1. Learned counsel for both the parties are present and have been beard in this Revision petition presented today against the judgment and decree of the Additional Commissioner, Peshawar, dated 16-5-1978 by which not only a decree for produce passed by the Collector was maintained but also the decree for ejectment was passed against the petitioners.
2. The history of the case is that Kaki Jan predecessor of respondents Nos. 1 to 9 and Abdul Hakim respondent No, brought suit against Noor Ahmad Shah and Ahmad Shah in respect of land measuring 9 Kanals 102 Kanals 12 Marlas and 96 Kanals 12 Marlas comprising Khasra Nos. 1350, etc. Situated in the area of village Pir Sado, Telma Mardan for the crops Rabi 1971 to Kharif 1973 alongwith their ejectment from the suit land. The Assistant Commissioner/ Collector, Mardan vide his judgment dated 29-8-1977, passed a decree of Rs, 15,098.63 against Ahmed Shah defendant and Rs 14,260.83 against Noor Ahmad Shah and in favour of respondents. However, the decree of ejectment was not granted. Against the said judgment and decree, both the parties went in appeal to the Additional Commissioner, who vide his order dated 16-5-1978 maintained the decree of produce passed by the Collector and also passed a decree of ejectment against the petitioners and in favour of respondents.
3. In this case, the learned Collector has passed only a decree for produce amounting to Rs, 15,098. 63 against Ahmad Shah, petitioner and Rs, 142,60.83 against Noor Ahmed Shah, petitioner as they were proved to be defaulters of the share of produce payable to the landlords. The Collector after going through the evidence had come to the conclusion that it was not necessary to pass a decree for ejectment therefore, he did not do so. When an appeal came before the Additional Commissioner, he not only maintained the decree for produce but also on suo motu side passed a decree for ejectment. The only reason given by him for adding the ejectment' decree was that since the petitioners were proved to be defaulters, therefore, the law in section 25(1) (a) of M. L. R.
4. 115 should have been applied in full as it provides that a tenant shall be ejected from his tenancy if it is established in the revenue Court that he has failed to pay the rent in accordance with the terms of his tenancy. The Additional Commissioner came to the conclusion that as a result of the default, ejectment was a natural corollary which should have been granted. It is admitted that no hard and fast rule or a clear cut line of action could' be drawn regarding the coupling of the two decrees of produce and ejectment as a "must" or the one automatically following the other in the case of a default of rent because the facts may be different in one case and not the same in the other. It may be the case of a dutiful tenant paying the rent for some years regularly and then incurring the default for some solid reason whereupon a decree of produce may be necessary but ejectment may be unwarranted through the circumstances of that particular case. But ;it may be necessary to eject the tenant from the land if he is a willful defaulter and he deteriorates the condition of the soil or sublets his tenancy, etc. Therefore, automatics is not the intention of the law in dealing with the case of produce and ejectment. The word "wilful" has to be weighed after eliminating exceptional circumstances. The intention for non-payment of rent should be ascertained with due care and the mala fides have to be proved. In this respect it may be quoted from the Hadith of Holy Prophet (Peace be upon him). This shows that in practical life the "intention" is of much significance and this is to be verified from the circumstances. In other words, the conduct and the intention of the person should be weighed to prove whether it was mala fide or bona fide. In nutshell, the Revision Petition is accepted and the order of the Collector dated 28-8- 1977 is upheld and that of the Additional Commissioner dated 16-5-1978 is set aside in other words, the decrees of produce for Rs, 15.98.63 and Rs, 14.260.83 stand and that of the ejectment is set aside. The decrial amount should be paid within one month from the issue of this order,