' ABDUR REHMAN KHAN KAIF, J.-The present constitutional petition filed by Abdur Rehman sic)
Shahbaz Khan against Mohammad Ashraf and others is directed against the order of Senior Member, Board of Revenue, N.-W. F. P. Peshawar, whereby he partly accepted the appeal lodged by the respondents, set aside the order of Additional Commissioner, Hazara, dated 26-2-1983 and restored the order, dated 16-1-1982 of the learned Collector, Abbottabad.
2. The facts of the case briefly stated are that Abdur Rehman petitioner/landlord is owner of the disputed land whereas the respondents are tenants under him. The petitioner filed a suit in the Court of Revenue E.A.C./Collector, Abbottabad -against the respondents for the recovery of rent w,e,f, Kharif 1974 to Kharif 1977 and also for the possession of the suit property through ejectment.
The learned Collector Abbottabad vide his order dated 16-1-1982 decreed the payment of rent in favour of the petitioner according to his prayer but refused to pass a decree of ejectment as prayed for.
3. The mentioned order of the Collector, Abbottabad was challenged in the Court of Additional Commissioner, Hazara Division. After hearing the parties and going through the record the learned Additional Commissioner, Hazara Division, Abbottabad accepted the appeal of the petitioner and passed the order of ejectment of the tenants in addition to the decree passed for the recovery of the rent.
4. Feeling aggrieved the respondents preferred a revision petition in the Court of Senior Member, Board of Revenue. The learned revisional Court ride its order, dated 27-10-1983, which is impugned in the present petition, partly accepted the appeal, set aside the impugned order of the Additional Commissioner, Hazara Division, dated 26.2-1983 and restored the order passed by the Collector, Abbottabad, dated 16-1-1982.
5. Learned counsel for the parties heard and record perused.
6. Learned counsel for the petitioner contended that the conclusion arrived at by the learned Member, Board of Revenue is misconceived and incorrect. His observation to the effect that "unless a decree for arrears of rent in respect of their tenancy had been passed against them and had remained' unsatisfied they should not have been ejected", does not correctly interpret the law on the subject as under section 24(a) of the N.-W. F. P. Tenancy Act, a tenant can be ejected who failed to pay rent on due date by moving the Court under section 49 of the Act ibid. He accordingly contended that the tenants having been proved defaulters, the learned Additional Commissioner was justified in passing the order of the ejectment of the tenants along with the order of payment of rent. Reliance in this connection was placed on PLD 1983 Pesh. 27, PLD 1984 SC 227 and PLD 1980 Rev. 53,
7. Learned counsel for the respondent on the other hand contended that no clear default having been established in the trial Court, the request for ejectment was refused by the trial Court for valid reasons. In this connection he made a reference to the earlier ground of litigation between the parties and to the judgment dated 6-11-77 by the Board of Revenue. Developing his argument further he admitted that the Courts concerned having jurisdiction to decide question in controversy between the parties cannot be said to have acted illegally or without jurisdiction or even with material irregularity merely because it came to an erroneous decision on a question of fact or even of law and this fact alone will not render such decision as without lawful authority.
Reliance was placed on PLD 1974 SC 139. He accordingly submitted that although the impugned judgment was legally and factually correct yet even, if it is considered erroneous, this Court will not examine the finding maticulously and substitutes its own finding in place of the Court concerned.
8. On going through the judgment of the Collector, Abbottabad, dated 16-1-1982 it becomes clear that the tenants (respondents-herein) had been found defaulters but partly for equitable and partly for some extreneous considerations he deemed it proper not to pass order of ejectment but considered it proper to pass a decree only for the recovery of arrears of rent outstanding against the respondents from Kharif 1974 to Kharif 1977. When the order was challenged in appeal, the learned Additional Commissioner, Hazara Division, held that the tenants having been found defaulters had no right to hold the land in view of the provision of section 24(a) of the N.-W. F. P.
Tenancy Act, 1950. He accordingly on acceptance of the appeal passed the order for the recovery of the rent as well as for the ejectment of the tenants.
9. In the revision filed by the tenants, the learned Senior Member, Board of Revenue, N.-W. F. P.
Peshawar took a different view. The order of the Commissioner was set aside and that of the Collector, dated 16-1-82 was restored. It was held that unless a decree for recovery of rent is passed against the 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 in the ground of the non- payment of rent, the landlord was to file two Revenue suits one after the other. One for the recovery of the rent from the tenant. If he succeeded in the 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 which could be decreed against the tenant on the basis that the earlier decree for the recovery of rent passed against him in favour of the landlord, remained unsatisfied.
10. The provisions which would need examination are sections 24, 25, 26, 27 and 49 of the N.-W. F. P.
Tenancy Act.
' Section 24 reads : "A tenant who does not hold for a fixed term under a contract or a decree or order of any competent authority, may be ejected at the end of the third year from the commencement of the tenancy and not before and on any of the following grounds, before the expiration thereof, namely :
(a) that he has failed to pay the rent on the date when it falls due;
(b) that he has removed the whole or part of the produce from the threshing-floor before it is divided ; (c)that he has used the land comprised in the tenancy in the manner which renders it unfit for the purposes of which he held it;
(d) where the 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 the land is situate: It becomes evident that under clause (a) of subsection (1) of section 241 the order of ejectment could be passed if default in payment of rent hadA taken place.
11. Section 25 ibid containing the provision regarding restrictions on ejectment reads "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 does not hold for a fixed term under a contract, or a decree or order of competent authority."
The mentioned provisions clearly lays down that a tenant can be ejected through execution of a decree for ejectment and when a decree B for an arrear of rent in respect of his tenancy has been passed against him and remains unsatisfied.
12. Under section 24 of the Act ibid a tenant can be ejected who fails to pay rent on due date by moving the Revenue Court under section 49 of the Act ibid and only the Revenue Court under clause "C" of the second group to section 49 has the jurisdiction in the matter. However, if a default for an arrear to rent remains unsatisfied the decree-holder can move a Revenue Officer under section 26 of the Act to have the tenant ejected. The distinction between the two provisions as envisaged by the law is that a landlord can seek the ejectment of the tenant by moving the Revenue Court under section 24 of the Act in case the tenant fails to pay rent on due date and only the Revenue Court is competent to pass the ejectment decree while a landlord who had obtained a decree for arrears of rent and the same remains unsatisfied, by moving the Revenue Officer he can seek the ejectment of the tenant under sections 26 and 27 of the Act ibid. In the former case it is the Revenue Court which can grant the relief while in the latter eventuality a Revenue Officer will also be competent to eject the tenant in accordance with the provision of sections 25 to 27.]
13. The above-mentioned view is based on the decision of a Division Bench of this Court in case Shamshad and 2 others v. Mian Abdur Rehman and 4 others (1). A similar view was taken in a case under the Punjab Tenancy Act reported as Altta Muhammad v. Saraj Begum etc. (2).
14. The stand taken by the tenant that they were prepared to pay the rent and that in a similar case decided by the Board of Revenue between the parties is 1977 they were not held defaulters has no force for the reason that in spite of the previous litigation they have remained in possession since long and were still found defaulters in payment of rent. A somewhat similar matter came before their Lordships of the Supreme Court in a case reported as Lucas alias Luci and others v. S. M. Nasi a, Member (Revenue), Board of Revenue, Punjab, Lahore and another (3) under the
(1) PLD 1983 1esh. 27 (2) PLD 1984 Rev. 53
(3) PLD 1984 SC 227 ' Punjab Tenancy Act where the finding arrived at in Mst. Maryam Sultana v. Noor Muhammad (1) was upheld to the effect that without seeking the recovery of rent as an independent relief a landlord could seek the ejectment of the tenant if otherwise it was established that a default in payment of rent had taken place. In the same judgment a reference was also made to the decision of Peshawar Board of Revenue in a case reported as Noor Ahmed Shah and 2 others v. Ainanullah Khan and 2 others (2). The view taken in that case was that the ejectment would depend upon the circumstances of each case and it was not necessary to examine the question whether on proof of default in payment of rent any discretion is left with the Court to refuse ejectment, if the same is sought by the landlord. But so far as the joining of the relief, one for the recovery of rent and the other for the ejectment of the tenant in the same suit is concerned, it was found in accordance with law.
15. In above-mentioned authority of the Supreme Court, their Lordships while interpreting the relevant law involved in that case observed that a landlord can straightaway seek ejectment of a tenant who had committed default in payment of rent, as provided in ground (a) of para. 25 (1) of the Land Reforms Regulation, 1972. It was accordingly held that joining of the two reliefs one for the recovery of rent and the other for ejectment of tenant in the same suit were in accordance with law. The view that the tenant-at-will cannot be ejected without the landlord first obtaining a decree for arrears of rent and than seeking his ejectment in an independent proceeding was not approved of.
16. In view of the discussion made above the view taken that the landlord had first to obtain a decree for arrears of rent and in case it remained unsatisfied then and then only the respondent could have been ordered to be ejected does not, in our view, correctly interpret the above- mentioned provisions of law on the subject.
17. For the reasons stated, this constitutional petition is, therefore, allowed to the extent that the order of the learned Senior Member, Board of Revenue, dated 27-10-1983 is set aside with the result that the order passed in appeal by the learned Additional Commissioner, Hazara Division, Abbottabad, dated 26-2-83 to the effect that the petitioner is entitled to the decree of ejectment alongwith the recovery of rent is revived. There will, however, be no order as to costs. partly.
(I) PLD 1963 (W. P.) Rev. 48 (2) PLD 1984 Rev. 5