1. KARIMULLAH DURRANI, J.-In Shariat Bench Petition No. 18 of 1979 and Shariat Bench Petition No. 23 of 1979, the petitioners, Moulvi Bilal Hussain of Bilitung, Tehsil and District Kohat and Niaz Badshah of Isak Chauntra, District Kohat, respectively have invoked the jurisdiction of this Bench under Article 203-B of the Constitution of Pakistan to declare Articles 147 and 148 of the Limitation Act, 1908 repugnant to the injunctions of Islam. This order will dispose of both these petitions as the questions raised in both of these petitions are one and the same.
2. When we had already heard the learned counsel for the petitioners, Messrs Muhammad Nazirullah Khan and Z. Mehfooz Khan, Advocates and Mr. Khalid M. Ishaq and Dr. Tanzeel-ur- Rehman, Advocates of Karachi as amicus curiae at great length on the merits of the case, on the second day of the hearing at the fag end of the arguments Sahibzada Akhtar Munir Khan, the Assistant Advocate-General, N.-W. F. P., raised, on behalf of the respondents, an objection to the competency of the Shariat Bench on the ground that the law of Limitation being procedural in nature, was excluded from the expression of law used in Article 203-B of the Constitution as per Explanation to Sub-Article (1) of the said Article. Consequently, the jurisdiction of the Shariat Bench, according to the learned counsel, was ousted.
2. The Explanation to Sub-Article (1) of Article 203-B of the Constitution reads as under :- "Explanation.-In this Chapter "Law" includes any custom or usage having the force of law but does not include the Constitution, Muslim Personal Law, any law relating to the procedure of any Court or tribunal or, until the expiration of three years from the commencement of this Chapter, any fiscal law, or any law relating to the collection of taxes and fees or banking or insurance practice and procedure."
3. Before dealing with the preliminary objection raised by the learned Assistant Advocate-General, we would like to state the case of the petitioners.
4. As stated above Articles 147 and 148 of the Limitation Act are assailed in these petitions. These Articles read as under :- "147.-By a mortgagee Sixty years when the money secured by for for eclosure the mortgage becomes due. or sale.
5. 148.-Against a mort-Sixty years when the right to redeem gagee to redeem or to recover possession or to recover accrues : Provided that all possession of aims to redeem arising immovable pro-under instruments of mort-- perty mortgaged Gage of immovable property situate in Lower Burma which bad been executed before the First day of May 1863, shall be governed by the rules of limitation in force in that Province immediately before the same day."
6. The contention on behalf of the petitioners is that according to the Injunctions of Islam a mortgage does not come to an end. Any law placing limitation on the right of redemption, etc. Of the mortgages would be repugnant to these injunctions. Reliance has been placed on the following verse of the Holy Qur'an, which is 283rd of the Chapter 2 "Albaqra which has been rendered into English by Mr. Muhammad Marmaduke Pickthal in the following words ; "If ye be on a journey and cannot find a scribe, then a pledge in hand (shall suffice). And if one of you entruste to another let him who is trusted deliver up that which is entrusted to him (according to the pact between them) and let him observe his duty to Allah. Hide not testimony. He who hide it, verily his heart is sinful. Allah is Aware of what ye do."
7. By the above quoted verse, mortgage with possession has been allowed (FARHAB MAKBOZA). The word "REHB" with its grammatical variations has been used in three different verses of the Holy Qur'an including the verse quoted above. One of these is the verse No. 21 of Sura "ALTOOR" (52) which is as follows :- rendered into English by the same learned translator it means :- "And they who believe and whose seed follow them in faith. We cause their seed to join them (there), and we deprive them of naught of their (life's) work. Every man is a pledge for that which he bath earned."
8. The second of these is 38th of Sura `ALMUDDASIR" (74). This verse reads :- The English translation by the same Scholar of this verse is as under "Every soul is a pledge for its own deeds."
9. It is clearly established from the above-quoted verses and their English translation that the word "REHN" with its gramatical variation is used for "pledge". This word coupled with the word "MAKBOZA"
10. (with possession) in first quoted verse of the Holy Book, connotes the delivery of possession of the pledged property to the mortgagee.
11. The contention of the learned counsel for the petitioners is that this text of the Holy Qur'an, is not capable of any meaning but that the possession of the pledged property has to remain with the creditor i.e. Mortgagee until the debt is discharged and, therefore, any period of limitation for redemption or foreclosure or for the sale of the mortgaged property could not be imposed by the Legislature as was done under Articles 147 and 148 of the Limitation Act, 1908.
12. Mr. Khalid M. Ishaq and Dr. Tanzilur-Rehman, Advocates who appeared before us on our invitation as Amicus Curiae have supported this contention and have supplemented the arguments of the learned counsel for the petitioners by relying on a saying of the Holy Prophet (Peace be upon him) which has been quoted both by Imam Shafi`e and Imam Malik from different sources (sets of Ravis). The one related by Malik in "MOTA" as it appears in Volume 4 at page 391 is : Abin Maja has also reported this hadith from a different source in which SAEED BIN MUSAIB quoted as a RAVI by Imam Malik also appears as one of the narrators Alzar-qani in his above-quoted SHARAH MOTA explains the meaning of LAIS YAGLAK in this manner : The meaning given by the learned commentators 'had their authority from two arabic poets of re- nown ZAHEER and ALGATAFANI. In plain English it would mean "which does not come to an end nor is wasted by invalidity." In the above-quoted commentaries it has also been stated that even when a covenant has been entered into by the mortgagor with the mortgagee to the effect that on the expiry of a certain period the mortgage, if not redeemed, would come to an end and the pledged property well be deemed to have been acquired by the mortgagee, it would be void as ;it was a custom of JAHLIA and was declared void by the Holy Prophet (Peace be upon him) by saying : LA YAGLKUL REHN The mortgage does not come to .An end or in other words `once a mortgage always a mortgage' is the principle of law applied by the Holy Qur'an and Sunnah in this respect.
13. Both the learned amicus curiae took great pain4 in elaborating the legal position in Islam of the mortgages and established by relying on a number of authorities which include amongst others and the great work of Dr. Tanzil-ur-Rehman himself known as MAJMUA QAWANIN ISLAM, that the Qur'anic Law of mortgages as supplemented by the traditions of the Holy Prophet (Peace be upon hire) and as expounded by the great jurists of the past is to the effect that the mortgages in Islam do not come to an end and remain so till such time as these are redeemed by the mortgagors.
14. After hearing the learned counsel on all the sides, we are clear io ourl mind that the law of limitation vis-a-vis mortgages as laid down in n Articles 147 and 148 of Limitation Act, 1908 is in direct conflict with their Islamic concept of the perpetuity of mortgages. But ax the same time, we find ourselves not in a position to make a categorical declaration of their repugnance to the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah of the Holy Prophet (peace be upon him), as will be seen by the following discussion on the objection to our jurisdiction.
15. The learned Assistant Advocate-General in support of his contention has relied on Girdharilal Son & Co. v--- Kappini Gowder and others (AIR 1938 Mad. 688) and Bankylal v. Babo and others (AIR 1953 All. 747.), both Full Bench decisions.
16. "Limitation is a branch of the Law of procedure and is only a condition annexed to the enforcement of a right and does not affect the right itself."
17. Further, while dealing with the retrospective effect of the procedural statutes the same learned Judge has held:- "it is fairly clear that the law of procedure deals with the process by which a remedy for the enforcement of a right is made available. A right of suit, a right of appeal and a right of distraint are all remedies for the enforcement of a right and they are equally substantive rights though remedial in nature. The law makes a distinction between rules of law which in any way impair or destroy those rights and those which a litigant has to comply with for availing himself of those remedial 'rights. The later belong to the law of procedure and an enactment altering the procedure is always held to be retrospective even where the alteration tends to the disadvantage of one of the parties save in cases where it tends to destroy the right or the remedy."
18. "Rules of limitation are, 'prima facie', rules of procedure and do not create any rights in favour of any person nor do they define or create causes of action but simply prescribe that the remedy could be exercised only up to a certain period and not subsequently."
4. In rebuttal the learned counsel for the petitioners have cited Notes 3 and 4 appended to the preamble of the limitation Act by the learned Com--mentators V. V. Chitaley and K. N. Annaji Rao in their commentary on the Indian Limitation Acct as appearing in its Second Edition (1942) at pages 115 to 117. They have also relied on (Shakoor) Abdul Ganny v. Mrs. I. M. Russell (AIR 1930 Rang. 228) a Full Beach decision and Gajanan Vinayak v. Warren Shakmros (8 1 C 189) in support of their contention that although law of limitation is a procedural law, it has its exceptions. In part it is substantive in nature and for the matter of that provisions of Articles 147 and 148 of Limitation Act, which extinguish the right to obtain remedy from a Court of Law, to that extent would be substantive law. Similar are sections 26 and 28 of the said Act which, according to the learned counsel, one provides for an acquisitive prescription in favour of a person while the other creates an extinctive prescription against him.
5. To appreciate the arguments of the learned counsel for the petitioners the reproduction of the above quoted sections would be useful. These sections read as under: "26. Acquisition of right to easements.-(1) Where 'the access and use of light or air to and . For any building have been peaceably enjoyed therewith as an easement, and as of right, without interruption, and for twenty years.
19. And where any way or watercourse, or the use of any water, or any other easement (whether affirmative or negative) has been peaceably and openly enjoyed by , any person claiming title thereto as an easement and as of right without interruption and for twenty years. the right to such access and use of light or air, way, watercourse, use of water or other easement shall be absolute and indefeasible.
20. Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit, wherein the claim to which such period relates is contested.
(2) Where the property over which a right is claimed under sub-- section (1) belongs to the Government, that subsection shall be read as if for the words "twenty years" the words "sixty years" were substituted.
21. Explanation.-Nothing is an interruption within the meaning of this section, unless where there is an actual discontinuance of the possession or enjoyment by reason of an obstruction by the act of some person other than the claimant, and unless such obstruction is submitted to or acquiesced in for one year after the claimant has notice thereof and of the person making or authorizing the same to be made".
22. "28. Extinguishments of right to property.-At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. "
6. Carr, J. In the Rangoon case cited at the Bar has observed; "in my view the law of limitation whether as applied to suits or as to appeals or apple--cations is something more than mere adjective law and much more than merely rules of procedure. The effect of the law of limitation is to extinguish after the prescribed period a legal right. The law of contract for example, gives a party a right of suit on a contract, but the law of limitation then adds that this right of suit shall cease to exist after a certain period. The result of the two laws together is to create a right of suit available for a certain time. It may be that after that time has elapsed the party still has a moral right to relief, but it is a right which cannot be enforced in a Court of law and, therefore, is no longer a legal right. Thus considered the law of limitation is in my opinion just as much a substantive law as is the law of contract."
23. Similarly, in Gajaran Vinayak's case Mr. Justice Beemon has held that the law of limitation is not always a law of procedure.
24. While discussing the above proposition of law, a reference would be of advantage to the observations of Page, C. J. In the very same above-quoted Abdul Ganny's case which is as follows:- "The Law of limitation, in so far as it prescribes the period within which litigants are entitled to pursue in the civil Courts the remedies which the law provides for the redress of grievances is part of the adjective law. It restricts remedies not substantive rights and as Sir Richard Couch pointed out in Hari Nath Chatterjee v. Mathura Mahan Goswami (1894) 21 Cal. $), the intention of the law of limitation is not to give a right where there is not one but to interpose a bar after a certain period to a suit to enforce an existing right."
25. The learned commentators on the Limitation Act have also thus observed in their notes referred to by the learned counsel for the petitioners:- "The law of limitation is, historically, of a later growth than the law of prescription. It is the procedural acquivalent of the prescription of rights and is, in fact, a kind of imperfect prescription in that it destroys, not the principal substantive right itself, but the accessory right of action only. In other words a law of limitation limits the time after which a suit or other proceeding cannot be maintained in a Court of justice; it does not affect the substantive rights of the parties which remain and continue to be available in other ways."
7. In the light of the above-cited authorities, a comparison of Articles 147 and 148 of the Limitation Act with sections 26 and 28 ibid would show that the law of limitation is different from the law of prescription. Whereas the later prescribe the period on the expiry of which not only D the judicial remedy is barred but a substantive right is extinguished by one and acquired by the other, the former does not destroy the right but only extinguishes the remedy. Except in cases covered by sections 26 and 28 of the Limitation Act, 1908, the law of limitation only takes away the remedy by action or by set off. It leaves otherwise the rights untouched. We may in this context refer to the observations of Mr. Justice Muhammad Munir, C. J. As he then was, in "Municipal Committee, Shaikhupura, Punjab Province (PLD 1951 Lah. 195), which are:- " . . . . . It is an elementary principle of law that limitation can only be set up as a bar to a claim and that by itself it furnishes no cause of action to a party except where section 28 of the limitation Act is applicable and the party in possession of a property has acquired a prescriptive title to it. In such exceptional cases threatened disposses--sion or actual dispossession of the party who has prescribed for the requisite period may constitute a good cause of action for that, party. But where, as in this case section 28 is not applicable, a party cannot sue for a declaration that the remedy against him having become barred by time, his liability has disappeared or that- he has been legally invested with a right and that what was wrongful before the period of limitation had run out has become lawful after the expiration of that period. This result follows from the Rule that statutes of limitation being procedural enactment assume the existence of a cause of action and do not define or create it".
26. Salmond on Jurisprudence (11th Edition page 503) contains the following passage:- "The law of procedure may be defined as that branch of the law which governs the process of litigation. It is the law of action jus guod ad actions pertinet using the term action in a wide sense to include all legal proceedings, civil or criminal."
27. And further at page 505: "The limitation of actions is the procedural equivalent of the prescription of rights. The former is the operation of time in severing the bond between right and remedy; the latter is the operation of time in destroying the right. The former leaves an imperfect right subsisting; the latter leaves no right at all."
28. The following extract from Maxwell on Statutes from Page 222 of its 12th Edition, would also support the above proposition of law:- "No person has a vested right in any course of procedure, but only the right of prosecution or defence in the manner prescribed for the time being, by or for the Court in which he sues."
29. A Full Bench of the Peshawar High Court in Collector Mardan v. Taj Bibi (PLD 1972 Pesh. 199), has held that law of limitation is deemed to be procedural. A Division Bench of the High Court of West Pakistan sitting in Quetta in Dost Muhammad and another v. Rais Satik and other (PLD 1962 Quetta 82), has also, while dealing with the retrospective applicability of the statutes, held:- "The rules of limitation are prima facie rules of procedure and conse--quently no one has any vested right in a period of limitation, unless the contrary follows from the rules themselves. When the limitation Act prescribes a period of limitation for the institution of a particular suit, it does not create any right in favour of any person or define or create causes of action, but simply prescribes that the remedy could be exercised only within a limited period and not subsequently. Nor does the law of limitation create any obligation to sue where none exists."
30. Similarly, a Division Bench of the same High Court sitting in Peshawar in Mst. Sardar Begum v. Mst.
31. Sherin Taja (PLD 1970 Pesh. 194), has thus declared:- ". . . The law of limitation is a procedural law and except for section 28 whereunder a person, by adverse possession, acquires a title in an immovable property, it does not extinguish a right, but only bars the remedy. . ."
32. "... The law of limitation is a law relating to procedure having reference only to the lex fori . . .
33. Although "it is" as Salmond has said (at page 503 of the 11th Edition), "no easy task to say with percision the exact nature of the distinction between substantive law and law of procedure", it would not require much effort in the instant case to distinguish the law as contained in Articles 147 and 148 of the Limitation Act from that prescribed by sections 26 and 28 ibid in regard to acquisitive or extinctive prescriptions. While the latter could be termed as substantive law, the law contained in Articles 147 and 148 of the limitation Act prescribes the time limit beyond which an action cannot be brought in the Court for adjudication. It is, therefore, essentially a part of lex fori constraining a party with a vested right to bring a suit within the prescribed period of limitation. It regulates and restricts the function of the Court and takes away its jurisdiction for acting beyond the same. Consequently, we have to hold that Articles 147 and 148 do not create or extinguish any right of a person but simply prescribe the time limit during which an action can be brought on the relevant subject in a Court. These articles of the Limitation Act, therefore, from that branch of law which is termed as procedural and/or processual and essentially relate to the procedure of Court, as a litigant has to comply with these articles for availing himself of the assistance of the Court for the enforcement of rights vesting in him. Although even after the application of the Articles in question the respective rights of the mortgagee and the mortgagor are left intact in respect of the mortgaged property. These rights could only be extinguished under some other provision of law, which at the moment is not assailed before us.
34. Article 203-B of the Constitution where from the Shariat Bench derives its jurisdiction has placed limitations in its way by incorporating Explanation in the Article under reference which defines law for the purposes of exercise of jurisdiction. By this explanation the law giver has clearly excluded, inter alia, any law relating to the procedure of any Court or Tribunal from the expression "Law" used in the body of the Article in the most clear and unambiguous terms. The ouster of jurisdiction of this Bench qua Articles 147 and 148 of the Limitation Act, 1908, would thus be clearly manifest. The following passage from Maxwell (page 157), on the ouster of jurisdiction by plain words in the statutes may be stated here with advantage:- " . . . . . Viscount Simonds said that the principles that the Legislature could not be assumed to have intended to oust the jurisdiction of the Courts . . . . . . . , except by clear words and that a statute should, if possible, be construed so as to avoid injustice did not "override the first of all principle of construction, that plain words must be given their plain meaning . . . . . . Lord Radeliffe said that "whatever innocence of view may have been allowable to the lawyers of the eighteenth and nineteenth centuries, the twentieth century lawyer is entitled to few assumptions in this field. It is not open to him to ignore the fact that the legislature has often shown in-difference to the assertion of rights which Courts of law have been accustomed to recognise and enforce, and that it has often excluded the authority of Courts of law in favour of other preferred tribunals."
35. Finally, we may refer to the last contention of the learned counsel for the petitioners, which is to the effect that law of Limitation is not an original principle of Muhammadan Law as held by the Privy Council in the famous case of the Shahid Gunj Mosque (AIR 1940 P C 116), which in our mind does not come to their aid. Firstly because although the questions before us in these petitions is essentially of the validity of the law of Limitation in regard to mortgages with possession (RAHAN MAKBOZA) once we come to the conclusion that our jurisdiction does not extend to make any declaration respecting this branch of civil law by virtue of the Explanation to Sub Article (1) of Article 203-B of the Constitution, we would be precluded from entering into any discussion on the subject and secondly, if Muslim Law in its original stat was not conversant with the rules of Limitation, these were introduced by the decrees of the Rulers from time to time at the later stages in respect of certain matters which did not, of course, relate to (REHN) mortgages amongst other matters.
36. Limitation for bringing matters in the Courts was recognised by Muslim Jurists as valid procedural law restricting the jurisdictional sphere of the Courts of Qazis.
37. As we have held ourselves wanting in jurisdiction, it would be an effort in futility on our part to enter into detailed discussion on the Islamic Law relating to mortgages in the light of the very learned discourse of the two eminent Scholars, Messrs Khalid M. Ishaq and Dr. Tanzeel-ur-Rehman, who both of them gave very valuable assistance to this Bench on the question of the validity or otherwise of the Articles in question of Limitation Act, 1908, vis-a-vis the concept of perpetuity of a mortgage with possession (RAHAN MAKBOZA) in the Shariat. Nevertheless, we would be failing in our duty in not putting on record our deep sense of gratitude to both the amicus curiae, who took much pains in the research and in the exposition before us of the state of law on mortgages in Islam.
38. The not result of the above discussion is that howsoever important the question of law is raised before us, we find ourselves lacking in jurisdiction to declare Articles 147 and 148 of the Limitation Act repugnant to the injuc--tions of Islam, but at the same time we cannot refrain from hoping that the Government of Pakistan, in its anxiety to bring the Statute Book of the country in conformity with the tenets of Islam as enjoined by the Holy Qur'an and Suanah, would deem it fit to re-examine the law of Limitation in question in this light and would not hesitate to bring about the desirable changes therein by suitable legislation.