FAZAL ELAHI KHAN, J.--In this Writ Petition, Major Sher Bahadur and his wife (hereinafter to be referred as the landlords have challenged the judgments and orders of respondents Nos.l and 2 whereby their appeal and revision against the judgment and order of respondent No.3 decreeing the respondent's suit for vacation of notices of ejectment served on them were dismissed and the petitioners herein were directed to seek their remedy in a Revenue Court.
2. Facts of the case giving rise to this writ petition, briefly stated, arc that the petitioners purchased the suit land measuring 473 Kanals 3 Marlas bearing Khasras Nos.424 to 441, 443 to 454, 829/456/458-459, 403, 855/472-473, 454, 474 to 478 and 467 situated in village Chamter District Mardan through Mutation Nos.38 and 39 attested on 13-5-1964 from the wife of one Nawabzada Muhammad Munir Khan. Before the sale in question the respondents were cultivating it on payment of half Batai to the previous landlords and then got it on lease at the rate of Rs.120 per Jarib per annum. After its purchase and expiry of the period of lease the petitioners asked the lessees to settle the terms and conditions of lease if they wanted to remain in occupation of the land as their tenants. The respondents, however, denied to enter into a new lease agreement and insisted on payment of lease money at the old rate. They also refused to surrender possession of the land to the landlords. Feeling dissatisfied with the attitude of the lessees the landlords brought a civil suit for possession of the land in the Court of Civil Judge Mardan assuming that on termination of the lease period and the lessees' refusal to enter into afresh agreement, their further stay on the land amounted to trespass entitling the landlords to a decree for possession by the Civil Court. The defendant-lessee, however, resisted that suit on several legal and factual pleas including that of lack of jurisdiction of the Civil Court to adjudicate in the matter. After recording evidence of the parties, the objection to jurisdiction of the Civil Court did not prevail with the learned trial Judge hence decreed the plaintiff-landlords suit. The judgment and decree of the trial Court was affirmed in appeal and revision respectively by the learned District Judge and the learned High Court. The defendants then appealed against the judgment and order of the learned High Court in the Supreme Court of Pakistan. Their Lordships of the Supreme Court on acceptance of the appeal set side the judgments and orders of the Courts below and dismissed the plaintiffs suit for want of jurisdiction of the Civil Court in the matter.
3.Having failed in getting the relief claimed from the Civil Court the petitioners herein served the respondents with notices of ejectment under section5(b) of the N.-W.F.P. Tenancy Act, 1950 (hereinafter to be referred as the Act). Respondents 4 to 29 instituted 26 independent suits in which they contested their liability for ejectment under section 28(7) of the Act. The landlords in their joint written statements contested the suits. The learned Revenue E.A.C. Who had taken cognizance of the matter after recording evidence of the parties vide his judgments and orders dated 31-10-1982 decreed all the suits and declared the notices of ejectment served on the tenants vacated. The petitioners' appeal before respondent No.2 and their revision petition before respondent No.l also failed. The petitioners/landlords having been left with no other remedy have approached this Court in Constitutional jurisdiction.
4. The judgments and orders of respondents Nos.l to 3 have been sailed before us on the grounds that the Courts below have misread the evidence of the parties, that they have misunderstood and misinterpreted the judgment of the Supreme Court of Pakistan and have misapplied the law to the facts of the present case. It was contended that there was overwhelming oral as well as documentary evidence and it was also admitted by the respondents, herein that they were the lessees of the land in suit on behalf of the predecessor-in-interest of the petitioners at the time of sale made in their favour. Such being the case the landlords had rightly served the lessees with notices for their ejectment as provided under the law. That there was no legal justification for respondents 1 to 3 to have declared such notices vacated. It was further contended that the respondents were not entitled to hold the land without the consent of the landlord on the facts and circumstances of the case. It was lastly contended that sections 25, 26 and subsection (7) of section 28 read with section 49 of the Act entitled the petitioners to a decree for ejectment of the lessees in the suit filed by the respondents contesting their liability to ejectment. The determination of compensation for the alleged improvement made by the lessees in the land in their respective possession, was also challenged to be illegal and without jurisdiction.
5. The learned counsel representing the respondents raised a technical and legal objection that a single writ petition against 26 independent judgments and orders of respondents 1 to 3 was incompetent. On merits of the case the learned counsel adopted the arguments which had prevailed with respondents 1 to 3 in passing the impugned judgments and orders.
6. The existence of relationship of landlord and tenant between the parties is not denied and for the reasons their Lordships of the Supreme Court of Pakistan directed the landlords to approach the Revenue Court that has alone the jurisdiction to adjudicate in the matter. It was in pursuance of that order that the landlords served notices of ejectment on the tenants on grounds common to all of them and prayed for their ejectment. The tenants, however, instituted 26 independent suits against their landlords resisting their ejectment on such grounds. The same issues were framed in all these cases and somewhat the same evidence was led by both the parties in all of them. The learned trial Court decreed these suits by the same judgment excepting minor variance in the names of the plaintiffs in his judgment. The learned revisional Court also disposed of 26 revision petitions by a common judgment and order impugned in this writ petition. Such being the case we .Find no force in the objection to the competency of the writ petition under Order 1 rule 3 of the Code of Civil Procedure, which is applicable to writ matters, as in all the cases the landlords are the same, the respondents have common character as tenants and the legal and factual controversy raised is common to all of them.
7. On merits of the case the respondents have failed to controvert the factual aspect of the case set up in the petition on their failure to file written statement but their counsel relied on the Supreme Court judgment with special reference to that part of it and the observations made therein to support the judgments and orders of respondents 1 to 3.
8. After hearing the learned counsel for the parties and going through the record with their assistance we find that it stands established that the respondents were holding the land as lessees since long it was purchased by the petitioners. The landlords after the expiry of the period of lease earlier fixed approached them to re-settle the terms and conditions of (case, as already stated, but when they refused that led to the filing of civil suits by the landlords and decree in their favour.
When the judgment and decree passed by the civil Court in favour of the landlords ultimately came for consideration before the Supreme Court of Pakistan and the judgment of the Civil Court was challenged in the matter under Section 49(3) of the N.-W.F.P. Tenancy Act read with Section 25 of the Land Reforms Regulations 1972, providing protection to tenants from ejectment their Lordships observed as follows:- "We are, however, at the moment not concerned with that aspect of the case. But it appears that the High Court has not considered that para of M.L.R. 115, now Land Reforms Regulation 1972, which overrides all other provisions of law, on the subject. We are, therefore, of the view that these matters should have been disposed of by the Revenue Courts, who have the exclusive jurisdiction to do so, because any contest about the mode of payment, would not lead the tenants to be considered as trespassers and respondents Nos.l and 2 have admitted that they are their tenants and the appellants have also accepted their position as such. Whether the tenants are liable to pay cash rent and for how long or whether they are liable to pay rent on Batai basis are the questions, which are to be determined by the Revenue Courts and not by the Civil Court." It was finally held as follows:- "In the instant case the remedy of the landlords lay in the ejectment of the tenant, through a competent Revenue Court and not otherwise, under the existing circumstances."
9. It was after the judgment of their Lordships that the landlords served the tenants with notices for ejectment under sub-clause (b) of section 25 read with section 26 of the Act which reads as follows:- Section 25 "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.
Section 26.
"In any case as is mentioned in clause (a) or clause (b) of the last foregoing section, and subject to provisions of section 23, 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."
10. To contest their liability the tenants instituted the aforementioned suits under subsection (7) of section 28 of the Act which were duly contested by the landlords. After framing issues in the case and recording evidence of the parties the learned Revenue E.A.C. While discussing issues Nos.1, 3 and 4, framed in the suit, held that a tenant can be ejected from his tenancy on the grounds set out in section 24 of the Act and the burden would lie on the landlords to substantiate such grounds.
11. In order to appreciate the argument of the learned counsel for the I parties it is pertinent to point out that tenants other than occupancy tenants, broadly speaking, are of two categories as envisaged by sections 23 and 24 of the Act i.e. Tenants holding for a fixed term under a contract, decree or order of a competent authority who can be ejected either on the expiry of that term or before the expiry of the term on any of the grounds given therein (section 23 of the Act). Tenant who does not hold for a fixed term under a contract, decree or order of a competent authority falls in the second category who can be ejected 1 after the expiry of three years from the commencement of the Act, which period has since expired and before that on any of the grounds given in Section 24 of the Act. Section 25 of the Act further provides that a tenant cannot be ejected from his tenancy otherwise in execution of a decree for ejectment, however, there are two exceptions to such bar. Firstly, when a decree for areas of rent remains un--satisfied against the tenant and secondly, if the tenant falls within the second category i.e. That he does not hold the land for a fixed term under a contract, decree or order of a competent authority. From reading of sections 24 and 25 of the Act, it is crystal clear that the tenant of the second category i.e. Who is governed by Section 24 can be ejected otherwise in execution of a decree. .
12. The procedure for ejectment of a tenant who does not hold for a fixed term under a contract can be found under sections 26, 27 and 28 of the Act which does not provide for any other ground to be proved by the landlord for seeking ejectment of his tenant than to prove that he was not governed by section 23 of the Act. Admittedly in the present case the tenants who are not holding the land for a fixed term their cases fell within the ambit of Clause (b) of Section 25 which has been reproduced above. There being available the remedy for seeking ejectment through an application under the law the landlords were not required to file regular suit for ejectment of their tenants in the Revenue Court. Such being the case no legal objection could be raised to the procedure adopted by the landlords for seeking ejectment of their tenants by making an application to the Revenue Officer for service of notices of ejectment on the tenants. The Revenue Officer after having found landlords' application in order and not open to any objection, in performance of his legal duties rightly served notice of ejectment on the tenant under subsection (1) of Section 28. The tenants on receipt of the notices mentioned above in order to contest their liability to be ejected followed the legal course open to them by instituting the aforementioned suits in the Revenue Court under subsection (7) of Section 28 of the Act. In all these suits both the parties were given fair opportunity of leading their evidence in respect of the respective pleas raised in their pleadings. It was thereafter incumbent upon the trial Court to have judicially determined the issue regarding the tenant's liability to be ejected under clause (b) of Section 25 read with section 28 of the Act and any other law applicable to the cases if it debarred the landlords from ejecting his tenants. The finding of the Revenue Court that the landlord was to prove the grounds for ejectment, in view of the above provisions of law, appears to be erroneous.
13. The findings of respondents 1 to 3 that after the judgment of the Supreme Court of Pakistan, referred to above, the only remedy available to the landlords was to approach the revenue Court if they want to seek ejectment of their tenants by filing a regular suit and not by making an application to the Revenue Officer as they did in the instant case. These findings on the face of the record are misconceived. We have already reproduced the relevant portion from the judgment of their Lordships which mainly dealt with the existence of relationship of landlord and tenant between the parties with special reference to the ouster of jurisdiction of the civil Court in the matter. It was further observed that all the disputed questions arising between the parties out of such relationship are to be adjudicated upon by the forum of competent jurisdiction. Any other observations in the judgment are merely in support of the conclusion reached stated above. We are not inclined to agree with the learned counsel for the respondents that their Lordships have in any manner curtailed the landlords' statutory right of seeking ejectment of their tenants otherwise then through a regular suit for ejectment in the Revenue Court even if such right is available under the statute. It may further be clarified that the tenants who did approach the Revenue Court by instituting regular suits to contest their liability to be ejected and the controversy raised did indirectly came for determination by the Revenue Court to which no objection could be raised.
14. We are aware of the bar on ejectment of tenant under paragraph 25 of the Land Reforms Regulation which even is applicable to the tenant of the second category which overrides all other laws including the N.-W.F.P. Tenancy Act. However, the Land Reforms N.-W.F.P. (Amendment)
Ordinance, 1981 amendment has been made in the definition of tenant given therein whereby lessee has been excluded to be a tenant as defined. After the amendment Clause 13 of Section 2 of the Regulation is re-cast as follows:--
(13) tenant `means' a person who holds land under another person and is or but for a special contract would be, liable to pay rent for that land to that other person and includes the predecessor and successor-in-interest of such person; but does not include:
(a) ..................................................
(b) ..................................................
(c) ..................................................
(d) a lessee, whether cultivating the land himself or through another person.
In the circumstances when the respondents herein were admittedly the lessees of the land the provision of paragraph 25 of the Land Reforms Regulation is of no help to them. There is also no force in the arguments of the learned counsel for the respondents that the amendment mentioned above had no retrospective operation. This question came for consideration in an unpublished judgment of the Supreme Court of Pakistan (C.P.No.133-P of 1983 Ramzan Ali v. Fazli Qadir and another decided on 14-5-1984, in which it was held that the definition was to be read "as part of the original Parent Regulation." This judgment was further affirmed by the Supreme Court of Pakistan in Bakhtawar Shah v. Member, Board of Revenue 1985 SCM R 348. Nevertheless lessee is a tenant as defined in the N.--W.F.P. Tenancy Act and he would be subject to all the rights and liabilities available to him under the Act but he would not be entitled to seek protection from ejectment under paragraph 25 of the Land Reforms Regulation.
15. Having held that the respondents are tenants (lessees) who could be ejected otherwise than an execution of decree of the Revenue Court under section 25(b) read with sections 26, 27 and 28 of the Act and that respondents 1 to 3 have misinterpreted the judgment of the Supreme Court of Pakistan, misapplied the law and have based their judgments on wrong premises, we would accept this writ petition and declare the judgments of respondents 1 to 3 as illegal, without lawful authority and of no legal effect, and accordingly set aside the same. In consequence of the above all the 26 suits filed by the tenants contesting their liability to be ejected would be deemed pending for disposal on merits in the light of our above observation in accordance with law. As the matter is very old and it has reached the Supreme Court of Pakistan in the earlier round of litigation it would be just and proper that this be disposed of by respondent No.3 as early as possible. In the circumstances of the case we would make no order as to costs.