1993SCMR897 (PLP)

MUHAMMAD AFZAL ZULLAH, CJ.‑‑‑These appeals through leave of the Court have arisen out of a tenancy dispute between the appellants (the tenants' side) and the respondents (the landlords' side). The order for grant of leave to appeal reads as follows:, "The petitioners in the above‑noted petitions seek leave to appeal against the judgment of the Peshawar High Court dated 21‑i‑1990, whereby Writ Petitions Nos. 164 and 165 of 1988 filed by the petitioners against the respondents, were dismissed. "The petitioners in these petitions are the lessees of the land in dispute while the respondents are their landlords. The respondents filed an application before, the Revenue Officer, Mardan for issuing notice of ejectment of the Petitioners from the disputed land which was issued on 10‑11‑1981 asking the petitioners to vacate the land and if they have any objection, they should file a regular suit. The petitioners filed a regular Suit No. 112/1 of 1981 before the Revenue EAC, Mardan which was accepted and they were held to be not in default in rent. "The landlords/respondents filed appeal against this order which was dismissed on 27‑1‑1985. Thereafter the respondents filed a suit against the petitioners, for the recovery of produce in respect of crops Kharif 1981 to Kharif 1984. The petitioners contested this suit on various grounds, mainly on the point of res judicata that the crops for which default was made the basis of ejectment had been found against the respondents in the former suit. The learned Assistant Collector after recording the evidence passed a decree for the recovery of produce and ejectment against the petitioners on 28‑1‑1987. Appeal and revision of the petitioners were both dismissed. Subsequently their constitutional petitions before the High Court were also dismissed by the judgments impugned in these two petitions. "We have heard the learned counsel for the petitioners who mainly contended that the ejectment of the petitioners on the basis of default for a period of Kharif 1981 to Rabi 1984 is not proved. He produced the receipts D.W.1/1 to D.W.1/3 which shows that the lease money was properly paid for the disputed period of Kharif 1981 to Rabi 1984. Thus according to the learned counsel the payments so made of the disputed harvests would not make the petitioners/tenants as defaulter and their ejectment on this ground was unwarranted. This point in our view needs further consideration. Leave to appeal is granted in both the petitions. Status quo is to be maintained in meanwhile." Two arguments have been pressed by the learned counsel for the appellants with vehemence. One, the second round of proceedings initiated by the respondents side were barred by res judicata; and secondly, that even on merits the produce for the disputed period not having been received by the respondents' side despite offer the amount concerned therewith was deposited with the sanction of the authority concerned. After examining the record we are satisfied, as held by the High Court, that the default period in the earlier proceedings could not clearly be held to include any part of the default period in the second proceedings. In the initial documents including the notice issued by the Tehsildar no period was mentioned. Be that as it may, after the perusal of the record we are satisfied that there was no overlapping. Accordingly, the question of res judicata does not arise. We have perused the receipts Exhs. D.W.1/1 to D.W.1/3 which were relied upon from the appellants' side at the time of grant of leave to appeal. They do relate to the period in dispute in the second round of proceedings. But excepting one about which there is some doubt the other two deposits even if proved to have been made, they were out of time. The default thus stood established. Otherwise too, it is neither a case of misreading nor non‑reading on a substantial question. The controversy now stands concluded by findings of fact which have gone against the appellants. The impugned judgment does not suffer from any serious infirmity, therefore, there being no force in this appeal it is dismissed. The matter does not end here. The respondents who remained present and argued their own case seem to be literate and well aware of the Islamic way of dispensation of justice in such like matters themselves admitted that the appellants are their tenants for the last about 3‑4 decades. While it is the duty of the tenants to please their landlords, by keeping good relationship which the appellants have not been able to fulfill; nevertheless, it is the duty of the respondents/landlords' side also to part ways with magnanimity on their part. Even if according to technical calculation the appellants are not entitled to compensation which, according to them, B would be adequate there is nothing wrong in the respondents paying them adequate compensation which the respondents honestly believe to the adequate. On this question the respondents agreed that if by winning this appeal they take any benefit which in morality is not due to them they would be carrying fire in their pockets as laid down by Prophet Muhammad (p.b.u.h.) in a well‑confirmed Sunnah No. 845 Sahih Al‑Bukhari ‑‑ Arabic English Vol. III, p‑523, by Dr. Muhammad Mohsin Khan‑‑Islam University Al‑Madina Al‑Munnawara, KAZI PUBLICATIONS LAHORE, PAKISTAN. With these observations these appeals are dismissed with no order as to costs. M.B.A./K‑209/S Appeals dismissed.