P L D 1988 Supreme Court 102 (PLP)

DAVID IQBAL, J.‑‑Civil Appeal No. 31‑P of 1977 and Civil Appeal No. 32‑P of 1977 have been filed by Mohabbat Khan appellant and are directed against the judgment, dated 28th July, 1976 passed by a learned Single Judge of the Peshawar High Court, Peshawar. Since identical question of law is involved in both the appeals these are being taken up and disposed of by this judgment. The background is that on 27th October, 1949 Mohabbat Khan appellant and his brother Mahmud Khan created two separate mortgages through registered mortgage deeds of two parcels of land respectively measuring 43 Kanals 131 Marlas and 22 Kanals 171 Marlas situated in village Sarki Kasharan for a period of five years against sums of Rs.1,500 and Rs.1,150 in favour of Hazrat Jan respondent. Mahmud Khan then received further amount on his mortgage so much so that the mortgage amount went up to Rs.2,

000. Thereafter, Mahmud Khan transferred land measuring 20 Kanals 15 Marlas to the respondent and created a second mortgage in respect of the suit land for a sum of Rs.2,050 in favour of the appellant and authorised him to get the mortgages redeemed from the respondent. On 25th June, 1958 the appellant and his brother Mahmud Khan filed an application for the redemption of the mortgages under section 4 of the N.‑W.F.P. Redemption of Mortgages Act, 1935 before the Collector Peshawar who without going into the merits dismissed this application vide his judgment, dated 30th December, 1958 for the reasons that the applicants had not impleaded Mst. Hussan Pari and Taus Khan as petitioners or respondents in the application and that partial redemption could not be ordered. The appellant did not challenged the aforesaid order of the Collector in any Court. The N.‑W.F.P. Redemption of Mortgages Act, 1935 was repealed by section 24 of West Pakistan Redemption and Restitution of Mortgaged Lands Act 1964 (Act XIX of 1964). Eventually on 23rd March, 1972 the appellant instituted two suits in the Court of the Civil Judge, Charsadda against the respondent for possession of the said parcels of land measuring 43 Kanals 131 Marlars and 22 Kanals 171 Marlas by redemption of mortgage on payment for sums of Rs.1,500 and Rs.2,000 respectively. The respondent vehemently contested the suits by denying the relationship of mortgagor and mortgagee between the parties and raising several other factual and legal pleas. The pleadings of the parties, gave rise to several issues in each of the two suits, the most important of which was; as to whether the appellant had a cause of action. The trial Court in both the suits decided the said issue against the appellant and other issues also in the light of its finding thereon. The reasoning of the trial Judge was that the application of the appellant under section 4 of the N.‑W.F.P. Redemption of Mortgages Act 1935 for the redemption of the mortgages in question was dismissed on merits on 30th December, 1958. Thereafter, the appellant did not care to institute suits within a period of one year as envisaged by Article 14 of the Limitation Act from the date of that order to establish his right in respect of the mortgages as provided for under section 12 of the aforesaid Act. Thus, the conclusion drawn was that since the appellant failed to lodge suits within a period of one year, the order of the Collector, dated 30th December, 1958 dismissing the petition of the appellant under section 4 of the aforesaid Act became conclusive and consequently he had got no locus standi to lodge the suits. Thus, the suits of the appellant were dismissed vide two separate judgments of the Civil Judge, Charsadda, dated 27th May, 1972. Thereafter, the appellant challenged the two judgments passed by the trial Court dismissing his suits through two appeals which were heard and allowed by the Additional District Judge, Peshawar vide his two separate judgments, dated 30th May, 1973. His reasoning was that Article 14 of the Limitation Act was not applicable to the present suits because the N.‑W.F.P. Redemption of Mortgages Act 1935 had been repealed and existed no more. However, Act XIX of 1964 which alone was in the field permitted a mortgagee to file a suit for redemption of his mortgaged lands within the unexpired period of limitation fixed under Article 148 of the Limitation Act for the redemption of mortgaged lands. It was also noted that provision to this effect was contained in proviso to section 7 of Act XIX of 1964 which had been incorporated through an amendment in 1967 (Act VII of 1967). Hence the learned Additional District Judge arrived at the following conclusion:‑ "It is undisputed that the mortgage in question was effected on 19‑10‑1949 and was for a period of 5 years. A suit for its redemption could be brought within 60 years from the expiry of 5 years i.e. from 19‑10‑1949. The suit in hand was brought on 5‑4‑1972. The suit was clearly within tire. The finding of the learned lower Court holding the suit to be barred by time is erroneous and is, therefore, negatived." The two judgments of the Additional District Judge, Peshawar were assailed by the respondent in the form of two civil revisions which were heard by a learned Single Judge of the Peshawar High Court, Peshawar who vide his judgment, dated 28th July, 1976 accepted both the revision petitions and setting aside the judgments and decrees of the Additional District Judge, Peshawar restored the judgments and decrees of the Civil Judge, Charsadda. Leave to appeal in both the aforesaid cases was granted on the question that had the attention of the learned Single Judge of the Peshawar High Court, Peshawar been drawn to the provisions of section 24(2) of Act XIX of 1964, he would have come to a different conclusion. It was argued by the learned counsel for the appellant that the trial Court as well as the Peshawar High Court had proceeded to consider the order passed by the Collector, dated 30th December, 1958 dismissing the application of the appellant and his brother under section 4 of the N.‑W.F.P. Redemption of Mortgages Act 1935 as having been passed on merits and that since it was not challenged within a period of one year as prescribed under Article 14 of the Limitation Act, it became conclusive and, therefore, the appellant and his brother had lost the right of redemption for ever. It was submitted that this proposition could have been accepted as correct under section 12 of the N.‑W.F.P. Redemption of Mortgages Act 1935 if the order of the Collector had been passed on merits but in the instant case the Collector had not passed order, dated 30th December, 1958 on merits but he dismissed the application on the ground that there was sufficient cause for not proceeding further with the application. In that view of the matter, according to the learned counsel, the appellant was justified in ignoring the aforesaid order of the Collector and was entitled to institute the suits for redemption of the mortgaged lands. In order to appreciate the contentions of the learned counsel it would be useful to examine the relevant provisions of the N.‑W.F.P. Redemption of Mortgages Act 1935, Limitation Act as well as Act XIX of 1964 read with Act VII of 1967 applicable to the present case. Under section 12 of the N.‑W.F.P. Redemption of Mortgages Act 1935 any party aggrieved by an order made under sections 6, 7, 8, 9, 10 or 11 of the said Act may institute a suit to establish his rights in respect of the mortgage but, subject to the result of such suit, if any, the order shall be conclusive. For our purpose sections 7, 9 and 11 of the aforesaid Act may not be relevant. However, relevant portions of sections 6, 8 and 10 read as follows:‑ Sgction 6.‑‑ Where the mortgagee appears and the petitioner does not appear when the petition is called on for hearing, the Collector shall, unless he adjourns the proceedings, makes an order that the petition be dismissed, unless the mortgagee admits the claim, in which case the Collector shall make an order:‑ (a) that the mortgage be redeemed; (b) that where the mortgage is with possession the mortgagor be put in possession of the mortgaged property as against the mortgagee; (c) that the mortgagee deposit with the Collector the mortgage deed, if any, if then in his possession or power, and that it be delivered to the petitioner; (d) that subject to the mortgage deed, if any, being so deposited by the mortgagee the sum in the deposit be paid to him: Provided that no such order shall be made inconsistent with any conditions of the mortgage whereby a season or period of the year is fixed for redemption or for surrendering possession. Section 8.‑‑ Where both parties appear when the petition is called for hearing, the Collector shall inquire from the mortgagee whether he admits that the petitioner is entitled to redeem and whether he is willing to accept the sum in deposit in full discharge of the mortgage debt, and where the mortgage is with possession whether he is willing to surrender possession of the mortgaged property. If the mortgagee replies in the affirmative, the Collector shall make an order as laid down in section 6(a), (b), (c) and (d) of this Act. Section 10.‑‑ If on inquiry regarding any objection so raised by the mortgagee the Collector is of opinion that it bars redemption or there is a sufficient cause for not proceeding further with the petition, he shall dismiss the petition, but if he is not of that opinion, he shall, unless he dismisses the petition under section 11, make an order as laid down in section 6(a), (b), (c) and (d) of this Act." While dismissing the application of the appellant under section 4 of the aforesaid Act in this case the Collector in his order, dated 30th December, 1958 stated as follows: It is submitted by the learned counsel for the appellant that in the light of the above provisions if an order is passed by the Collector under section 6(a), (b), (c) or (d) besides sections 7, 8, 9, 10 or 11 of the aforesaid Act only then it could be considered as an order having been paused on merits and could be assailed as required under section 12 within a period of one year in accordance with Article 14 of the Limitation Act, otherwise it would be deemed to have become conclusive. But in the instant case as is evident from the concluding portion of the order of the Collector, dated 30th December, 1958, it has not been made under any of the aforesaid provisions and, therefore, had not been passed on merits. On the contrary the Collector had dismissed the application of the appellant under section 4 of the aforesaid Act as he was of the opinion that the redemption was barred due to not impleading all the concerned parties or that there was sufficient cause for not proceeding further with the application of the appellant. Since this was the position the said order cannot be considered as having been passed on merits and it did not require being assailed within a period of one year under section 12 of the aforesaid Act. According to the learned counsel the appellant was, therefore, justified in ignoring it altogether. In support of his reasoning learned counsel placed reliance on A I R 1938 Lah. 512 Parbu Mal v. Chandan in which it was laid down that where a Collector dismisses an application for redemption under the Redemption of Mortgages Act (II of 1913) on the ground that it was improper to order redemption of the mortgage in summary proceedings as the dispute between the parties was of a complicated nature and directs the applicant to seek redemption in a Civil Court, he does not decide anything against the applicant; and a suit for redemption subsequently filed by the applicant in a Civil Court is not one, to set aside any act or order of an Officer of the Government made in his official capacity within the meaning of Article 14 of the Limitation Act. Article 14 is inapplicable to such a suit and the suit, although filed more than one year from the date of the Collector's order, is not barred by limitation. It was next submitted that the aforesaid Act was superceded by Act XIX of 1964 and, therefore, it ceased to exist. Now in the field was only Act XIX of 1964, the relevant section of which applicable to this case being section 7, is reproduced alongwith the amendment introduced vide Act VII of 1967: "

7. Saving of suits to establish rights.‑‑Any party aggrieved by an o~ the Collector passed under section 5 or 6, may institute a suit to establish his right in respect of the mortgage; but, subject to the result of such suit, if any, the order shall be conclusive: Provided that notwithstanding the provisions of Article 14 of Schedule 1 of the Limitation Act of 1908, a mortgagor may file a suit for the redemption of his mortgaged land within the unexpired period of limitation fixed by law for the redemption of the mortgaged lands." Article 148 of the Limitation Act reads as follows:‑ "Against a mortgagee Sixty years. When the right to to redeem or to recover redeem or to possession of recover possession immovable property accrues." mortgaged. The other relevant section of Act XIX of 1964 in this case is section 24(2) which also reads as follows:‑ "Notwithstanding the repeal of the enactments mentioned in subsection (1), all proceedings commenced, rules framed, orders made and other acts done under any of the repealed enactments, shall, if not inconsistent with the provisions of this Act, so far as may be, be deemed to have been respectively commenced, framed, made and done under this Act." In the light of these provisions learned counsel for the appellant submits that mortgages in the instant case were effected on 27th October, 1949. These were for a period of five years. The suits for their redemption could be brought under the aforesaid existing law (Section 7 of Act XIX of 1964 read with amending Act VII of 1967 as well as section 24(2) of Act XIX of 1967) which was in the field, within a period of sixty years from the expiry of five years. The present suits were instituted by the appellant on 23rd March, 1972 and, therefore, these were clearly within time. It was, therefore, argued that the finding, of the trial Court holding that the suits were barred by time was erroneous and consequently correctly negatived by the Additional District Judge. Similarly the conclusion arrived at by the learned Single Judge of the Peshawar High Court to the effect that the order passed by the Collector, dated 30th December, 1958 in this case due to non‑assailment within a period of one year as required under Article 14 of the Limitation Act had become conclusive, that by the operation of law the right to redeem the suit land stood extinguished and that the 1967 Amendment in Act XIX of 1964 could not come to the rescue of the appellant, was neither proper nor in accordance with law. Learned counsel for the respondent on the other hand supported the reasoning of the learned Single Judge and argued that under Article 14 of the Limitation Act an aggrieved party had to file a civil suit within a period of one year of the order passed by a Revenue Court under ~ and if he failed to do so, the order of the Collector became conclusive and final. In support of his argument he placed reliance on A I R 1925 Lah. 385 Kaura and another v. Ramchand and another in which it was held as follows:‑ "A mortgagor's right to redeem, which would otherwise be within limitation, is barred if the action is brought later than a year of the date of an order passed to the plaintiff's deteriment by the Collector on an application under Punjab Act II of 1923. When an order passed under a Special Act is declared by that act to be conclusive, it cannot be ignored and no relief is open to the aggrieved party unless that order be set aside. An individual who takes advantage of a summary procedure must suffer its disadvantages as well as enjoy its benefits. The suit referred to in S.12 of the Punjab Redemption of Mortgages Act is a suit to set aside an order of an officer of Government within Art. 14." Reliance was also placed by the learned counsel for the respondent on A I R 1927 Lah. 461 Darba Mal and another v. Asa Ram and others in which it was laid down:‑ "Act 2 of 1918 is a miniature Code in itself. S.12 governs all cases in which an order under certain sections (including S.9) has been passed. The policy of the Legislature is that a person who chooses to move the Collector under the Act, but fails, cannot be allowed to leave the matter in suspense for a period which may extend to another 60 years, but that the order is final, except that it is subject to the result of a suit, which he must (if at all) institute within one year of it. (AIR 1925 Lah. 385)." He further relied on A I . R 1934 Lah. 384 Gangu and others v. Mahanraj Chand and others. In both these authorities the principle laid down in A I R 1925 Lah. 385 (supra) has been followed. It was, therefore, submitted by the learned counsel for the respondent that while reversing the judgments and decrees of the trial Court the learned Additional District Judge had overlooked that the bar of limitation created by Article 14 of the Limitation Act was equally applicable to an order made under Act XIX of 1964, that section 7 of the aforesaid Act on which the learned Additional District Judge had relied on was in peramateria with section 12 of the N.‑W.F.P. Redemption of Mortgages Act 1935 and that the repeal of the aforesaid Act by Act XIX of 1964 could not revive the rights of a mortgagor which already stood extinguished by the operation of law as section 24(2) of Act XIX of 1964 saves orders made and other acts done under the repealed enactments. We have heard learned counsel for the parties and after considering their arguments we are of the opinion that the appellant is entitled to succeed on the basis of his first contention namely that the order of the Collector under section 4 of the N.‑W.F.P. Redemption of Mortgages Act 1935 not having been passed on merits but being merely an order refusing to proceed further with the application ‑ because according to him all the concerned parties had not been impleaded as petitioners or respondents and that, therefore, partial redemption was not possible, the order of dismissal passed by the Collector could not be deemed to be a final order passed on the merits disposing of the dispute. Had it been passed on merits under any of the sections mentioned in section 12 of the aforesaid Act, it would no doubt have been incumbent on the appellant to institute a suit for redemption within a period of one year as prescribed by Article 14 of the Limitation Act because the language of the aforesaid Article 14 leaves no doubt that the period of one year is prescribed for a suit 'to set aside an order of an officer of the Government'. B This Article, however, cannot apply to a suit which does not seek the setting aside of an order of the Collector against a mortgagor plaintiff which decides nothing on the merits, and such an order does not stand in the way of the suit by him to establish his right in the mortgaged land and such a suit, therefore, would not be a suit falling under Article 14 of the Limitation Act. In this view of the matter the suits filed by the appellant for redemption could accordingly be instituted against the mortgagee within sixty years from the time when the right to redeem or to recover possession accrued under Article 148 of the Limitation Act. The suits were instituted by the appellant in 1972 in respect of mortgages created in 1949, therefore, these were within time. The majority,, in the full Bench, in the case entitled Tulsi Das v. Daila Ram A I R 1943 Lah. 176 has also taken a somewhat similar view. In the light of the above discussion both the appeals are allowed with costs. The result is that the judgments passed by learned Single Judge of the Peshawar High Court, Peshawar are hereby set aside and the judgments and decrees passed by the learned Additional District Judge, Peshawar are hereby restored. M.B.A./M‑274/S Appeals allowed.