1995 PLP 1064 (MLD)

After filing the revision, petitioner filed a C.M. Application No. 525 of 1993, on 16th June, 1993, under section 151, C.P.C. seeking permission to raise additional ground in support of the petition namely: "The mortgage deed was executed on 26th September, 1947, and admittedly soon after the mortgage, co‑mortgagors Kodu Mat and Birju Mal had left Pakistan for India. Under Pakistan (Administration of Evacuee Property) Act, 1957 interest of aforesaid co‑mortgagors became evacuee property. As such the suit out of which petition is arising was not maintainable. The equity of redemption of the co -mortgagors was available property for disposal in terms of Evacuee Displaced Persons Laws (Repeal) Act, 1975 (Act XIV of 1975). Notice of the above application was given to respondent, who vehemently opposed it on the grounds:‑‑‑ (i) It is not admitted position that soon after mortgage, co‑mortgagors Kodu Mal and Birju Mal left Pakistan for India; (ii) It is being contended on non‑available basis that the interest became evacuee property, as the property has never been treated as evacuee property, nor the named co‑mortgagors became evacuee or intending evacuee; (iii) This, therefore, may not be found to be a well‑conceived contention that the right of redemption of the co‑mortgagors was available property for disposal in terms of Repeal Act of 1975, as it was never a pending case under section 3 thereof; and In the memo of revision petition drafted at length no such ground may appear to be taken and fact remains that this petition was filed without such ground etc. Mr. Aslam Chishti, learned counsel in support of the application contended that the objection being a very important in nature be allowed to be raised for the first time before this Court, because its decision would clinch the controversy between the parties in a befitting manner. The learned counsel to supplement his contention also urged that once it is held that the mortgaged property had been declared as evacuee property, then under Pakistan (Administration of Evacuee Properties) Act, 1957, the trial Court had no jurisdiction to entertain such suits under section 25 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (Act XXVIII of 1958) therefore, in the interest of justice the additional point mentioned hereinabove be allowed to be argued. Mr. Basharatullah, Advocate vehemently opposed the prayer and stressed that his Court exercising a revisional jurisdiction on the basis of available record, would not be justified to entertain an additional ground, because it involves a serious factual controversy namely that when did allegedly the co‑mortgagors leave Pakistan and when did they expire and as to whether at any stage of time, the property in suit has ever been treated as evacuee property? I have considered the respective contentions of the learned counsel. In this behalf it is to be noted that this Court is seized with a revision filed under section 11.5, C.P.C., which confers jurisdiction upon it to examine, as to whether subordinate Courts had committed any jurisdictional error in passing the impugned orders or the proceedings suffer from material irregularities or illegalities warranting interference by this Court. As such, at the revisional stage, allowing a party to raise ground which was neither set up in the pleadings before the trial Court nor the Appellate forum had an occasion to examine such proposition, would not be in the interest of justice. Rather it would tantamount to enlarging the scope of section 115, C.P.C. at the High Court level, due to which a factual enquiry had to be launched to settle the controversy which is being raised for the first time in its revisional jurisdiction thus it is held that a point which requires enquiry on the basis of evidence cannot be permitted to be argued for the first time in revisional jurisdiction, therefore, the application stands dismissed. Mr. Muhammad Aslam Chishti, with vehemence contended that the suit for redemption of mortgaged property has been filed incompetently without joining the remaining co‑mortgagors namely Kodu Mal and Birju Mal. He argued that to frame the plaint properly, the remaining mortgagors should have been joined either (as) plaintiffs or the pro forma defendants. He stressed that in their absence respondent had no locus standi to file the suit to avail the equity of redemption of the total mortgaged property. The trial Court failed to decide the issues arising in this behalf being Nos. 2, 3 and 4 properly. He further emphasised that issue No. 2 relating to the locus standi was decided by the Civil Judge on the consideration that since the respondent admitted the condition that whenever the plaintiff pays the amount of Rs. 7,500 the property will be redeemed, therefore, respondent had locus standi to file the suit. The appellate Court did not concur with Civil Judge and disposed of this issue on taking into consideration section 91 of the Transfer of Property Act, therefore, on account of such reason, the findings are liable to be set aside by this Court. He further stressed that the provisions of section 91 of the Transfer of Property Act were also not helpful to respondent because in view of the law laid down in PLD 1954 Pesh. 78, PLD 1970 Pesh. 141 and AIR 1919 Privy Council 24, without joining the co‑mortgagors, the suit for redemption, cannot be decreed. Mr. Basharatullah, learned counsel was of the opinion that in the matters where a joint property had been mortgaged by more than one mortgagors even one of them can institute a suit for redemption. The findings of the Courts below, on account of variation which has been pointed out by the petitioner's counsel, cannot be disturbed, because on reading both the impugned judgments together, except that respondent has locus standi to file a suit even without joining the other co‑mortgagors, under section 91 of the Transfer of Property Act, no other conclusion can be formed. Although Transfer of Property Act, 1882, has not been extended to the Sibi Town, where the subject‑matter of the dispute is situated, but its principles can be followed in the interest of equity and justice. Reliance in this behalf can be placed on the eluminated judgment reported in PLD 1986 Quetta 198 delivered by Hon ble. Mr. Justice Ajmal Mian, Acting Chief Justice, as then he was. In view of the facts of the case, one can visualize that the execution of mortgage deed dated 26th September, 1947, the delivery of the possession by mortgagors including respondent, to petitioner‑mortgagee of the property had not been disputed. The objection on maintainability of the suit is being raised that without joining the remaining co‑mortgagors, petitioner had no locus standi to file the suit. However, Mr, Aslam Chishti, Advocate even had gone to the extent that if his all pleas fail then in that case respondent would be entitled to redeem the property to the extent of his share. According to section 60 of the Transfer of Property Act, the right to redeem the property is available to mortgagor at any time, after the principal money has become due and on the payment of mortgaged money the mortgagor is entitled to claim that possession of mortgaged property be delivered to him, subject to the contingencies enumerated under the said section. In this section a prohibition has been imposed on a person, interested to redeem the property, only to the extent of his share. The relevant provision from this section is reproduced hereinbelow:‑‑‑

60. Right of mortgagor to redeem.‑‑‑At any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage‑money to require the mortgagee (a) deliver to the mortgagor the mortgage‑deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee, (b) where the mortgagee is in possession of the mortgaged property to deliver possession thereof to the mortgagor, and (c) at the cost of the mortgagor either to re transfer the mortgaged property to him or to such third person as he may direct or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgment in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished: Provided that the right conferred by this section has not been extinguished by the act of the parties or by decree of a Court. The right conferred by this section is called a right to redeem and a suit to enforce it is called a suit for redemption. Nothing in this section shall be deemed to render invalid any provision to the effect that, if the time for payment of the‑principal money has been allowed to pass or no such time has been fixed, the mortgagee shall be entitled to reasonable notice before payment or tender of such money. Redemption of portion of mortgaged property.‑‑‑Nothing in this section shall entitle a person interested in a share only of the mortgaged property to redeem has own where only, on payment of a proportionate part of the amount remaining due on the mortgage, except only where a mortgagee, or if there are more mortgagees than one all such mortgagees, has or have acquired, in whole or in part, the share of a mortgagor. In this behalf, section 91 of the Transfer of Property Act notifies the persons besides the mortgagor who may sue for redemption, including any person who has any interest in, or charge upon, the property mortgaged or‑upon the right to redeem the same; any surety for the payment of the mortgage‑debt or any part thereof; or any creditor of the mortgagor who has in a suit for administration of his estate obtained a decree for sale of the mortgaged property. In view of the above two provisions of the law, it would be expedient to examine the case‑law produced by the parties' counsel in support of their respective pleas. In Sumerkand and others v. Qadir Khan and others (PLD 1954 Pesh. 78) it was held that co‑sharer may redeem the property mortgaged by another co‑sharer. In Firdus Khan v. Syed Azam Shah and 14 others (PLD 1970 Pesh. 141) it was held as under:‑‑‑ "The view taken by the learned Additional District Judge that the appellant could sue for redemption is unexceptionable, because a suit to redeem a mortgage partially is not maintainable. A suit on a mortgage bond has to be for the whole of the amount of the mortgage in order to avoid multiplicity of suits because neither the mortgage money nor the security can be split up without the consent of the parties or permission of the Court. By following the decision in Sunitibala Debi v. Dhara Sundari Debi AIR 1919 PC 24 it was so held in Radha Nath v. Nagendra Nath AIR 1931 Cal. 806:" Mr Aslam Chishti, Advocate placed heavy reliance on AIR 1919 Privy Council p.24. I have gone through the facts of the reported judgment. Keeping in view that it relates to the right to foreclosure or sale of the mortgaged property, the law laid down therein, respectfully stating is not applicable on the facts of instant case. Mr. Basharatullah, learned counsel for petitioner referred to AIR 1925 Lahore p.651. Relevant para, therefrom is reproduced hereinbelow:‑‑‑ "In my opinion one of the mortgagors is entitled to redeem the entire mortgage, and by doing so he steps into the shoes of the mortgagee in respect of the shares of the other mortgagors. In this case, owing to the death of Muqarridar, all the proprietors became mortgagors." In AIR 1927 Patna p 25, it was held as under:‑‑‑ "It was held by their Lordships of the Privy Council that, subject to the safeguarding of the equal title to redeem of any other person who had a right of redemption, the respondents were entitled to redeem the entire mortgage, unless something had happened to extinguish the mortgage in whole or in part or unless the conduct of the respondents had estopped asserting what would normally have been their rights Their Lordships observed that it was not the law in India, any more than in England, that one of several mortgagors cannot redeem more than his own share unless the owners of the other shares accept or make no objection, subject to the safeguarding of the rights which those owners might possess. That decision of the Privy Council is binding, and the decision in this suit must follow it." In AIR 1934 Born. 32, in view of section 91 of the Transfer of Property wit was held that the person seeking redemption as proprietary interest in mortgaged property, need not be the original mortgagor or any person claiming through or under him. In AIR 1951 Mad. 91, the view point discussed in above judgments was reiterated. Although the Civil Judge did not discuss issue relating to locus standi to file the suit with reference to the above‑quoted provisions of the Transfer of Property Act, but the Appellate Court confirmed these findings, in view of the statutory provision of law, therefore, it is held that no illegality or irregularity has been committed by the Courts below in deciding Issue No.

2. Additionally following the principle discussed in reported judgments, it is held that a person who is a co‑mortgagor or had interest in the mortgaged property without joining the co‑mortgagors or co‑sharers can file a suit for equity of the redemption of total mortgaged property. Thus, respondent being one of the co‑mortgagors had a lawful authority to file the suit for redemption against the petitioner as such, no interference on this ground is warranted. Mr. Aslam Chishti, Advocate also stated that the mortgage is usufructuary, therefore, without determining the amount which mortgagor/respondent was liable to pay to petitioner, regarding the expenditure incurred by him on the maintenance of the property plus the amount of interest agreed in terms of the deed the Court was not competent to grant the decree. Mr. Basharatullah, learned counsel for petitioner stated t a this argument is not available to petitioner because no issue was framed in this behalf nor petitioner insisted before the trial Court or Appellate Court for the recovery of said amount, thus the contention is not entertainable. I have examined this aspect of the case as well. No doubt clause 8 of the Mortgage Deed contains a condition that Mortgagors will be responsible for the maintenance of the property and in case of failure to adhere this case, mortgagee was authorised to carry out necessary repairs, subject to re imbursing the amount alongwith the interest at the rate of 1% per month with the mortgaged money. But this issue was neither seriously pressed before the Civil Judge nor the Appellate Court. Inasmuch as no request was made in writing before the Courts below either to frame the issue or to dispose of this point otherwise. Thus, for the first time at the revisional stage this point cannot be allowed to be agitated. However, it is observed that the petitioner shall have an independent right to file a separate suit for the recovery of amount, if he has spent in carrying out the maintenance of the property after delivering the possession to respondent. For the foregoing reasons, I see no force in the petition, which is accordingly dismissed. Parties are left to bear their own costs. AA./521/0 Revision dismissed.