2004 PLP 2200 (YLR)

Being aggrieved the plaintiffs/ respondents Nos.1 to 6 preferred appeal, which was heard by learned VI‑Additional District Judge, Hyderabad. The learned Additional District Judge mainly dilated on the provisions contained in section 15‑D(3) of the D.A.R. Act, 1879. He held that the plain reading of the above provisions shows that an agriculturist is given the chance to make a prayer for redemption when his suit for accounts is allowed by the Court. This provision facilities a plaintiff after judgment and before signature on decree, to get rid of further litigation. He further observed that in the instant case the judgment and decree were signed on the same date and, therefore, the application could not be filed. The learned Additional District Judge formed opinion that this provision shall not bring into operation the provisions contained in Order 2, rule (2), Cr.P.C. He further held that if application was not moved after judgment, it never meant that the claim was available with the plaintiffs, which they relinquished at the time of filing of the suit. He further observed that the right to redemption is conferred upon the mortgagor by enactment and he can be deprived of this right by means of and in the manner enacted in that behalf. In support of his opinion he placed reliance on the judgment of Honourable Supreme Court in the case of Tikandas v. Abdul Wali PLD 1968 SC

241. In this case a suit was decreed but the property was not redeemed. A second suit was filed for redemption. The Honourable Supreme Court held that a right of redemption which is an incident of subsisting mortgage shall subsist so long as the mortgage subsists. It was held that the right of redemption shall extinguish in terms of the provisions contained in section 60 of the Transfer of Property Act only. It was further held that unless the right of redemption is extinguished, a second suit for redemption if filed within a period of limitation, will not be barred. The learned Additional District Judge held that the decree in‑Suit No.2 of 1978 gave a right to the plaintiffs for redemption which is a continuing right and cannot be barred under Order 2, rule (2), C.P.C. The suit, and the judgment and decree which created right in favour of plaintiffs cannot be held to have extinguished the said right. The learned Additional District Judge, while dealing with the cause of action referred to Order 2, rule (2), C.P.C. and placed reliance on the judgment of Honourable Supreme Court in the case of Abdul Hakim v. Saadullah Khan PLD 1970 SC 63, wherein it was held as under:‑‑ "The expression cause of action in Order II, rule 2, C.P.C. means the cause of action for which suit is brought. In order that cause of action for two suits may be same, it is necessary not only that the facts which would entitle the plaintiff to the right claimed must be the same but also that the infringement of his right at the hands of the defendants complained against in two suits, must have arisen in substance out of the same transaction." The learned Additional District Judge by applying the above dictum formed the view that previous suit was filed for accounts and the right of redemption accrued to the plaintiffs as a result of decision in the previous suit. Thus cause of action in the two suits was not same. The learned Additional District Judge further supported his view by the judgment in the case of Haji Hafeezuddin v. Lucas Service Pakistan Ltd. PLD 2000 Karachi

58. The learned Additional District Judge ultimately held that the suit for redemption can be filed within a period of 60 years, under Article 148 of the Limitation Act, therefore, it could not be held to be barred by time. With the above findings, the judgment and decree of the learned trial Court was set aside. It was held that the finding in Suit No.2 of 1978 that no amount was outstanding against the appellant has attained finality and, therefore, there is no reason to deny the right of redemption to the plaintiffs. He therefore, decreed the suit and allowed the appeal accordingly. Being aggrieved with the above findings the applicants have preferred this revision application, which was admitted mainly to consider whether the Appellate Court has properly interpreted and applied the provisions contained in section 15‑D(3) of the D.A.R. Act, 1879. I have heard Mr. Ejaz Ali Hakro, learned counsel for the applicants, Mr. Hassan Mahmood Baig, learned counsel for the respondents Nos. l to 6 and Mr. Masood A. Noorani, learned Addl. A.‑G., for the respondents Nos. 8 and

9. Mr. Hakro has submitted that the respondents/plaintiffs filed earlier suit under section 15‑D(3) of D.A.R., Act, 1879 and at the time of filing the suit they could pray for redemption of land also. With the omission to make a prayer for redemption the subsequent suit became barred under the provisions of Order 2, rule (2), C.P.C. He has further submitted that the respondents could file an application for redemption at any time before the signing of decree and no such application was filed with the result that the subsequent suit was barred. On the other hand, Mr. Hassan Mahmood Baig, learned counsel for the respondents/plaintiffs has submitted that ostensibly there was sale transaction but in fact it was in the nature of mortgage and by virtue of the beneficial legislation contained in section 15 of the D.A.R. Act, the plaintiffs filed suit for accounts with further prayer for declaration that it was a transaction in the nature of mortgage. He further argued that until and unless a judgment was given holding that ostensibly sale transaction, was in fact a transaction of mortgage and it was declared that no amount was payable by the mortgagor, the prayer for redemption could not be made. He submitted that the judgment and decree were signed on the same date and, therefore, the plaintiffs could not submit an application seeking relief of redemption. He further submitted that merely because an agriculturist failed to file an application seeking the redemption after the pronouncement of judgment and before the signing of decree, his right for redemption shall not be extinguished. He submitted that under subsection (3) of section 15‑D, D.A.R. Act, an agriculturist was given an option to adopt a simple mode seeking redemption but non‑exercise of this concession/benefit by an agriculturist shall not take away the right of redemption contained in section 60 of the Transfer of Property Act, which is general law of the land. He has further submitted that the right of redemption being a continuous and recurring right shall continue to vest in the mortgagor till it is redeemed or the right is extinguished on expiry of a period of 60 years from the time when the right to redeem accrues. He has maintained that the statutory right of redemption granted under section 60 of the Transfer of Property Act shall not extinguish merely because some beneficial legislation was enacted by the legislature. Mr. Masood A. Noorani, learned Addl. A.G., has supported the contentions raised by Mr. Hassan Mahmood Baig. I have considered the contentions raised by the learned Advocates for the parties and in order to appreciate their contentions, it would be appropriate to reproduce section 15‑D of the D.A.R. Act, 1879 and Order 11, rule (2), C.P.C., which read as follows:‑‑ " 15D:‑‑‑ (1) Any agriculturist whose property is mortgaged may sue for an account of the amount of principal and interest remaining unpaid on the mortgage and for a decree declaring that amount. (2) When any such suit is brought, the amount (if any) remaining unpaid shall be determined under the same rules as would be applicable under this Act if the mortgagee had sued for the recovery of the debt. (3) At any time before the decree in the suit is signed, the plaintiff may apply to the Court to pass a decree for the redemption of the mortgage, or the mortgagee, if he would then have been entitled to sue for foreclosure or sale, may apply to the Court to pass a decree for foreclosure or sale (as the case may .be), instead of a decree merely declaring the amount remaining unpaid, and the Court may, if it thinks fit, grant the application. (4) The provisions of section 15B shall apply to any decree passed under subsection (3)." Order II, Rule (2). C.P.C. "

2. Suit to include the whole claim:‑‑‑ (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. Relinquishment of part of claim:‑‑‑ (2) Where a plaintiff omits to sue in respect of or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. Omission to sue for one of several reliefs:‑‑‑ (3) A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted. Explanation:‑‑‑For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action." A perusal of section 15‑D, D.A.R. Act shows that subsection (1) gives a right to an agriculturist whose property is mortgaged to sue for account of an amount of principal and interest remaining unpaid on the mortgage and for a decree declaring that amount. Subsection (3) gives an additional right to the plaintiff to the effect that before the signing of the decree in the suit he may apply to the Court to pass a decree for redemption of the mortgage instead of a decree merely declaring the amount remaining unpaid, and the Court may, if it thinks fit grant the application. A bare perusal of the above section shows that an agriculturist whose property is mortgaged may sue for an account of the amount of principal and interest remaining unpaid. Under subsection (1) of section 15‑D an agriculturist may sue for amount of principal and interest remaining unpaid. Under subsection (3) he may further apply for a decree of the redemption of mortgage. On a reading of the entire provision contained in section 15‑D, I am of the opinion that the provisions contained in Order 2, rule (2), C.P.C. are not attracted for the simple reason that under this provision every suit is required to include whole of the claim which the plaintiff is entitled to make in respect of the cause of action. However, if there are two distinct obligations in favour of mortgagor they will give rise to different cause of action and filing of suit for one shall trot have the effect of relinquishment of the other right. I am fortified in my views with the judgment of Erstwhile West Pakistan High Court Lahore Bench in the case of Rafia Begun v. Miraj‑ud‑Din PLD 1959 Lahore 590. 1n this case a question came for consideration before a Division Bench, whether the suit brought by a mortgagee for recovery of the principal amount when a suit was earlier filed for the recovery of interest, was barred under Order 2, rule (2), C.P.C. A plea was taken on behalf of mortgagor that a mortgagee in his earlier suit failed to sue for principal amount and interest due on it and, therefore, he was precluded from filing the subsequent suit by virtue of Order 2, rule (2), C.P.C. In substance the plea was that the cause of action in both the suits was the same and if plaintiff chose to claim only one relief in the earlier suit she had deprived herself of the other relief, which formed basis of the subsequent suit. A plea was taken before the High Court that the obligation to pay interest and principal amount were independent of each other and as such furnished separate cause of action. After examining a large number of judgments it was held that the right to recover the principal and the interest were independent and causes of action were different, therefore, the subsequent suit was not barred under Order 11, rule (2), C.P.C. The case of plaintiffs in these proceedings is on much high pedestal Under subsection (1) of section 15‑D of D.A.R. Act, an agriculturist may sue for an account of the amount of, principal ant, interest retraining unpaid and tinder subsection (3), the plaintiffs could apply for redemption of mortgage. The right to sue for accounts is totally independent right from the claim of redemption and if an agriculturist brought a suit for accounts only the subsequent suit shall trot be barren under Order II, Rule (2), C.P.C. because it, would be on entirely impendent cause of action. The primary object of Order II, rule (2) is to dispose of all the matter arising and relating to the same transaction in one suit and to avoid splitting of claims and remedies to prevent multiplicity of suits. It is based on the principle that the defendants should not be vexed twice for the same cause and if a plaintiff intentionally relinquishes or omits any portion of his claim arising out of same cause of action, he should not afterwards be allowed to sue in respect of the portion so omitted or relinquished. However, if the' two suits are based on two different causes of action the bar contained in Order II, rule' (2), C. P.C. shall not be attracted. A bare perusal of the admitted facts in this case shows that the earlier suit filed under section 15‑D of the D.A.R. Act 1879 was' based on the plea that ostensible sale transaction was in fact a transaction in the ` nature of mortgage and for that purpose declaration in respect of the amount to be paid was sought. The relief for redemption could not be sought until and unless the declaration was granted and subsequent suit for redemption was based on the judgment y and decree in the first suit. The second suit was brought in pursuance of the statutory right for redemption of mortgage under section 60 of the Transfer of Property Act. I am, therefore, of the considered view that D the learned 1st. Appellate Court .was fully justified is holding that the suit was not barred under Order II, rule (2), C.P.C. No exception can be taken to the decretal of the suit allowing the redemption to the plaintiffs. There is no illegality or material irregularity warranting interference by this Court is exercise of revisional jurisdiction and consequently the revision application is dismissed alongwith the listed applications. H.B.T./M‑65/K Revision dismissed.