Commissioner has passed an order shall not be called for under this sub-paragraph on the application of any aggrieved person made after the expiration of thirty days from the date of such order.
(8) For the purposes of this paragraph a Collector, a Commissioner and the Board of Revenue shall be deemed to be a civil Court and shall have all powers of a civil Court under any law for the time being in force and the final order passed in such suits shall be deemed to be a decree of a civil Court and shall be executed as such.
(9) In computing the limitations provided for in sub-paragraph (6) or sub-paragraph (7), the provisions of section 5 and section 12 of the Limitation Act, 1908 (IX of 1908), shall apply."
15. ' The above reproduction of the relevant statutory provisions has become necessary on account of considerable confusion that exists on the question regarding availability of law and forum for the ejectment of a tenant-at-will (hereinafter mentioned as the tenant). Learned counsel for the appellant is not wrong in his assertion that sections 3 and 4 of the Punjab Protection and Restoration of Tenancy Rights Act, 1950 brought about a vast change regarding law and procedure for the ejectment of the tenant. Amongst other aspects thereof, it was clearly provided therein that the ejectment could not take place without affirmative finding regarding ground(s) of ejectment specified by that very law. As a consequential measure section 4 of the 1950 Act further provided that even those ejectments which were under process, without the proof of any such ground(s), through the instrumentality of notices only, shall be staved and nullified forthwith.
16. It would be presently seen as to whether clause (a) of section 42 and accordingly section 44 of the Tenancy Act were not primarily meant for tenants other than those at will, but, there is no doubt about the fact that clause (b) of section 42 as also section 45 primarily related to tenants-at-will.
17. Thus by the enactment of section 4 of the 1950 Act the fate of the tenants-at-will vis-a-vis the law and procedure of their ejectment was altogether changed. Earlier they could be ejected at the will of the landlord by service of specified statutory notices through specified functionary even without assigning any reason but the changed law prohibited it and provided that unless the tenant was liable to be ejected on the specified ground(s), he could not be ejected merely on landlord's will.
18. At this stage a question arises whether in addition to the afore-discussed protection, para. 25 of the Land Reforms Regulation (No, 115) of 1972 provided any additional protection to the tenant.
19. Comparative study of the language used in the two legislations of 1950 Act and 1972 reveals that apart from some changes made in the grounds of ejectment, a procedural change was also made; namely, that although under the 1950 Act the tenant could be ejected on the specified ground(s), through an application also, made before a Revenue Officer, it was mandatory under the 1972 Legislation that a suit for ejectment of the tenant shall have to be filed in the Revenue Court in accordance with the rules (the rules were initially framed in 1974 and were substituted in 1977). Thus the old method of ejectment of the tenant either under the Tenancy Act or under the 1950 Act through a Revenue Officer was done away with. The tenant was afforded a better forum namely a Court to protect his tenancy. Further, procedural safeguards were provided in para. 25 of 1972 Legislation but they are not relevant for the present purpose.
20. ' With the above historical progress of the law relating to the ejectment of the tenant it would now be easy to resolve the controversy regarding the prevailing procedure for the ejectment.
21. ' It was observed by the Punjab Board of Revenue in the case of Akbar etc. v. Mst. Sarwar Sultan , that the enlargement of the protection for the tenants by para. 25 of 1972 Regulation did not "render the provisions of section 44 of the Tenancy Act inoperative and does not introduce a summary procedure for the ejectment of tenants". Accordingly it was held as follows :- "That before the ejectment can be ordered on the ground of nonpayment of rent it has first to be established that 'default has occurred and that despite notice, the tenants are not prepared to pay the rent in accordance with the provisions laid down in section 44 of the Tenancy Act. It also follows that in case the landlord wants to eject that tenant on the ground that he is a defaulter, the landlord has first to establish in a competent Revenue Court that the default has occurred and that the tenant is refusing to pay the rent as laid down in section 44 of the Tenancy Act. The landlord, therefore, cannot combine the prayer for recovery of arrears of rent with the prayer for ejectment in the same suit. The suit for ejectment for non-payment of arrears or rent has to follow the suit for recovery of rent after it has been decreed. The provisions of para. 25 of Martial Law Regulation No, 115 are to be read with the provisions of section 44 of the Tenancy Act.
22. ' This view of a learned Member, Board of Revenue was critically examined by a learned Single Judge in the Lahore High Court in the case of Khuda Bakhsh v. Additional Commissioner, Sargodha and 2 others. On the basis of a non obstante clause in the 1972 Regulation (providing that the regulation and the rules/orders thereunder, shall have effect notwithstanding anything the contrary in any other law, order or decree, rule, usage or contract), it was ruled that "notwithstanding anything contained in the earlier tenancy laws, the tenant could be ejected if a Revenue Court finds that he failed to pay the rent due". Regarding the interpretation of section 42 read with sections 43 to 45 the learned Judge reproduced an observation made in Maula v. Jewan Bakhsh etc. , to the effect that "section 77 (3) (e) (of the Tenancy Act) provides distinctly for suits by a landlord to eject a tenant and it is clear that a landlord has his choice of either procedure. He can either proceed by notice under section 43 or he can, as in the present case, bring a suit for ejectment, without previous notice, under section 77 (3) (e)." After making reference to the language used in sections 43 and 44 as also section 77 of the Tenancy Act it was concluded by the High Court as follows : "that the right of a person holding a decree for ejectment is independent of his other right under a decree for the arrears of rent. The two rights, therefore, can operate separately and independent of each other. The corollary of the above is that if a landowner files only a suit for the recovery of arrears of rent, he can execute the same procedure."
23. With respect, it is to be pointed out that the true import of sections 39 to 45 of the Tenancy Act was not correctly appreciated which resulted in conflicting conclusions in these two and other3 4 judgments. It needs to be appreciated that sections 39 and 40 apply to occupancy tenants and tenants for fixed term respectively and not to the tenants at will for which amongst others section 41 has to be seen.
24. ' In this context also section 42 has to be viewed. This section consists of a purview and two exceptions thereto. In order to understand the two exceptions given as clauses (a) and (b) the purview has to be analysed properly. It can be divided in three parts as follows : "A tenant shall not be ejected Otherwise than in execution of decree for ejectment except In the following cases .."
25. ' In order to comprehend its full purport the above provision can be re-arranged. What it provides is that t
(I) a tenant shall be ejected in execution of a decree for ejectment ; and
(2) in case there is no decree for his ejectment, then it (the ejectment) would not take place except in the situations visualized in either of the two sub-clauses (a) or (b).
26. Therefore, sub-clause (a) read in the foregoing context would mean that even if there is no direct decree for ejectment in execution of which the tenant can otherwise be ejected, he would nevertheless be liable to be ejected if instead of decree for ejectment, there its only a decree for an arms'' which remains unsatisfied. Clause (b) essentially deals with tenants-at-will. And it provides that the tenants other than occupancy tenants and the tenants holding for a fixed term under a contract or a decree or an order, shall be liable to be ejected notwithstanding the fact that there is neither a decree for ejectment against them nor a decree for arrears of rent. This goes in accord with what is provided in the succeeding provisions sections 43, 44 and 45. Section 43 provides that cases falling under clause (a) of section 42 would have to be dealt with separately from those falling under clause whereunder service of procedural notices only as provided in section 45 would be enough for ejectment, while, these falling under (a) would have to be processed under section 44.
27. This analysis gives the true picture of the law prior to the enactment of sections 3 and 4 of 1950 Act and pare 25 of 1972 Regulation. In other words prior to the protections afforded in these two legislative measures a tenant at will was liable to be ejected without any decree of the Court whether for ejectment or for arrears of rent ; though ejectment on account of either of these decrees was also possible under section 77 of the Tenancy Act. The protection afforded to occupancy tenants and others under section 42 regarding requirement of a decree for ejectment or a decree for arrears of rent was however, not a sine qua non for the ejectment of a tenant at will prior to 1950. The change brought about by the 1950 Act was that although the ejectment through a decree was not made essential ; nevertheless the ejectment of a tenant at-will without assigning any reason was prohibited. But he could still be ejected without a. Decree on ground(s) specified therein by making an application only to the Revenue Officer. Further, change in favour of the tenant was made in the Land Reforms Regulation of 1972 by providing that the tenant shall be liable to ejectment only if on specified grounds there is a decree for ejectment by a Revenue Court.
28. Nowhere in the grounds of ejectment specified in para. 25 thereof it is provided that prior to an ejectment through a suit for ejectment of a tenant-at-will, a decree has to be passed by the Revenue Court in an independent suit for the recovery of arrears of rent. And as explained earlier it was not at the requirement earlier, neither under the original Tenancy Act, nor the 1950 legislation, far as the tenantat will were concerned. The learned Member, Board of Revenue fell into error in this behalf. Under section 42 of the Tenancy Act the tenant could be ejected under a decree for ejectment but it was not essential. He could also be ejected otherwise as provided under section 42/43 read with sections 44 and 45. Under para. 25 of the Regulation for the first time, it has been provided that he cannot be ejected without a decree for ejectment.
29. ' That being so, a question can be asked as to what is the position now of a decree for arrears of rent. The relevant law nowhere provides that a landlord, on the tenant's committing a default, must always seek his ejectment. On the contrary it is possible to visualize that if harmonious atmosphere is allowed to prevail by forces other than law alone, a landlord might seek the recovery of rent from a good and efficient tenant-at-will through a Court decree only _when he has no other alternative left and then also may keep the same tenant without ejecting him. However, after obtaining a decree for arrears there is a possibility of recalcitrant tenant not abiding by that decree and in that eventuality the landlord might, be compelled to seek his ejectment also through a separate suit for ejectment. But that does not mean that the read with other provisions to the extent they are still operative, cannot landlord, under the present law as contained in para. 25 of the 1972 Regular straightaway seek the ejectment of a tenant who has committed the default in payment of rent as provide in ground (a) of paragraph 25(1). It will not be essential for him in that eventuality to seek, in the first instance, a decree for arrears of rent. And as discussed above in doing this he would not be contravening any earlier law as none provide for the ejectment of a tenant at will as being subject to the landlord filing two suits, one, for recovery of rent and the other for ejectment of the tenant on his failure to satisfy a rent decree. This finds indirect support from section 45(6) of the Tenancy Act also.
30. ' The next question which does not directly arise in this case but might create some confusion, is the scope of the suits which could be filed against a tenant by the landlord before a Revenue Court under section 77 of the Tenancy Act. A case decided by Mr. I.U Khan, Member, Board of Revenue, West Pakistan, would not only clarify the position in this behalf but also be of same assistance _ in appreciating the above discussed controversy. It is A Auraagzeb v. Ghulam Shah and others . A landlord had brought a suit for arrears of rent and for ejectment of the tenant. An Assistant Collector granted the decree of Rs, 20 as arrears of rent but refused to eject the tenant on mere non-payment of Rs,
20. Accordingly the tenant was required to pay only Rs, 20 and continue in tenancy. The landlord's appeal was dismissed by the Collector.
31. An Additional Commissioner, however, while maintaining the decree for rent also ordered the ejectment of the tenant. Whereupon he (the tenant) moved the Board of Revenue in revision. It was observed by the learned Member, Board of Revenue that clause (0 of section 3 of the 1950 Act was the basic law then, in so far as the ground for ejectment on non-payment of rent is concerned.
32. That being so, there were two remedies open to the landlord to press the ground of non-payment.
33. One, an application for ejectment to the Revenue Officer for an order of ejectment on this very ground under subsection (2) of section 3 of the 1950 Act and the other, a suit before Revenue Court for a decree of ejectment under section 77 of the Tenancy Act. It may be mentioned here that clause (e) of section 77(3) provided for suits by a landlord to eject a tenant. While clause (n) provided for suits by a landlord of arrears of rent. There are other clauses also relating to suits between landlord and tenant but they are not relevant here. The learned Member, Board of Revenue, further observed that "the intention of the 1950 Act, was to give protection to the tenants, but at the same time, it devised a machinery by which a quicker ejectment of the tenants could be effected if they were liable to ejectment. Filing a suit for ejectment is a greater protection to the tenant and it cannot, therefore, be assumed that, by giving, a smaller protection to the tenant ; the Legislature intended to take away a greater protection." Accordingly, it was held that in that case the suit being for arrears of rent as well as for ejectment of the tenant, no application under section 3(2)e of 1950 At need be made to the Revenue Officer for arrears of rent and therefore the other option open was to file a suit under section' 77 of the Punjab Tenancy Act, if there were two purposes; one, for recovery of rent and the other ejectment of the tenant, in the same suit. In this behalf it was further held and observed as follows : "If the suggestion by the learned counsel for the petitioner was to be accepted; it would be necessary to first get a decree of rent under section 775 of the. Punjab Tenancy Act and then make an application' under section 3(ii) of the 1950 Act to a revenue officer for the ejectment of a tenant. This cannot be taken to be the intention of the Legislature. It is, therefore, obvious that section 3 of the 1950 Act does not bar the institution of suits in revenue Courts for the arrears of rent and ejectment of tenants under section 77 of the Punjab Tenancy. Act."
34. It would, however, be added that if a landlord chooses not to join the relief of the recovery of rent in a suit for ejectment of tenant on ground of non-payment of rent, such a suit would not be barred on the same reasoning on account of any procedural defect. (See also the instructions on proceedings and suits between landlords and tenants contained in Financial Commission's Standing Order No, 2 (Printed at p. 450 of Aggrawala's Manual of Tenancy Laws, 1974 Edition).
35. ' In this case, therefore, in the light of the foregoing discussion the view taken by the learned Member, Board of Revenue, and the learned Single Judge in the High Court contrary to what has been held above, with respect, is not correct. This appeal is accordingly allowed. The impugned judgments and decrees are set aside with the result that the judgment and decree dated 19-3- 1980 passed by the Collector are restored. Remand of the case has not been thought necessary as no factual dispute has been raised before this Court with regard to non-payment of rent by Rasoola respondent on the contrary this seems to be an admitted position. This restored decree, it is further clarified, will be subject to any order by a competent 'civil Court which it is stated might have been passed in the suit filed by Rasoola for the specific 'performance of an alleged agreement for sale by the appellant in favour of Rasoola. The facts and circumstances of that controversy have not been stated, in order scrupulously to avoid any prejudice to Rasoola in any pending litigation launched by him to establish his own title on the basis of sale. There shall be no order as to costs.
36. ' Before parting with this judgment it is necessary to notice some cases which have been brought to our notice by the officer and the effect of this judgment in regard thereto, In Ghulam Rasul and another v. Additional Commissioner, Revenue and 2 others , the observation to the effect that the tenant at will cannot be ejected without the landlord's first obtaining a decree for arrears of rent and then seeking his ejectment in an independent proceedings, it is, with respect, pointed out was neither the requirement of section 42 as assumed in that Judgment nor is it as discussed above, the correct legal position.
37. ' In a case decided by Peshawar Board of Revenue reported as Noor Ahmad Shah and 2 others v.
38. Amanullah Khan and 9 others , the view taken in respect of the present controversy was that one suit could be filed for recovery of rent as also for ejectment on ground of non-payment of rent. But it was also observed that it is not always necessary that default in payment of rent when proved, that a decree for ejectment shall necessarily follow. Accordingly- it was held that the ejectment would depend upon the circumstances of each case. It is not necessary to examine the question whether on proof of default in payment. Of rent -any discretion is left with the Revenue Court to refuse ejectment, if the same is sought by the landlord; as it does not arise in this case nor- arguments have been addressed before us in this regard. But in so far as the Joining of the reliefs, one for recovery of rent and the other for ejectment of the tenant in . The same suit is concerned, it is in accord with the law as declared Above.
39. ' Another case which needs to be noted is of Mst. Shher Bano and others v. Member (Revenue)
40. Board of Revenue Punjab, Lahore and others . A learned Single Judge of the Lahore High Court, while reiterating his view held in the case of Khuda Bakhsh also held, with regard to the ejectment of a tenant under para. 25 of Land Reforms Regulation, 1972, that the Board of Revenue has no jurisdiction to entertain a revision petition against the order passed by a Commissioner which was held to be final by virtue of rule 7(4) of 77 Punjab Land Reforms (Procedure for Ejectment Suits)
41. Rules, 1977. It is not necessary to examine the reasoning of the learned Judge because even if it be6 7 8 assumed that under any rule, a final approach through revision before Board of Revenue in matters dealt with under para. 25 is prohibited or not provided or the rule is silent in that behalf, the provisions in sub-para. (7) of para. 25 make it amply clear that the Board of Revenue can "at any time of its own motion or otherwise call for the records of any case or proceedings, "Under this paragraph" which is pending or in which a Collector or Commissioner has passed an order, for purpose of satisfying itself regarding correctness, legality or propriety of such proceeding or order.
42. Thus, while upholding the view expressed in the cases of Khuda Bakhsh and Mst. Shher Bano to the extent that a prior decree for recovery of rent is not L essential for filing a suit for ejectment of a tenant on ground of his being a defaulter in payment of rent, we, with respect, have not been able to accept M the view expressed in the case of "Mst. Shher Bano" that the Board of Revenue has no revisional jurisdiction in these matters.
43. ' At the same time, as held above, we are unable to uphold the view taken by the learned Member, Board of Revenue in the case of Akbar nor the view taken by the Lahore High Court in the present case as also earlier mentioned case of Ghulam Rasul. And further, it may also be mentioned here that in the case of Mst. Maryam Sultana v. Noor Muhammad it was held that without seeking the recovery of rent as an independent relief a landlord could seek ejectment of the tenant if otherwise it was established that a default in payment of rent had taken place. It appears that the decisions of the Board of Revenue in the cases of Mst. Maryam Sultana" (1963) and Aurangzeb (1966) were not brought to the notice of the learned Member, Board of Revenue who decided the case of Akbar (1980).
44. ' With the foregoing remarks about the case-law, this appeal as already 'held, is allowed. There shall be no order as to costs. PLD 1980 Lah. 353 PLD 1980 Rev, 7 PLD 1980 Rev. 7 5 Pb. Rec. 1896 (Rev.)
45. PLD 1966 W. P.) Rev. 163 1982 C L, C 1404 N L, R 1980 Rev. B 0 R 152 1983 CLC 2005 PLD 1963 (W. P.) Rev. 48