UMAR BAZ KHAN through L.Hrs. vs Syed JEHANZEB and others

EJAZ AFZAL KHAN, J - This appeal with the leave of the Court has arisen out of the judgment dated 11.04.2000 of a Division Bench of Peshawar High Court whereby it allowed the writ petition filed by the appellants and set aside the orders of the fora below and restored the order dated 19-11-1974 of the Assistant Political Officer.

2. The facts of the case, points raised and noted at the time of granting leave have been mentioned in detail in the leave granting order which reads as under :-- "This Civil Petition for leave to appeal is directed against the judgment dated 11-4-2000 of the learned Division Bench of Peshawar High Court, Peshawar whereby Writ Petition No, 229 of 1987 filed by the respondents was allowed.

2. Briefly stated, the facts leading to the filing of the petition are that on 23-12-1965 Syed Badshah Gul, father of the respondents mortgaged land 'ineasuring 216 kanals 13 marlas situated in Wand Jharay, Sakha Kot area, Malakand Agency through mortgage deed in favour of petitioner. Umar Baz Khan against a sum of Rs, 1,20,000/- for a period of six years with possession. Failing to refund the mortgage money within the above period, the property so mortgaged would be deemed to have been sold to the mortgagee with further payment of Rs,30,000/-. The mortgagor offered the mortgage amount for redemption before expiry of the period but mortgagee was reluctant to receive the money and prolonged the negotiation in order to expire the stipulated period. The mortgagor approached A.D.M. Chakdara on 13-12-1971 (10 days before the expiry of stipulated period) through an application mentioning that the mortgagee is reluctant to receive mortgage money and had also cut down 90 trees. The above claim was denied by the mortgagee and claimed that he had become owner of the property in terms of the mortgage deed. On 6-4-1973 the dispute was referred under the Frontier Crimes Regulation 1901 (Regulation III of 1901) to the Council of Elders who vide 3/4 majority recommended oath to the mortgagee and held that in case he took Oath the claim of mortgagor for redemption would be rejected and mortgagee would be asked to deposit Rs,30,000/- within a week. Failing to take oath the claim of mortgagor was to be decreed on payment of mortgage amount. The said Award was accepted by the petitioner whereas refused by the respondents. Meanwhile F.C.R was repealed through Regulation-I of 1973 with effect from 23-8-1973.

3. Due to repeal of F.C.R. It was ordered that the case shall be decided under the ordinary law of the land and Assistant Collector 1st Grade Malakand Agency, Dargai decreed the suit of plaintiff mortgagor on 19-11-1974. The mortgagee-petitioner preferred an appeal to the Commissioner, Malakand Division, Saidu Sharif Swat-respondent No, 14 who accepted the appeal, set aside the above order and remanded the case for disposal under F. C.R. Vide his order dated 10-5-1975.

4, Petitioners preferred revision petition before the Deputy Secretary-111 Home and Tribal Affairs Department, Peshawar who maintained the order of the Commissioner, Malakand. Ultimately, Council of Elders consisting of five members under the F.C.R. Gave an award dated 19-6-1978 directing the mortgagee to take an oath about the payment of mortgage money in time which was taken by him in absence of the respondent/mortgagor. The award of the Jirga was accepted by the A.D.M. Malakand vide order dated 24-6-978 which was challenged in revision petition before the Commissioner but the same was dismissed on 27-2-1980. The respondents challenged the above order through Writ Petition No,211 of 1980 which was admitted to full hearing but was subsequently withdrawn on 132-1984 with the permission to file a fresh one. Since the matter was remanded so as per decision of Jirga accepted by the A.D.M. The suit of the mortgagor for the redemption was dismissed and it was declared that the mortgagee had become absolute owner of property in his possession.

5. It was again in April 1987 respondents filed Writ Petition No,229 of 1987 before the Peshawar High Court which was allowed and the concurrent findings of ADM Dargai, the Commissioner Malakand and Deputy Secretary-Ill Home and Tribal affairs Department, Government of NWFP were set aside and the order dated 19-11-1974 of the Assistant Collector 1st Grade Malakand Agency at Dargai was restored.

6. We have heard Qazi Muhammad Anwar, learned Sr. ASC on behalf of the petitioners as well as Mian Younis Shah, Sr. ASC for the respondents in detail and have gone through impugned judgment as well as record and proceedings of the case in minute particulars.

7. Learned counsel for the petitioners mainly contended that the writ petition filed by the respondents before the learned High Court was hit by (laches) as the earlier petition was withdrawn on 13-2-1984 and the later one was filed on 10-3-1987 after a lapse of about three years.

He attacked the impugned judgment of the High Court and stated that learned High Court while condoning the delay has not advanced any valid reasons. He next contended that the orders of the hierarchy under F.C.R. Were given effect by administering oath to the petitioner-Omar Baz Khan, thus the petition had become infructuous- and was not competent. According to him, after the repeal of F.C.R. The proceedings conducted under the same would be valid as protected under Article 264 of the Constitution of Islamic Republic of Pakistan, 1973 and section 6 of the General Clauses Act and the repeal would be of no effect. In support of the above contentions, he placed reliance on the case-law reported in Sardar Nawab Haji Muhammad v. Additional Commissioner and Commissioner, Frontier Crime Regulation, Quetta Division Quetta and others (PLC 1964 (W.P)

Lahore 401-407) and Abdul Samad and others. v. Painda Muhammad and others (PLD 1997 Pesh: 35).

8. Controverting the above contentions, Mr. Younis Shah, learned Sr. ASC for the CaveatorsIrespondents stressed that the learned High Court has dealt with point of limitation in detail in paragraph 8 of the impugned judgment keeping in view the principle laid down by this Court in the case of Chairman, District Screening Committee v. Sharif Ahmad Hashmi (PLD 1976 SC 258) wherein, the delay of 8 years in filing the petition was condoned. With regard to the administering of Oath to the petitioner-Umar Baz Khan he contended that the Oath was neither in terms of award nor it was in accordance with the general principles of law as envisaged in the Oaths Act, 1873 extended to that area through Regulation No, II of 1976. The respondents were also not duly served when petitioner-Umar Baz Khan was given Oath which is the matter of record.

According to him, the F.C.R. Was merely a procedural law and not a substantive law thus its repeal would not be retrospective in effect. Moreover, the amendment was made with regards to criminal law only and was called as West Pakistan Criminal Law (Amendment) Act (VII of 1963). No such amendment was made in the Civil Law and thus the civil cases pending in the Courts would not be effected. In support, he referred the cases pending in the Courts would not be effected. In support, he referred the case of National Bank of Pakistan v. Taj Muhammad (PLD 1984 Lah. 417).

9. He lastly contended that even if clog on the right of redemption mentioned in the mortgage deed is taken into account the petitioner would have become the owner only if he had paid the remaining amount of Rs,30,000/- which admittedly has not been complied with. It is also on the record that the respondents had approached the authorities under F.C.R. Ten days before the expiry of six years, the stipulated mortgage period.

10. In this view of the matter, we are inclined to grant leave to appeal to consider, inter alia, the above-mentioned contentions".

3. The first contention of the learned counsel for the appellants was that where the first writ petition was dismissed as withdrawn with the permission to bring a fresh on payment of Rs,500/- as cost, the fresh petition was liable to he dismissed for non-payment of cost. The learned counsel to support his contention placed reliance on the cases of "Ambubai Hanmantrao v. Shankarsa Nagosa" (AIR 1925 Bombay 272(1), "Guran Ditto Mal and others v. Banna Mal deceased through Sain Dass and others" (AIR 1958 Punjab 469 (V 45 C 138) and "Haji Abdul Rashid Sowdagar. v. S.M.

Lalita Roy and others" (PLD 1959 SC (Pak) 287). The second contention of learned counsel was that where the fresh petition was filed three years after the withdrawal of the first and no explanation much less plausible was offered for such delay, it was liable to be dismissed on the ground of laches. The third contention of the learned counsel was that where the proceedings were initiated under the FCR they were to continue there-under notwithstanding its repeal in the later years. The learned counsel to support his contention placed reliance on the cases of "Sardar Nawab Haji Muhammad Khan v. Additional Commissioner and Commissioner, Frontier Crimes Regulation, Quetta Division, Quetta and others" (PLD 1964 (W.P) Lahore 401), "Abdul Samad and others v.

Painda Muhammad and others" (PLD 1997 Peshawar 35). The fourth contention of the learned counsel was that where the order 'passed by the fora functioning in the hierarchy of FCR were given effect by administering oath to the predecessor-in-interest of the appellants, the dispute not only stood resolved but also attained finality, therefore, the writ petition filed against such order for having become infructuous could not have any other fate but dismissal. The fifth contention of the learned counsel was that the High Court could not have exercised its constitutional jurisdiction without adverting to the violation of the provisions of the F.C.R. As otherwise there was no occasion for it to interfere with the orders of the fora below. The sixth contention of the learned counsel was that no provision of the Transfer of Property Act, could be applied to the case in hand as this law has not been extended to the Tribal Area where this property is situated. The next contention of the learned counsel was that where the question of laches was raised, it should have been decided in clear and unambiguous terms but unfortunately it has been conveniently avoided as is evident from the impugned judgment. The last contention of the learned counsel was that where none of the questions going to the root of the case has been attended to, the judgment thus rendered cannot be maintained.

4. The learned counsel appearing on behalf of the respondents contended that the very stipulation, in the mortgage deed, that the mortgage would turn into an absolute sale on further payment of an amount of Rs,30,000/-, if the mortgagor did not pay the mortgage money on the expiration of six years, being a clog on the equity of redemption is void and incapable of being enforced, therefore, it has to be left out of account. The learned counsel to support his contention reliance has been placed on the cases of "Dharba Veera Venkata Satyanarayana and another v. National Insurance Co. Ltd., Calcutta" (AIR (34) 1947 Madras 51), "F.X.D. Pinto and another v. Sheenappa Malli and others" (AIR (38) 1951 Madras 524), "Manik Chand Raut v. Baldeo Chaudhary and others" (AIR

(38) 1951 Patna 327) and "Abdul Sattar v. Mst. Sardar Bequm and 12 others" (1992 SCMR 417). At a stage, the learned counsel argued, that an effort was made to resolve the dispute between the parties on the basis of oath and accordingly a statement of the predecessor-in-interest of the appellants was recorded but all this happened at the back predecessor-in-interest of the respondents, therefore, such proceedings being nullity in the eye of law cannot create any right in favour of the appellants. Failure on the part of the respondents to pay the cost, the learned counsel maintained, is not a defect of the type which could non-suit the respondents that too when it is neither wilful nor contumacious. The learned counsel to support his contention placed reliance on the case of "Malang Dad v. Mst. Mah Pan and others" (PLD 1993 SC 6). Laches, maintained the learned counsel, can be made basis for disMissal of a petition but not in the cases where dismissal tends to perpetuate injustice. The learned counsel to support his contention placed reliance on the cases of "Pakistan Post Office v. Settlement Commissioner and others" (1987 SCMR 1119) and "Masood Begum through Legal Heirs v. Government of Punjab through Secretary Forest, Lahore and 9 others" (PLD 2003 SC 90). The learned counsel by referring to the order dated 19-11-1974 of the Assistant Political Officer contended that it being just and proper could. Not have been set aside on any technical ground and that the High Court acted in aid of Justice by restoring the aforesaid order.

5. We have gone through the entire record carefully and considered the submissions of the learned counsel for the parties.

6. The first contention of the learned counsel for the appellant that the second petition was liable to be dismissed for non- payment of. Cost has not moved us as it being based on a rule of procedure rather than law, cannot be applied to every case with blithe disregard for its facts and circumstances. Failure to pay the cost is, of course, a fault but not of a magnitude as could be made a ground for dismissing a petition, voicing a grievance against an injustice of grave nature.

The more so when it can be rectified by giving the litigant a chance to do the needful. In the case of "Malang Dad v. Mst. Mah Pari and others" (supra), this Court while dealing with a similar situation held as under :- "10. We have considered the question, whether we should allow the payment of the cost by the appellant at this stage. In this regard, it may be pertinent to refer rule 6 of Order XXXIII of the Pakistan Supreme Court Rules, 1980, which provides that "nothing in these rules shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court".

11. In our view, it will not be just and proper to deny two concurrent judgments in favour of the appellant on the above technical ground. The High Court should have, in our view, directed the appellant to pay a reasonable amount as costs to the respondents besides the above amount of Rs,100 for condoning the above lapse on his part".

The judgments rendered in the cases of "Ambubai Hanmantrao v. Shankarsa Nagosa" (supra), "Guran Ditta Mal and others v. Banna Mal deceased through Sain Dass and others" (supra) and "Haji Abdul Rashid Sowdaqar v. S.M. Lalita Roy and others" (supra) cited by the learned counsel for the appellants loose their force, if at all they had any, in view of the judgment of this Court rendered in the case of "Malang Dad v. Mst. Mah Pari and others" (supra). The case of "Haji Abdul Rashid Sowdagar v. S.M. Lalita Roy and others" (supra) too would not support the case of the appellants as it was left to the discretion of the Court to determine whether the condition has ,or has not been fulfilled and what could be the consequence of its omission in the circumstances of the case before it. In any case, such objection has to be taken at the right time and in the right forum. Where it has not been so done, it cannot be over played before this Court.

7. The argument that where the fresh petition was filed three years after the withdrawal of the first and no explanation much less plausible was offered for such delay, it was liable to be dismissed on the ground of laches is not one of the universal application as could be applied in every B case without examining the dictates of equity, justice and fair play and circumstances of the case. Nor could it be treated at par with the Law of Limitation prescribing period for enforcing a right or liability and requiring the Court to dismiss a lis if not filed within such period. No Court would dismiss a lis on the ground of laches if it defeats the cause C of justice and thereby perpetuates an injustice. If we consider the bar of laches, in the given facts and circumstances of this case, we would not feel inclined to interfere with the judgment of the High Court -and thereby encourage the appellants who strove hard and are striving still to barricade the redemption of mortgage on purely technical grounds. This Court while dealing with the bar of laches in the case of "Pakistan Post Office v. Settlement Commissioner and others" (supra) held as under:-- "C. -- It needs to be emphasized that there is absolutely no justification to equate laches with statutory bar of limitation. While the former operates as a bar in equity, the latter operates as a legal bar to the grant of remedy. Thus, in the former, all the dictates of justice and equity and balance of legitimate rights are to be weighed; in the latter, subject to statutory relaxations in this behalf, nothing is left to the discretion of the Court - it is a harsh law. Thus, passage of time per se brings the statute of limitation in operation, but the bar of laches does not deny the grant of right, or slice the remedy unless the grant of relief, in addition to being delayed, must also perpetuate injustice to another party. It is also in this very context that the condonation of delay under section 5 of the Limitation Act will be on different harder considerations than those in a case of laches. For example, while it is essential to explain and condone the delay of each day vis-a-vis statutory limitation, there is no such strict requirement in cases of laches".

' The same principle was reiterated in the case of Masood Begum through Legal Heirs v.

Government of Punjab through Secretary Forest, Lahore and 9 others" (supra). Even otherwise, bar of laches cannot be over emphasized in the cases where the relief claimed is based on recurring cause of action.

8. The argument that where the orders passed by the fora functioning in the hierarchy of FCR were given effect by administering oath to the predecessor-in-interest of the appellants, the dispute not only stood resolved but also attained finality, is also without force because once the order redeeming the property on payment of mortgage money was passed in conformity with the law, we don't think it could be legally set aside on any technical ground.

9. How an oath could be administered to the mortgagee in the absence of the mortgagor when he neither offered it nor accepted the offer for resolution of dispute on its basis? If at all the resolution of dispute was sought to be made on the basis of oath, it should have been, in the first instance offered to the plaintiff- mortgagor and then to the defendant-mortgagee. The former under no circumstances, could be put F in the labyrinth of procedural formalities when he approached the competent forum for redemption of his property before the expiration of the period stipulated in the deed. His case was to be decided there and then when he was willing, and at no stage of the proceedings, refused to pay the mortgage money to the mortgagee. The order dated 19-11-1974 redeeming the property on payment of mortgage money was just and proper from whatever angle it is looked at. Commencement of the proceedings under the FCR and its repeal in the later days would not change the nature of the litigation nor the nature of the relief asked for. Remand of the case to any form on any technical ground was absolutely uncalled for and without jurisdiction.

Especially when it could not have served any purpose except adding to the agonies of the parties.

It was thus rightly set at naught, by the High Court in the exercise of its Constitutional jurisdiction.

Therefore, the argument that there was no occasion for the High Court to interfere with the orders of the fora below without adverting to the violation of the FCR is not legally tenable. The judgments rendered in the cases of "Sardar Nawab Haji Muhammad Khan v. Additional Commissioner and Commissioner, Frontier Crimes Regulation, Quetta Division, Quetta and others" (supra), "Abdul Samad and others v. Painda Muhammad and others" (supra) are, therefore, not germane to the case in hand.

10. Yes, the stipulation in the deed that in case the mortgage is not redeemed after the expiration of the period agreed upon the mortgage shall turn into an absolute sale on payment of an additional amount of Rs,30,000/-" is a clog on the equity of redemption but the occasion to apply this principle has not arisen in this case, as the mortgagor at no stage refused to pay the amount. He, in fact, approached the Court, before the stipulated time for redemption of the property and offered the mortgage money. Therefore, the cases of "Dharba Veera Venkata Satyanarayana and another v. National Insurance Co. Ltd. Calcutta" (supra), "F.X.D. Pinto and another v. Sheenappa Maul and others" (supra), "Manik Chand Rauf v. Baldeo Chaudhary and others" (supra) and "Abdul Sattar v. Mst. Sardar Begum and 12 others" (supra) cited by the learned counsel for the respondents would not have much relevance to this case. The argument of the learned counsel for the appellants that no provision of the Transfer of Property Act could be applied to the case in hand when it has not been extended to the Tribal Area where the property is situated, too, would loose relevance when the order redeeming the property has been passed independently of and without reference to such provision.

11. The last argument of the learned counsel for the appellants is also without substance when all the crucial aspects of the case have been clearly and squarely dealt with in the impugned judgment. It, thus, appears to have been delivered on correct premises of law and facts. We, therefore, do not feel persuaded to interfere therewith.

12. For the reasons discussed above, this appeal being without merit is dismissed.