1994 CLC 457 (PLP)

Date of hearing: 2nd March, 1993. This Constitutional petition is directed against order dated 26‑4‑1976 by which A.C./Collector‑Sub‑Division Gujrat hbs refused to hear the application of the petitioner for the redemption of the mortgaged land.

2. Facts relevant for the disposal of this petition are that the petitioner's predecessor mortgaged the disputed land with the evacuee and thereafter suit was filed for the redemption of the mortgaged land which was rejected vide order dated 26‑4‑1976 of respondent No.3. Full details of that land sought to be redeemed are given in the writ petition. The application was rejected by respondent No.3 observing as hereunder:‑‑ "I agree with the contention of the learned counsel for the respondent that a detailed scrutiny and solving the complicated dispute the proper court is Civil Court where plaint, replication and issues are raised and documents are proved and exhibited and then a judicial pronouncement is made wiser the stand taken by the contending parties. In Revenue Courts matters are to be decided summarily and evidence is not to be adduced to prove that the acknowledgement was made by such and such a person, or not. It is admitted by both the parties that the mortgage is more than 60 years and the proper forum to get a decision is the Civil Court. I, accordingly dismiss the petition and the parties may seek remedy in Civil Court, if they so desire."

3. It is contended by the learned counsel for the petitioners that the land in dispute is under the ownership of Muslim owner and the same was mortgaged with evacuee and, therefore, the latter has only limited right of mortgage: and that the petitioners are entitled to redeem the same and the rejection of their application on the ground of lack of jurisdiction is without lawful authority and is of no legal effect. On the contrary the learned counsel for the respondents contends that this writ petition is not maintainable because alternate remedy has not been availed by the petitioners by way of appeal and therefore, this writ petition is liable to be dismissed on this short ground.

4. On merits the learned counsel .for the respondents argues that the application for redemption of the mortgage was hopelessly barred by time and, therefore, the petitioners have lost their right to redeem the same.

5. While discussing the legal proposition in Samar Gul v. Central Government and others (PLD 1986 Supreme Court 35 at page 38) the following was held:‑‑ "This Court in Muhammad Khan v. Chief Settlement and Rehabilitation Commissioner (PLD 1962 SC 284), considered the effect of evacuee laws and section 4 of the Displaced Persons (Land Settlement) Act, 1958, on the rights of Muslim Pakistani Citizen in respect of property subject to a mortgage and held that a notification under the last mentioned section, in no way, destroyed the rights of non‑evacuees in land in which evacuee had any right under mortgage. It cannot, therefore, be disputed that the successor‑in‑interest of khawas continued to have a right to the equity of redemption in the disputed property, notwithstanding the acquisition of evacuee's interest therein by the Central Government. The position, therefore, is that the Central Government merely stepped into the shoes of the evacuee and was vested only with the rights of mortgage and nothing more." The learned counsel further contends that the Chief Settlement Commissioner issued notifications/instructions from time to time for the redemption of the mortgagee rights and that respondent No.3 acted without jurisdiction in refusing to entertain the case of the petitioners on the ground that it is within the domain of the Civil Court. It is contended that respondent No.3 failed to exercise jurisdiction in the matter so vested in him.

6. It is correct that the impugned order was subject to appeal and the petitioners should have first availed the alternate remedy but there may be cases where the petitioner can approach directly to this Court where order is A without jurisdiction. In any case the petitioner cannot be non‑suited because the writ petition is pending for the last sixteen years and the respondents did not apply for its decision immediately thereafter. The plea of the learned counsel for tire respondents, therefore, is not‑entertainable. In view of above the impugned order dated 26‑4‑1976 passed by respondent No.3 A.C/Collector‑Sub‑Division Gujrat is declared to have been passed without lawful authority and is of no legal effect and the case is remanded to respondent No.3 for fresh decision within six months. Both the parties will be permitted to record evidence, if so desire and to raise all the pleas including issue of limitation particularly raised by the learned counsel for the respondents. However, there is no order as to costs. H.B.T./S‑275/L ` . Order accordingly.