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Revision No. 10 of 1961‑62, decided on 16th July 1962, District Lahore.

Ss. 17 & 77‑Suit for ejectment on ground of non‑payment of rent Plaintiff not bound to ask also for decree for rent‑Liability to pay rent on tenant Default does not mean wilful default‑Punjab Protection and Restoration of Tenancy Rights Act (XIII of 1950), S. 3‑Martial Law Regulation No. 64, para. 26.

S. 84‑Revision-- Competent against order passed by Commissioner in revision‑ Board of Revenue has controlling and supervisory powers under S. 84.

S. 84‑Interpretation of law resulting in miscarriage of justice‑Interference Justified.

Saeed Ali Shah for Petitioner.

Muhammad Anwar for Respondents.

This order will dispose of five Revision Petitions Nos. 10 to 14 of 1961‑62.

The facts briefly are that the petitioner filed five suits against various respondents for their ejectment on the ground of non payment of rent. The trial Court's finding was that the rent had not been paid and ejectment of respondents was decreed. In appeal the Collector maintained this order. The Additional Commissioner intervened in revision and on a misreading of the law as will be presently shown held that if there was a dispute regarding payment of rent it was for the landlord to seek his remedy under section 17 of the Tenancy Act. The evidence was that the tenants were prepared to pay rent at the rate of 2/5th of the produce which is in keeping with the provisions of section 15 (a) of the Punjab Tenancy (Amendment) Act of 1952 but the landlord was claiming rent at batai. It needs no argument to show that the liability to pay rent is on the tenant and it would normally be for him to seek the assistance of the legal provision of section 17 of the Tenancy Act. I would no subscribe to the proposition of the learned Additional Commissioner that the landlord should have proceeded under the provision of this section.

The learned Additional Commissioner has also questioned the findings of fact by the two lower Courts regarding actual payment of rent. His view was that in any case there was no wilful default on the part of the petitioners because of the above‑mentioned dispute regarding the rate of rent. Whatever may be the nature of the dispute, there is no doubt that the default was wilful in the sense that the word is used in the English language i.e., it was intentional and not the result of circumstances over which the tenants could not exercise their volition. In any case the word wilful does not find a place in section 3 of the Punjab Protection and Restoration of Tenancy Rights Act, 1950, or paragraph 26 of Martial Law Regulation No. 64.

The learned Additional Commissioner has also said that there was no prayer for recovery of arrears of rent and thus presumably according to him the suit was defective or bad in law. Legally it is quite open to a plaintiff to seek partial relief and not the full relief to which he may be entitled. When partial relief is prayed for it is presumed that the rest of the relief is given up. This is not a defect which makes a suit bade in law.

The learned counsel for the respondent has raised another; plea, namely, that the Board of Revenue' is not competent to interfere under the Tenancy Act if the Commissioner has already exercised revisional jurisdiction. This argument is based on the. use of word "or" in the amended subsection (4) of section 84 of the Tenancy Act. Subsection (5) of section 84 which is a succeeding provision of the Act leaves no room for doubt that revisional jurisdiction under the Tenancy Act is still retained by the Board of Revenue, even after the Commissioner has exercised his powers of revision. This is in accordance with the scheme of the Act because these powers of revision are really "powers to call for, examine and revise proceedings of Revenue Officers and Revenue Courts". The powers are, therefore, controlling and supervisory in character and this view is further strengthened by perusal of subsection (2) of section 5 of the Board of Revenue Act. This subsection runs as follows:‑

"The Board of Revenue shall be the highest Court of appeal and revision in revenue cases of the province."

I am, therefore, not prepared to accept the argument which has been advanced by the learned counsel to the effect that under the new amendment of the Tenancy Act the powers of the Board of Revenue have been restricted and are not applicable to cases in which the Commissioner has already exercised his revisional jurisdiction.

As a result of the above discussion I hold that the learned Additional Commissioner was not competent under the law to interfere with a concurrent finding of fact by the trial Court and the Appellate Court and to hold that unless the default in payment of rent is wilful the tenant is not liable to ejectment. As already observed the latter proposition is quite contrary to the provisions of section 3 (i) of the Punjab Protection and Resto ration of Tenancy Right Act, 1950 and also paragraph 26 of Martial Law Regulation No. 64. Subsection (i) of section 3 of the former Act runs as follows:‑

"Notwithstanding any provision contained in any other law for the time being in force to the contrary the tenant shall not be ejected from his tenancy unless it is established that he has (i) failed to pay the rent in accordance with the terms of tenancy or . . . . ."

Paragraph 26 of Martial Law Regulation No. 64 is reproduced below:‑

"Until any order is made under this Regulation for the resumption or utilization of the land no tenant shall be ejected unless it is established in a Revenue Court that he has (a) failed to pay rent or . . . . ." The wrong interpretation of law by learned Additional Commissioner himself has resulted in a miscarriage of justice. I would, therefore, in revision set aside the order passed by him and restore that of the trial Court.

K. M. A. Revision accepted.

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