P L D 2001 Lahore 372 (PLP)

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Administration of justice‑‑Suppression of information from High Court‑‑‑Effect‑‑‑Where the Authorities had misinterpreted the law and the misinterpretation was such that the fact of suppression of information about filing of a civil suit or appeal by the petitioners paled into insignificance in fade of such injustice High Court ignored the suppression of fact by the petitioners in circumstances. Rafique Ahmed Malik for Petitioners. Syed Nazar Hussain for Respondents Nos.4 and

5. Nemo, for the Remaining Respondents. Date of hearing: 23rd January, 2001. The necessary facts giving rise to the present petition are that the property in dispute measuring 7 Kanals and 17 Marlas situated in Mauza Karor Nashaib, Tehsil Layyah (presently Tehsil Karor Lai Eisan), District Layyah was originally owned by one Noor son of Ahmed who was the predecessor‑in‑interest of the present petitioners. The said Noor son of Ahmed had mortgaged the said property in favour of one Topan Ram who had then transferred his mortgagee rights on 22‑5‑1927 through Mutation No.285 in favour of Muhammad Bakhsh son of Murad who was the predecessor‑in‑interest of respondents Nos.4 and 5 herein. The revenue record i.e. the Record of Rights (Jamabandi) duly incorporated the said transfer of mortgagee rights by Topan Ram in favour of Muhammad Bakhsh son of Murad till the year 1939‑40 but subsequently due to some clerical mistake on the part of some Revenue Officer the subsequent Record of Rights (Jamabandis) wrongly mentioned the abovementioned Muhammad Bakhsh son of Murad as Muhammad Bakhsh son of Ahmed. The predecessor‑ in‑interest of the present petitioners namely Noor son of Ahmed died and then on 4‑12‑1978 the present petitioners filed an application before an Extra‑Assistant Settlement Officer/Collector, Layyah seeking redemption of the said mortgage from Muhammad Bakhsh son of Murad. That application of the present petitioners was dismissed by the Extra‑Assistant Settlement Officer/Collector, Layyah on 5‑1‑1980 solely on the ground that the Revenue Record as it existed at that time, showed the mortgagee's name to be Muhammad Bakhsh son of Ahmed and not Muhammad Bakhsh son of Murad. Subsequently one Muhammad Bakhsh son of Ahmed, posing himself to be the recorded mortgagee of the land in question, got Mutation No.2748 of redemption of the said mortgage attested in favour of the present petitioners on 13‑4‑1980. That mutation was challenged by respondents Nos.4 and 5 before the Collector (Consolidation) Layyah through an appeal which was accepted by the Collector (Consolidation), Layyah and the mutation in question was set aside. The Collector (Consolidation), Layyah further ordered that the Record of Rights (Jamabandi) should be suitably corrected through a Fard Badar to show the correct name of the mortgagee as Muhammad Bakhsh son of Murad. Later on that correction was carried out on 24‑12‑1983 through Fard Badr No.8 and Mutations Nos.3041 and 3042. Equipped with this rectification of the Revenue Record the present petitioners filed another application before the Collector, Karor Lal Eisan, District Layyah on 5‑2‑1‑984 seeking redemption of the mortgage in question from respondents Nos.4 and 5 who had by then succeeded Muhammad Bakhsh son of Murad upon his death. Vide order dated 4‑10‑1984 the Collector, Karor Lal Eisan, District Layyah accepted that application of the petitioners and allowed the prayed for redemption of the mortgage in favour of the petitioners. That order of the Collector was carried into effect on 28‑I1‑1984 through sanctioning of Mutation No.3138 in favour of the present petitioners. Respondents Nos.4 and 5 challenged the said order of the Collector through an appeal which was accepted by the Additional Commissioner (Revenue), Dera Ghazi Khan Division, Dera Ghazi Khan vide order dated 11‑12‑1985 and resultantly the order dated 4‑10‑1984 passed by the Collector was set aside. The present petitioners assailed the said order of the Additional Commissioner before the Board of Revenue, Punjab, Lahore through a revision petition but the petitioners' revision petition in that regard was dismissed by the learned Member (Revenue), Board of Revenue, Punjab, Camp at Multan vide order dated 16‑10‑1986. Hence, the present petition before this Court.

2. In support of the present petition the learned counsel for the petitioners has argued that the only ground on which the Additional Commissioner and the learned Member, Board of Revenue had decided the case was that after dismissal of the petitioners' application for redemption of mortgage by the Extra‑Assistant Settlement Officer/Collector, Layyah on 5‑1‑1980 another application filed by the petitioners before the Collector, Karor Lal Eisan on 5‑4‑1984 for the same relief was barred by the provisions of section 8 of the West Pakistan Redemption and Registration of Mortgaged Lands Act, 1964. According to the learned counsel for the petitioners the earlier application of the petitioners in that regard had never been decided on its merits and that the petitioners had throughout acted with bona fide and the said earlier application of the petitioners was dismissed for no fault of the petitioners, According to the learned counsel for the petitioners if the revenue record had not been correctly maintained by the Revenue officials then the petitioners could not be punished or penalised on that score and that a fresh application of the petitioners after rectification of the revenue record was not hit by the provisions of the abovementioned section 8 of the Act of 1964. As against that the learned counsel for respondents Nos.4 and 5 has maintained that the impugned order had been passed by the Board of Revenue on 16‑10‑1986 whereas the present Constitutional petition had been filed by the petitioners before this court on 6‑3‑1989 i.e. almost 2‑1/2 years later. Thus, according to the learned counsel for respondents Nos.4 and 5, the petition in hand suffered from gross laches which have not been explained by the petitioners properly. The learned counsel for respondents Nos.4 and 5 has further maintained that after passage of the order passed by the Board of Revenue on 16‑10‑1986 the petitioners had filed a civil suit against respondents Nos.4 and 5 in the year 1987 which civil suit was dismissed on account of non‑appearance of the petitioners and subsequently an application for restoration of that suit as well as an application for restoration of the earlier application for restoration of the suit were also dismissed by the learned Civil Judge, Camp at Karor on 23‑1 -1988. According to him an appeal filed by the present petitioners against the order passed by the learned Civil Judge on 23‑1‑1988 was dismissed by the learned District Judge, Layyah vide judgment dated 7‑3‑1989. It has been maintained by the learned counsel for respondents Nos.4 and 5 that the present writ petition had been filed by the petitioners before this Court one day prior to the dismissal of their appeal by the learned District Judge, Layyah and unfortunately pendency of the said appeal had not been disclosed in the present writ petition. The learned counsel for respondents Nos.4 and 5 has lastly maintained that the subsequent application of the petitioners for redemption of the mortgage in question was clearly hit by the provisions of section 8 of the Act of 1964 and the same was also barred by limitation. With these submissions the learned counsel for respondents Nos.4 and 5 has supported the impugned orders passed by the Additional Commissioner and the Board of Revenue and has prayed for dismissal of the present petition.

3. After hearing the learned counsel for the parties at some length and going through the record with their assistance I have found that although the present petition had been filed before this Court after about 2‑1/2 years of the passage of the impugned order by the Board of Revenue yet the petitioners are equipped with valid explanation for that delay in approaching this Court. The Board of Revenue had decided against the petitioners on 16‑10‑1986 but soon thereafter an agreement had been arrived at between the parties (which agreement is incorporated in the document appended with this petition as Annexure G) according to which the matter was to be decided between the parties through arbitration. That agreement is dated 5‑1‑1987. The learned counsel for the petitioners has referred to various documents which show that on the basis of that agreement arbitration proceedings did take place and a solution was worked out by the arbitrators but on 3‑10‑1988 respondents Nos.4 and 5 statedly backed out of that agreement and filed an application before the Deputy Commissioner/Collector, Layyah for review of Mutation No.3138 in compliance with the impugned order passed by the Board of Revenue. It was on the basis of a notice issued to the petitioners in consequence of that application of respondents Nos.4 and 5 that the petitioners became aware that the respondents had backed out of that agreement and, thus, they decided to approach this Court through the present petition on 6‑3‑1989 against the impugned orders passed by the Additional Commissioner and the Board of Revenue. In that backdrop it cannot be said that the petitioners did not have any valid explanation to offer for the delay in approaching this Court and, thus, their inaction during the interregnum cannot be termed as laches disentitling them to any discretionary relief.

4. As regards the question of limitation for seeking redemption of the mortgage in question it has been noticed by this Court that the mortgage in question could be redeemed by the petitioners till 21‑5‑1987 but they had approached the Collector Karor Lal Eisan seeking the desired redemption on 5‑2‑1984 and the petitioners' application in that regard was accepted by the Collector on 4‑10‑1984 i.e. much before expiry of the period of limitation for redemption of that mortgage. Any subsequent setting aside of the said order of the Collector by the higher authorities would not reflect upon the question of limitation as the same essentially pertains to the initial approach before the forum of first instance. Thus, I have remained unable to agree with the learned counsel for respondents Nos.4 and 5 on the question of limitation.

5. Coming now to the only consideration weighing with the Additional Commissioner and the Board of Revenue for deciding the matter against the present petitioners i.e. the provisions of section 8 of the West Pakistan Redemption and Registration of Mortgaged Lands Act, 1964 it would be advantageous to reproduce the said provisions here for facility of reference:‑‑ "Section

8. No second petition.‑‑‑The dismissal of a petition under this Chapter shall bar any further petition under this Chapter by the same petitioner or his representative‑in‑interest in respect of the same mortgage." It has already been observed earlier that the first application of the present petitioners seeking redemption of the mortgage in question had been filed by them on 4‑12‑1978 against Muhammad Bakhsh son of Murad who was the transferee of the mortgagee rights from the original mortgagee namely Topan Ram. The said application of the petitioners had been dismissed by the Extra Assistant Settlement Officer/Collector, Layyah on 5‑1‑1980 solely on the ground that the revenue record described the transferee‑mortgagee as Muhammad Bakhsh son of Ahmed and not Muhammad Bakhsh son of Murad and, therefore, the petitioners' application against Muhammad Bakhsh son of Murad was liable to be dismissed. The subsequent orders passed by various authorities in this case as well as the factual background of this case clearly demonstrate that at the relevant time when the first application of the petitioners for redemption of the mortgage in question was dismissed the Revenue Record contained an incorrect entry in respect of the transferee mortgagee. namely Muhammad Bakhsh regarding his father's name. That mistake in the revenue record was subsequently corrected and on 24‑12‑1983 Mutations Nos.3041 and 3042 were sanctioned rectifying the said mistake in the Revenue Record. On the basis of that rectification the petitioners filed their subsequent application for redemption of the mortgage in question on 5‑2‑1984 seeking redemption against the selfsame person, i.e. Muhammad Bakhsh son of Murad and this time the petitioners' application was accepted by the Collector on 4‑10‑1984. The spirit of section 8 of the Act of 1964 appears to be that once a petition for redemption of a mortgage is dismissed on merits after a proper adjudication of the parties' case then any further petition for redemption of that very mortgage is to be discouraged but that surely does not mean that a bona fide subsequent application in that regard is so be non‑suited on the basis of a technicality alone. In the present case the petitioners' first application had not been decided on merits but the same had been dismissed on a ground which had no nexus with any fault on the petitioners' part and, thus, the petitioners' second application seeking the same relief on the basis of removal of the fault of the Revenue Authorities was surely not hit by the spirit of the above‑reproduced section 8 of the Act of 1964. In this regard I would not like to accept an interpretation of the said section 8 which makes a fetish of the law and tries to achieve a result which is unjust and downright unfair. Thus, the contention of the learned counsel for respondents Nos.4 and 5 in that regard as well as the basis on which the impugned orders had been passed by the Additional Commissioner and the Board of Revenue are not acceptable or sustainable in law as well as equity.

6. It may be true that the petitioners had failed to disclose in the present petition the factum of filing a civil suit and an appeal against respondents Nos.4 and 5 in this very regard after getting adverse orders from the Additional Commissioner and the Board of Revenue but in the peculiar circumstances of this case this suppression of the said fact has not been found by me to be grave enough to throw out their Constitutional petition on this score alone. Admittedly the said suit of the petitioners was not decided on its merits as the same had been dismissed on account of the petitioners' failure to appear before the learned trial Court. Even otherwise the interpretation of section 8 of the abovementioned Act of 1964 by the Additional Commissioner and the Board of Revenue is such that I have not felt persuaded to let it go unreversed because the same had created a bad precedent. The magnitude of injustice done to the present petitioners through the said misinterpretation of .the provisions of section 8 of the said Act of 1964 is such that the fact of suppression of information about filing of a civil suit or appeal by the petitioners pales into insignificance in front of that injustice. In this view of the matter I have decided to ignore that suppression of fact by the petitioners.

7. The facts in this case are not in dispute inasmuch as the present petitioners are admittedly the heirs of Noor son of Ahmed who was the original mortgagor and respondents Nos.4 and 5 are the heirs of the transferee mortgagee namely Muhammad Bakhsh son of Murad. The factum of the mortgage itself or the consideration therefore are also not in dispute. Thus, if the petitioners had been non‑suited by the Additional Commissioner and the Board 'of Revenue on a wrong interpretation of section 8 of the Act of 1964 alone and now that the said interpretation has been corrected by this Court then I have found no reason to remand the case to the Additional Commissioner for a fresh decision on the merits of the case. The petitioners right to get their property redeemed was quite clear and undeniable and they must get back what rightfully belonged to them.

8. For what has been discussed above this petition is allowed, the impugned orders passed by the Additional Commissioner (Revenue), Dera Ghazi Khan Division, Dera Ghazi Khan on 11‑12‑1985 and the Member (Revenue), Board of Revenue, Punjab, Camp at Multan on 16‑10‑1986 are declared to be without lawful authority and of no legal effect and, resultantly, the order passed by the Collector, Karor Lal Eisan, District Layyah on 4‑10‑1984 is hereby restored.

9. There shall be no order as to costs. Q M.H./M.A.K./F‑36/L Petition allowed.