' WALI MUHAMMAD KHAN, J.--This judgment is to dispose of two Writ Petitions Nos. 595/86 and 596/86 filed by the same petitioners Samar Khan and others and arising out of the similar facts, requiring determination of the same question of law.
2. Through these Constitutional petitions, Samar Khan and others petitioners, have challenged the order dated 5-11-1986 passed by the Additional Commissioner, Peshawar Division, Peshawar whereby he, by accepting the revision petitions filed by the defendants/respondents, set aside the concurrent findings of the two Courts below and dismissed the suits of the plaintiffs/petitioners for the ejectment of the defendants/respondents from the suit property, described in the heading of the plaints, registered as Suits Nos.62/1 & 64/1 of 1984.
3. The plaintiffs/petitioners are, admittedly, the owners of the suit land and the defendants/respondents tenanting the same on payment of cash rent at the rate of Rs,70 per jareeb per annum. The Plaintiffs/petitioners through the instant suits, alleged that the defendants/respondents have failed to pay the arrears of rent to the plaintiffs/petitioners in respect of the suit land for the crops mentioned in the plaints and that they were damaging the suit property, not cultivating the same according to their wishes and were also cutting the trees without their consent and consequently prayed for their ejectment as well. The defendants/respondents contested the suits and in their written statements, controverted the allegations of the plaintiffs/petitioners in toto. Necessary issues were framed in the cases and after recording such of the evidence, as the parties wished to adduce, the learned trial Court decreed the suits of the plaintiffs/ petitioners for both the reliefs, claimed by them and awarded compensation for improvements to the defendants/respondents, as per judgments of the trial Court. The defendants/respondents preferred separate appeals to the Collector but with no success. They filed separate revision petitions before the learned Additional Commissioner who, vide his orders dated 5-11-1986, maintained the judgments of the lower forums so far as relief of arrears of rent was concerned, but set aside the order cf ejectment on the sole ground that default committed by the defendants/respondents was not wilful. Hence the present two writ petitions by the plaintiffs/petitioners.
4. We have heard the learned counsel for the parties and have perused the record of the case with their assistance.
5. There is concurrent finding of fact of the trial Court and the Appellate Court, that the defendants/respondents defaulted in the payment of rent to the plaintiffs/petitioners. The defendants/ respondents had not advanced any cogent reasons to justify the inference that the default in payment of arrears of rent was not intentional. There was no such allegation in the written statements nor any issue framed thereon, with the result that no evidence, pro and contra, the said allegation was led by the parties. The law makes no distinction between the default and a wilful default. The failure to pay the arrears of rent by the tenants to their landlord at the proper time makes them liable to eviction at the instance of the landlord under the provisions of the relevant laws. The learned lower Additional Commissioner has erred in setting up a defence for the defendants/respondents which he had not himself raised at the proper time. Otherwise, too, he should not have disturbed the concurrent finding of fact of the two Courts below whereby they had held the defendants/respondents defaulter in the payment of arrears of rent when apparently there was no jurisdictional error, material irregularity or misreading and non-reading of evidence.
6. There is yet another aspect of the case which had escaped the notice of the learned Additional Commissioner. The relationship between the landlord and tenant in respect of agricultural tenancies is governed by the provisions of N.-W.F.P. Tenancy Act, 1950 (N.-W.F.P. Act XXV of 1950) and section 49 thereof confers exclusive jurisdiction on the hierarchy of revenue Courts to decide practically all the disputes arising between them during the continuance of such relationship and the jurisdiction of the Civil Courts has been completely ousted. Sections 23, 24, 25 and 28 of the said Act provide for the ejectment of the tenants by the landlord and it is proper to reproduce these provisions for convenience sake:-- ' Section 23: Grounds of ejectment of tenants for a fixed term :--A tenant holding for a fixed term under a contract or 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;
(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 situated;
(c) on any ground which would justify ejectment under the contract, decree or order.
' Section 24. Ejectment of other tenants.--(1) 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 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 for 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 which the land is situated.
(2) No landlord, in the case of a tenant who does not hold for a fixed term under a contract or a decree or order cf competent authority, shall enhance the rent during the period that he is not entitled to eject the tenant under the last preceding subsection.
' Section; 25 Restriction on ejectment.--A tenant shall not be ejected otherwise than in execution cf decree for ejectment, except in the following cases, namely:--
(a) When a decree for an arrear of rent in respect cf 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 28: Ejectment of certain tenants by notice.--
(1) On receiving the application of the landlord in any such case as is mentioned in clause (b) of section 25, 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 (1) shall not be served after the fifteenth day of November in any agricultural year.
(3) No notice under subsection (1) shall be served on the tenant if the application of the landlord is opposed to the provisions of section 24.
(4) 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.
(5) 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.
(6) 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.
(7) 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."
7. Section 24 referred to above was amended by the North-West Frontier Province Tenancy (Amendment) Act, 1952 (Act VI of 1952) whereby the words "of the tenancy" underlined above were substituted by the words "of this Act" and its careful perusal, as amended, would make it clear that the prohibition from ejectment of the tenants, under the original text, except under certain conditions, were tactfully, done away with, thereby making the ejectment of the tenants at the sweet will of the landlord.
8. The Land Reforms Regulation 1972, however came to their rescue and afforded them protection from eviction vide Para. 25 thereof which barred their ejectment except on certain specified conditions enumerated in sub-para.1, as follows:--
25. Rights of tenants: (1) 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 cf cultivation in the locality; or
(d) sub-let his tenancy.
9. Since 'tenant' was not defined in the Land Reforms Regulation itself, therefore, the Courts had to resort to other enactments. However, Land Reforms (N.-W.F.P. Amendment) Ordinance, 1981 (Ordinance XI of 1981), for the first time, supplied the said omission and defined the 'tenant' 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 predecessors and successors-in-interest of such person; but does not include--
(a) a mortgagee of the rights of the land owner, or
(b) a person holding any land under the Federal Government, or a Provincial Government, or under any other Statutory authority, body or corporation established by any such Government, as may be notified by it in this behalf, or
(c) a person to whom a holding has been transferred or an estate or holding has been let in form, for the recovery of any arrear of land revenue or of a sum recoverable as such an arrear, or
(d) a lessee, whether cultivating the land himself or through another person."
10. The above amended provisions came up for consideration before the Supreme Court in case Bakhtawar Shah and others v. Member. Board of Revenue and others reported as 1985 SC MR 348 and their Lordships of the Supreme Court further elucidated the definition of 'tenant' and while giving retrospectivity to the Land Reforms (N.-W.F.P. Amendment) Ordinance, 1981 (Ordinance XI of 1981) held that the tenants paying cash rent to the landlords whether cultivating the land themselves or through others, were lessees and not tenants as per the amendment of (N.-W.F.P.
Ordinance XI of 1981) referred to above. No doubt, it was a case of pre-emption but the right of pre- emption, as first right, was conferred on the tenant by the very provisions cf para.25, of Land Reforms Regulation 1972 and, therefore, the pre-emptor in that case, being a lessee was denied the right of pre-emption. As such the lessee, being deprived from the benefits available to the other tenants, cannot claim protection from eviction under para. 25 sub-para 1 of Land Reforms Regulation 1972, with the result, that for his ejectment, the original provisions of Tenancy Laws have revived. As discussed above the defendants/respondents being lessees of the suit land cannot claim protection under para. 25, sub-para. 1 of Land Reforms Regulation, 1972. The suits for their` eviction are governed by the provisions of N.-W.F.P. Tenancy Act, 1950 and there is no bar for their ejectment being tenant-at-will/lessee, so much so, that the landlord could secure their eviction, by filing D an application to the Revenue Officer under section 28 of the said Act. The only relief they were entitled to under the tenancy laws, is their claim for compensation for improvements, if made during the continuance of their tenancy, which has already been awarded to them.
11. The upshot of the above discussion is that the impugned orders of the learned Additional Commissioner, dated 5-11-1986 are against the substantive provisions of relevant laws and are based on wrong and illegal exercise of jurisdiction. Consequently we accept both the writ petitions, set aside the impugned judgments and decrees of the learned Additional Commissioner dated 5- 11-1986 and restore those of the trial Court dated 23-9-1984 and Appellate Court dated 29-6-1985, with the result that the suits of the plaintiffs/petitioners stand decreed for arrears of rent as well as ejectment, on payment of compensation for improvements to the defendants/respondents as ordered by the trial Court. In view of the complicated questions involved, parties are left to bear their own costs.