1. DORAB PATEL, J.--In view of the protracted litigation between the petitioner and the respondents, the facts relevant to this petition for leave are complicated but as the petitioner's learned counsel stated that the petitioner would institute fresh proceedings against the respondents, he expressed the hope that we would not make any observation which would prejudice the case of the parties in the fresh round of litigation which the petitioner intends to commence. In view of this request, we would only refer to the facts relevant to this petition in so far as they are relevant to this order.
2. In 1960 Capt. Majid Zakria, the predecessor-in-interest of the private respondents obtained a loan of Rs.16,000 from the petitioner against the mortgage of his land. The mortgage was by way of a conditional sale, therefore there was protracted litigation between the late Capt. Zakria and the petitioner about the entries in the revenue records about this mortgage. And in order to protect his rights, the petitioner filed a suit in the Court of Civil Judge, Lahore, in which he sought a declaration that the mortgage had not been repaid in the prescribed period of one year, therefore, he had become the owner of the mortgaged land. The late Capt. Zakria contested this suit inter alia on the ground that the mortgage was hit by M.L.R.
64. Now the petitioner's suit was dismissed and according to para. 6 of the petition for leave, the trial Court did not make any observation about the mortgage "being not in consonance with the Martial Law Regulation". This averment is not correct, because the learned Civil Judge has clearly stated in his judgment of 30-1-1972, while dismissing the petitioner's suit that "so to my mind the transaction contravenes M.L.R. 64 and is void ab initio". In view of this finding and his other findings, the learned Civil Judge dismissed the suit of the petitioner, therefore, the petitioner challenged the dismissal of his suit in an appeal in the District Court, Lahore, but as the learned Additional District Judge who heard the appeal, agreed with all the findings of the trial Court in the defendants' favour, he also dismissed the appeal by his Judgment dated 19-4-1976. The petitioner, therefore, filed a second appeal I the Lahore High Court but this appeal to was dismissed on 18-4-1978 The petitioner challenged this judgment in a petition for leave which was dismissed on 13-5-1978.
3. Now, in the view of the arguments of the learned counsel, it is necessary to observe here that the High Court held that the question whether the mortgage of the suit land was hit by paragraph 27 of M.L.R. 64 was in the jurisdiction of the Land Commission only an therefore, the jurisdiction of the civil Court to examine this question was barred. Accordingly, the learned Judge set aside the findings of the lower Courts on the effect of M.L.R. 64 on the mortgage in dispute and held that this question could only be decided by the Land Commission. The learned Judge had, therefore, to examine the petitioner's claim that he had become the owner of the land because c the late Capt. Zakria's failure to repay the mortgage within the agree period of one year. The learned Judge rightly held that the stipulation for redemption of the mortgage within the period of one year was a clog on the equity of redemption which was illegal, therefore, he dismissed the appeal of the petitioner.
4. After this round of litigation was over, there were dispute between the late Capt. Zakria and the petitioner about the possession of the suit land and it is relevant to observe that the petitioner claim to have improved the land and constructed houses on it. As the detail of this litigation are not relevant to this order, we would only observe that after the death of Capt. Zakria, the private respondents filed petition under the Redemption and Restitution of Mortgaged Lands Act This application was contested by the petitioner but as it was allowed by the Collector, Lahore, the petitioner filed an appeal before the Commissioner which was dismissed. He then filed a revision before the Member, Board of Revenue, which was also dismissed, therefore, h filed a writ petition in the Lahore High Court against the orders of the Revenue Authorities allowing the application of the private respondent for the redemption of the mortgage. As this writ petition was dismissed in limine by a learned Judge of the Lahore High Court on 29-6-1980 he has filed this petition for leave.
5. As explained earlier, we would refrain from making an observations not absolutely necessary for the decision of this petition therefore, we would only examine Mr. Bajwa's submission that the private respondents were debarred from seeking the redemption of their mortgage, because the mortgage was void as it was hit by paragraph 27 of M.L.R.
64. The short answer to the submission is that it was not raised in the High Court. However, litigation is sought to be prolonged so frequently on the plea that a transaction is void, that w consider it our duty to examine plea.
6. This plea that the mortgage was illegal was raised by the lat Capt. Zakria in the suit filed against him by the petitioner. It ha been accepted by the learned Civil Judge. Despite this finding the mortgage was, what learned counsel described as void, the petition had filed appeals against the judgments of the learned civil Judge.
7. Therefore, it is a moot point whether he can be permitted to take inconsistent positions in his protracted litigation with the respondents. However, even if we assume for the sake of argument that a litigant can blow hot and cold, this Court had refused leave to the petitioner against the judgment of the Lahore High Court. And, in that judgment the learned Judge had held that the question of the effect of M.L.R. 64 could not be examined by the civil Courts, and had to be raised before the Land Commission. As the petitioner has allowed this judgment to become final, he cannot reopen it by invoking the plea that the mortgage is void, because the plea that a transaction is void only means that a transaction is illegal and by describing the transaction as void, the petitioner cannot get round the bar of res judicata. Therefore, his argument cannot be accepted, because of the finding of the Lahore High Court in the judgment by which his second appeal was dismissed.
8. There is another circumstance which disturbs us even more. This plea that the mortgage executed by the petitioner was void is raised by him in a writ petition in order to prevent the mortgagors from repaying to him his advance. If this plea is accepted, it would mean that the mortgagors would never be able to redeem this mortgage, and the petitioner would acquire all the benefits of the ownership of the mortgaged land except that he would not have title to it. This would be contrary to the principle "once a mortgage always a mortgage". And, not only would this nullify the law of mortgages, as set out in the Transfer of Property Act, but it would also be extremely unjust. But a writ petition is a discretionary remedy. As observed by Hamoodur Rehman, C.J., in Raunaq Ali v.
9. Chief Settlement Commissioner PLD 1973 SC 236 at p.259:-- "Therefore, before a person can be permitted to invoke this discretionary power of a Court it must be shown that the order sought to be set aside had occasioned some injustice to the parties. If it does not work any injustice to any party, rather it cures a manifest illegality, then the extraordinary jurisdiction ought not to be allowed to be invoked."
10. In the instant case, if the petitioner's writ had been allowed, it would have led to manifest injustice, therefore, on this ground alone the petitioner's writ merited dismissal and this petition to is without merit.
11. There was a controversy between us on the question whether the petitioner or the private respondents are in possession of the land in dispute. We do not wish to make any observations about this controversy, but as to the petitioner's claim that he had built houses on the land in dispute, the tenth respondent stated on behalf of the private respondents that if the petitioner has built any houses as claimed by him he was free to remove them. This very fair offer has been recorded by us and subject to the same, the petition is dismissed.