PLD 1992 Supreme Court 225 (PLP)

MUHAMMAD AFZAL ZULLAH, CJ.

This petition arises out of a case relating to redemption of mortgage of land. The respondents/plaintiffs/mortgagees side filed a suit for declaration under the Specific Relief Act that the petitioners/mortgagors side not having redeemed the property within the prescribed period of limitation, the respondents' side by this failure and influx of time had become owners of the land under mortgage; which admittedly otherwise belonged to the petitioners/mortgagors side. The suit was decreed against the petitioners by the trial Court (aftr a remand). The petitioners/defendants' appeal was dismissed. Their revision in the High Court met the same fate. Thus, this petition for leave to appeal. Learned counsel contended; firstly, that the 60 years period of limitation was to run against the petitioners from the date when the mortgage money had become payable to the respondents side. There were two mutations of mortgage. The first having all the details and the second containing a short order making reference to the details mentioned in the other one. The plaintiffs/respondents side produced only the second one and thus there are no details on the record showing when the mortgage money was to be paid to the mortgagees. Apart from this failure by the respondents side to produce proper and best evidence, learned counsel also pointed out that it was not an ordinary mutation on the basis of an old mortgage taking place contemporaneously with the recording and/or attestation of the mutation. The same according to him was based on an earlier decree and the plaintiffs side not having produced the copy of the decree it is not known even till now as to what was the date, determinable from the decree, for the return of the mortgage money. Therefore, the burden of proof remaining always on the plaintiffs in this case, it has been argued that the expiry of period of 60 years from the time of repayment has not been established in this case. Secondly, the learned counsel contended that it having now been held that section 28 of the Limitation Act is repugnant to the Injunctions of Islam there is no reason why the limitation regarding the law of mortgages should be kept intact notwithstanding the fact that the same is also against the Injunctions of Islam. He has in this behalf relied upon the well-known authority Ainulhadaya (~t~ l ~..L ) Volume IV, translation by (late) Syed Amir Ali and published by Qanooni Kutab Khana, Lahore (pages 452 to 455) under the heading ( 'J u~S). Lastly, he contended that if the law which is repugnant to the Injunctions of Islam cannot be considered as uneffective unless so declared and held by the competent forum, and would continue to operate till the needful is done in that behalf; this being a case launched by the respondents side (who under the Islamic principles were in the wrong and werc making immoral claim) they should have been denied the relief claimed under section 42 of the Specific Relief Act. In so arguing the learned counsel has contended that in the said provision the discretion allowed to the Court has not only been visualised in the use of the word "may" but in addition in order to emphasize the element of discretion and its importance in section 42 of the Specific Relief Act the expression "in its discretion" has also been used. He argued that if in any case like the present one when the grant of relief to the respondents/plaintiffs side would be clearly in the negation of the Injunctions of Qur'an and Sunnah on account of the aforementioned repugnancy, there would be no other case better qualified for denial of the relief in the discretion of the Court under section 42 of the Specific Relief Act. As to the points not having been raised or discussed as noted above learned counsel sought permission (which was granted) to raise the same as they relate to the very fundamental of our Constitutional set-up. All these and related questions require examination. Leave to appeal, accordingly, is granted. Security

Rs.5,

000. M.B.A./G-354/S Leave granted