P L D 1983 Peshawar 27 (PLP)

SARDAR FAKHRE ALAM, J.--‑By this constitutional petition Shamshad and his two bothers sons of Sahibul Haq, have sought a declaration to the effect that the judgments and decrees of respondents Nos. 2 to 5 (the revenue Courts) holding the petitioners to be tenants of the land in suit, defaulters of rent and, therefore, liable to be ejected, are without lawful authority and of no legal effect.

2. Briefly stated the facts relevant for the disposal of this writ petition are that Mian Abdur Rehman respondent No. 1, moved the Assistant Collector Ist Grade, Malakand Agency Dargai (respondent No. 2) in the year 1974 for the ejectment of the petitioners. his tenants, who had defaulted in payment of rent. It was the case of the landlord respondent No. 1 before the trial Court that he had given 10J Jaribs of land to the petitioners on lease at the lump sum rate of Rs. 1,600 per annum in the year 1971. The lessees paid only Rs. 800 in the first year and the rest of the lease amount is outstanding against them. He, therefore, prayed for the recovery of three years of arrears of rent and the ejectment of the tenants from the suit land. The suit was contested by the tenants and on the averments of the parties following five issues were framed :‑ (1) Whether the relationship of landlord and tenant exists? (2) Whether the defendants are defaulters of rent? (3) Whether defendants are liable for ejectment? (4) Whether the defendants are entitled for any improvements'? (5) Relief.

3. During the pendency of the proceedings the tenants deposited a sum of Rs. 3,000 in the treasury on 19‑2‑1976 without giving any detail about the period for which they had deposited this amount. The Assistant Collector, respondent No. 2, the revenue Court, by its impugned detailed judgment dated 31‑12‑1977 decided all the issues against the tenants. They were held to be defaulters in payment of rent of the suit land of which they were in possession for the last six years and, therefore, they were ordered to be ejected under Paragraph 25 of Martial Law Regulation No.

115. The operative part of the judgment reads :‑ "The plea of the defendants that the land in suit was leased out to him at the rate. of Rs. 134 per Jarib per year is baseless because no written proof or witness has been produced in support of this. As such I consider the suit land on lease of lump sum basis for Rs. 1,600, per annum and accordingly passed a decree of Rs. 4,800, for arrears of three years commencing from 1971. Out of the total arrears Rs. 800 were paid to the plaintiff. In cash and Rs. 3,000 were deposited in treasury vide Ch. No. 6 dated 19‑7‑1976. This leave the balance of Rs. 1,000 (Rs. one thousand) against the Defendants which is to be recovered and paid to the owner (plaintiff) officially. The defendants are defaulters of rent as well as illegal possession of the suit land without any valid lease agreement. As such they are liable for ejectment under section 25 of the Martial Law Regulation No.

115. Hence they are ejected from the suit land. There are no court‑fee fixed on the plaint. I further direct that the plaintiff should make good the deficiency of the court‑fee within 30 days failing which the decree shall be liable for dismissal."

4. It will be pertinent to observe here that the suit land is situated in Malakand Agency to which the parties also belong where the tenancy as well as other laws have been applied not in the very distant past. The stand of the petitioners before the trial Court, which is evident from the written reply filed by them on 3‑7‑1974, was that they had taken the land on lease for a period of five years from Mian Abdur Rehman, landlord respondent No. 1.' They had paid two years lease money and the landlord had refused to receive the lease money for the third year; that the landlord be directed to receive the lease money for the third year and that they be allowed to enjoy the land for a full lease period of five years. Against the judgment and decree dated 31‑12‑1977, of the trial Court of Assistant Collector 1st grade, the petitioners filed an appeal before Collector Malakand before whom only the point of court‑fee was argued as is evident from his judgment dated 19‑61978. In compliance with the order of the trial Court the landlord only fixed court‑fee on the sum of Rs. 3,000 and not Rs. 4,800, the decretal amount to which he was found to be entitled. Therefore, it was argued on behalf of the tenant‑petitioners that as the landlord has not complied with the direction of the lower Court the decree be annulled and his suit dismissed. The appellate Court arrived at the finding that the operative part of the order of the trial Court was not clear which misled the landlord. Therefore, exercising powers under section 12 of the Court Fees Act, the appellate Court allowed the landlord to make up the deficiency of court‑fee. The petitioners‑tenants went in revision before the Court of Additional Commissioner, Malakand Division (respondent No. 4). There too the only question of court‑fee was argued which did not find favour with the Additional Commissioner and the revision was dismissed on 9‑6‑1971. A second revision was filed before the Bard of Revenue. Before him the question of short payment of court‑fee was not touched and only the default in payment of rent was argued. The contention did not find favour with the Senior Member, Board of Revenue and the second revision was also dismissed on 25‑11‑1979.

5. Learned counsel for the petitioners was heard at length who contended that the revenue Court had no jurisdiction in the matter; that the petitioners had not defaulted in paying the rent/lease amount to the landlord; that the appellate Court was not empowered to allow the landlord in making good the deficiency of court‑fee after the expiry of a period of thirty days allowed for the purpose by the trial Court and that as envisaged by section 25 of the N.‑W. F. P. Tenancy Act, 1950, first a decree for the arrears of rent is to be obtained by the landlord and only then the tenant can be ejected in case the decree for arrears of rent remains unsatisfied.

6. Elaborating the first contention the learned counsel for the petitioners submitted that the petitioners were the lessees and not the tenants of the suit property and therefore the revenue Court had no jurisdiction in the matter.

7. The contention lacks substance for two‑fold reason. Firstly clause (f) of the cases elaborated in second group to section 49 of the N.‑W. F. P. Tenancy Act mentions the suit of the present nature which is triable by the Revenue Courts. It reads :‑ "(f) any other suit between landlord and tenant arising out of the lease or conditions on which a tenancy is held." Secondly as has already been observed earlier, the land is situated in Malakand Agency where no regular revenue record is kept. As is the present case most of the transactions between the parties take place orally. From the material on record it can be positively affirmed that the suit land was given to the petitioners to tenant the same on the payment of yearly cash rent. Besides before none of the forums the appellate or the revisional approached by the petitioners the objection to the jurisdiction of the revenue Courts was raised. The trial Court as well as the last revisional Court before who the question of default in payment of rent was argued, arrived at the concurrent finding that the petitioners had defaulted in payment of rent an they were liable to ejectment. This question was not agitated before the appellate Court as well as the first revisional Court. No misreading o evidence or non‑consideration of material evidence could be pointed out b the learned counsel so as to warrant interference with the concurrent finding of facts.

8. The deficiency in payment of court‑fee was brought to the notice of appellate Court by the petitioners themselves on which the appellate Court ordered the landlord to make the deficiency under subsection (2) of section 12 of the Court Fees Act. The operative part of order of the trial Court reproduced here before in the earlier part of the judgment does create confusion as to the amount on which the court‑fee was to be paid. The appellate Court in the circumstances was perfectly justified to hold that the default in the payment of proper court‑fee was not wilful and the same be made good during the pendency of. the appeal. In a case reported as "Mst. Bakht Bhari and others v. Rab Nawaz and others (1968 S C M R 714). It has been observed that the High Court in appeal was competent to grant period for making up the deficiency in the court‑fee. In another case Rachappa Subrao Jadhav Desai v. Shidappa Venkatao Jadhav Desai (A I R 1918 P C 188), the honourable Judges were pleased to hold :‑ "The Court Fees Act was passed not to arm a litigant with a weapon of technicality against his opponent but to secure revenue for the benefit of the State. It is not competent to a defendant in a suit to utilise the provisions of the Act at the appellate stage, not to safeguard the interests of the State, but to obstruct the plaintiff i.e. he cannot contend that the Court wrongly decided to the detriment of the revenue, but that it dealt with the case without jurisdiction." Furthermore the objection with regard to the deficiency in payment of court fee was not at all raised before the Member, Board of Revenue in the second revision petition which Court is the final Court as far as the revenue matters are concerned.

9. The argument that the landlord had first to obtain a decree for arrears of rent and in case it remained unsatisfied then and only then the petitioners could have been ordered to be ejected, does not correctly interpret, the law on the subject. Under section 24 of the N.‑W. F. P. Tenancy Act 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, as only the revenue Court under clause (c) of the second group to section 49, has the jurisdiction in the matter viz., suits by landlord to eject a tenant. However, if a decree for an arrear of rent remains unsatisfied the decree holder can move a revenue officer under section 26 of the Act ibid to have the tenant ejected. The distinction between the two provisions as envisaged by the law is that al landlord can seek the ejectment of the tenant by moving the revenue Court under section 24 of the Act ibid 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, can seek the ejectment of the tenant under sections 26 and 27 of the Act ibid. In the former case it is Revenue Court which can grant the relief while in thel latter eventuality a Revenue Officer is also competent to eject the tenants. The stand of the petitioners before the trial Court was that they had been given the suit land for a period of five years in the year 1971 and as at the time of suit only three years had expired, they be allowed to remain in occupation of land on the terms and conditions agreed upon for another period of two years. However, even after the lapse of eleven years they are still in possession of the suit land which according to their own stand is hardly justifiable.

10. For the reasons aforesaid we are of the view that this petition lacks merit and as such the same is dismissed with costs. In pursuance to the order of this Court the petitioners have been depositing the due yearly rent in Court to which Mian Abdur Rehman, Landlord respondent No. 1 is entitled, who may receive it from the office on written request, S. Q. Petition dismissed.