1. ' The decision in this case will apply to the following five revision petitions involving a common point in issue
(1) Revision No, 41/19,6-77.
2. ' Abdul Rehman v. Khawaja Muhammad Khan, etc.
(2) Revision No, 42/1976-77.
3. ' Abdul Aziz v. Khawaja Muhammad Khan. Etc.
(3) Revision No, 43/1976-77.
4. ' Abdul Khaliq v. Ahawaja Muhammad Khan, etc.
(4) Revision No, 44/1976-77.
5. ' Akram v. Muhammad Huma,un Khan, etc.
(5) Revision No, 45/1976-77.
6. ' Umar Bar v. Muhammad Humayue Kb" etc. ' This is a revision petition presented today for bearing. It has originated from the order of the Assistant Collector 1st Grade, Charsadda dated 4-2-1975. In that Court, the case for recovery of lease money and ejectment was instituted by Khawaja Muhammad Khan respondent. When the other party was summoned, and submitted a written statement, it was ordered to deposit in Court the arrears of lease money before defending the suit. This was done at the instance of the plaintiff who had presented an application that the defendant was adopting delaying tactics in the payment of lease Money. It was not stated therein that the tenant was going to dispose of the property or run away or remove the property from the jurisdiction of the Court as is envisaged in Order XXXVIII, rules 1-5 of the C. P. C. In passing this order, the learned Assistant Collector 1st Grade has relied upon the judgment of the Board of Revenue, dated 26-124973. An appeal against this order was made to the Collector Peshawar who vide his order dated 25-9-1975 upheld the interim order of the Assistant Collector let Grade, Charsadda, but reasons were not advanced to show that there existed any provision of law on the basis of which the Interim order of this type could be upheld. Thereafter, the petitioner came with a revision petition before the Additional Commissioner, Peshawar who also upheld the original order on the same basis without discussing the legal aspect of the case vide his order dated 20-7-19/6. The learned Additional Commissioner, merely relied upon the above-quoted judgment passed by the Board of Revenue. This is now a second revision in this Court against the original order of the Assistant Collector 1st Grade dated 4-2-1975 as well as the orders passed by the Collector and Additional Commissioner in appeal and revision dated 25-9-1975 and 20-7-1976 respectively.
7. ' The learned counsel for both the parties are present and their arguments have been heard.
8. A preliminary objection was raised by the learned counsel for the respondent that the stay order was issued by this Court on 7-8-19 6 which was operation till 19th October, 1976 and that therefore it should not have remained operative. The order sheet has been perused. The order dated 19-10-19 6 and also 11-11-1976 show that parties with their counsel were present but the original file of the Court of the Extra Assistant Commissioner, Charsadda which forms the basis of the case was not available and therefore, the revision petition could not be heard. It therefore implied that the stay order dated 7-8-1976 which was to remain operative till 19-10.1976 was to be considered operative as it was not specifically withdrawn. In other words, no circumstances existed on the basis of which it could be presumed that the stay order remained inoperative after 19-10-1976. Therefore, this preliminary objection is overruled.
9. It appears that the Board of Revenue has vide its judgment da 26-12-1973 passed an order that before contesting a suit for produce an ejectment a tenant should deposit the money equivalent to the share of produce of the landlord in the Court as security and then produce defence in Court, and failing to do so, his defence shall be struck off. This view of the Board of Revenue does not find support of any law or rule on the subject. The N.-W. F. P. Tenancy Act, 1950, does not in any of its section lay down any such condition or clause which empowers the Revenue Court to pass such an order against the tenant. In other words, there is an provision in the Tenancy Act for ordering the tenant to deposit the arrest of rent as security in the Court before entering upon his defence.
10. It is the privileged right of every person to defend himself under the law whether he is a tenant or otherwise and exercise of such a right has not been made "conditional". Therefore, a tenant cannot be ordered to fulfil certain conditions and then defend himself. It will in other words be preventing him from persuing his case and exercising his right to defend himself.
11. ' The learned counsel for the respondent has argued that the judgment of the Board of Revenue of 1966 passed by I. U. Khan was quite authoritative for this Board of Revenue to rely upon in making a decision in 1973 an 1976 vide its judgment dated 26-12.1973 in case of Sher DR etc. v. Mufti Muhammad Abbas Rhan etc. And dated 22.6-1976 In case of Mir Muhammad etc. v. Muhammad Nasir Khan etc. The judgment of the Board of Revenue of 1966 has been perused. That was a collective order passed in 47 appeals in which the tenants were contesting a notice of ejectment and the Court desired under those special circumstances then prevailing in the District of Mardan that those tenants as a class should deposit the arrears of rent in Court before defending themselves. The main idea behind this order seems to be that the tenant should come to the Court as a plaintiff with clean hands without being a debtor and thereafter contest the suit. Therefore the judgment which was passed under peculiar circumstances has no bearing or application in the present case where the tenant has appeared as a defendant and has disputed the rate of rent only and, thus should not be deprived of his right of pursuing his case in support of his contention.
12. ' As far as the application of the Order XXXVIII, rules 1-5 and 12 is concerned, that applies to different conditions concerning appearance and intention to destroy or dispose of or remove the property from the Court's jurisdiction, which circumstances are not applicable in the present case.
13. In short, therefore, it is neither in the Civil Procedure Code nor in the N.-W. F. P. Tenancy Act, 1950 that any such provision exists which can empower a Revenue Court to stop a tenant from defending himself unless he fulfils the particular condition as is envisaged in the impugned order under revision. Therefore, this order is not correct in the eyes of law and is vacated. The Assistant Collector 1st Grade, Charsadda is directed to proceed with the case and allow the defendant- petitioner to produce his evidence in the Court. Pasties to bear their own costs.