P L D 1994 Peshawar 211 (PLP)

SARDAR MUHAMMAD RAZA KHAN, J.‑‑‑One Habibullah of Reshun, Tehsil Mastuj, D1strict Chitral had alienated his land measuring 3 Chakorams in favour of his co‑villager Muhammad Hassan son of Khatar vide deed dated 2‑5‑1967 for a sum of Rs.2,250 with the condition that the alienation would primarily be a mortgage (Bai Wafa) but if the mortgagor could not redeem the land within five years, it would stand transferred to the mortgagee as complete sale.

2. Habibullah could not redeem the land for about 13 years and died in the meanwhile. Amanullah and Abdul Samad his two sons on 29‑9‑1980 brought a suit for redemption of the said property against Muhammad Hassan in the Court of Ass1stant Commissioner Mastuj exercising the powers of Deputy Commissioner under PATA Regulation. The matter having been referred to Jirga and the decision based on the award thereof, the Ass1stant Commissioner on 23‑2‑1985 dismissed the claim which was further turned down by Additional Commissioner, Malakand on 25‑6‑1986 and Additional Secretary Home on 14‑7‑1987.

3. All the above orders are challenged by Amanullah, Ahmadullah and Abdul Samad, three sons of Habibullah by invoking the Constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.

4. Mr. M. Sardar Khan, Advocate, for the petitioner and Hafiz Aman, Advocate, for the respondents heard and record perused.

5. The construction of the deed of transfer (Exh.DW/1/1 on original file) is not disputed before us. It thus comes to a deed whereby some property was primarily given as mortgage with the condition that if not redeemed within 5 years, the same would operate as a complete sale. From the very construction thereof, we have no two opinions that the transaction is essentially a mortgage and the condition imposed thereon is nothing but a clog on equity of redemption, which is not at all allowed under the law. Despite the conditional construction of document the transaction would operate as mortgage while the clog on equity of redemption shall disappear.

6. All the 3 Courts functioning under PATA Regulation have, therefore, utterly misconstrued the document including the Jirga who also has acted without jurisdiction because the interpretation of a document is strictly a question of law and not a fact. All the disputed orders are liable to be set aside because the wrong interpretation of a document has infringed the vested legal right of the petitioner.

7. The only seriously contested point before us was that of laches, in that, the last impugned order being of July 1987 the instant writ petition was filed in the year 1993. Not the slightest of intellectual exercise is required to refute the whole phenomenon of laches in the circumstances of the present case for more than one reason.

8. Various verdicts of the superior Courts were produced on either side on point of laches wherefrom we have safely concluded that the determination of laches in each and every case depends upon the peculiar circumstances of that case alone and no hard and fast rule can be drawn for coming to one definite conclusion. At one time laches of ten years was condoned while at the other a delay of only 6 months was considered fatal.

9. In the instant case, the circumstances are altogether different because if once it is held that the disputed transaction is one of mortgage, the refusal to permit redemption thereof becomes a matter of recurring wrong for which the principle of laches is never attracted at all. We can rely upon different verdicts of High Courts as well as that of the Supreme Courts in this behalf starting from PLD 1963 SC 486 to PLD 1970 Lahore 519, PLD 1976 Karachi 848‑1005 and PLD 1982 Peshawar 1.

10. Another feature of the present case is that whenever a matter becomes referable to law of limitation, the question of laches completely loses significance. In a case of mortgage one can safely refer to the law of limitation and hence no reliance at all can be placed on laches. What effect the ex1stence or non‑ex1stence of section 28 of Limitation Act would have on the merits of the present case is a matter which is further damaging for the respondents.

11. Consequently, the writ petition is accepted, the three impugned orders of the respondents Nos.2 to 4 are set aside and the petitioners are held entitled to get the disputed property redeemed on payment of Rs.2,250 to Muhammad Hassan, Respondent No.

1. A.A./1560/P Petition accepted.