JUDGMENT GUL ZARIN KIANI, J. - Petitioners were in revision of the judgment and decree of the lower Appellate Court by which it had affirmed the decree passed by the trial Court on 25.1.1983 and dismissed the suit instituted by the petitioners.
2. Facts of the case bearing on the questions of law involved in the civil revision may be shortly stated:- 40 Kanals, 11 marlas of land at Mauza Sherpur of Tehsil Chunian belonged to Hussaina. He orally mortgaged with possession on the above piece of land to Rana Muhammad Afzal Khan for mortgage-money of Rs. 4.()()()/-. Mutation to give effect to the oral mortgage was entered on 14.3.1960, and. It was finally attested on 16.6.1961. On 12.8.1961, Hussaina took a further sum of Rs.
12,000/- from Rana Muhammad Afzal Khan and agreed to redeem the ' land upon payment of Rs.
16,000/- till 30.12.1975. It was argued that in default of payment of the above amount by the due date, the land-in-dispute shall be deemed to have been outrightly sold to him. The agreement was reduced in writing on 12.8.1961. It was Ext. P.I on file. An affidavit by Hussaina was sworn in support of the agreement. It was Ext. P.2 on file. Hussaina did on 19.5.1962. By inheritance mutation No. 246, sanctioned on 20.12.1962, the land held by him was distributed among his surviving heirs. They were his widow, Mst. Bukhtawar, three sons. Taki Muhammad, Naimat Ali, Rehmat Air and two daughters, namely, Rehmat Bibi and safia Bibi. On 18.2.1975, successors of Hussaina applied to Assistant Commissioner/Collector Chunian for redemption of the mortgaged land upon payment of Rs.
4,000/- as the mortgage money to Muhammad Afzal Khan. Upon refusal to receive notice issued from the Court of Collector Chunian, mortgagee was proceeded against ex-parte. On 2.5.1975, the Collector ordered redemption of the land, subject to an actual deposit of Rs. 4,000/-. Order of the Collector showed that the mortgage amount was already deposited by the successors of Hussaina in the Bank.
3. On 26.6.1975, the mortgagee of the land filed a suit for declaration to challenge the redemption order respecting the land-in-dispute. Petitioners entered appearance but later absented from the trial and were proceeded against ex-parte. On 6.1.1976, the trial Court found that S. 17 of the West Pakistan Redemption and Restitution of Mortgaged Lands Act, 1964, was a bar to exercise of jurisdiction by it and dismissed the suit. Mortgagee preferred an appeal in the Court of District Judge, Kasur. Appeal was heard ex-parte against the respondents in it who were not petitioners in this Court. The appellate Court took the view that the question of jurisdiction of the Civil Court could not be decided in the manner adopted by the trial Court. It found that it was inter-linked with the agreement of sale. Upon this view, it treated the suit as one for specific performance of agreement for sale.
Subject to payment of Court-fee on the said valuation of Rs. 16,500/-. Consequently, the appeal was allowed on 17.6.1977 on the above terms. Upon remand, the plaint was amended for claiming relief of specific performance of agreement to sell executed on 12.8.1961. Amended plaint gave detailed narration of the factual plane of the case. Among the defendants of the suit, Rehmat Ali and Mst. Safia were minors. Their mother, Mst. Bukhtawar was proposed as their guardian-ad-Item . There was no order by the trial Court respecting her appointment as guardian-ad-/hem. Ch. Muhammad Latif, Advocate submitted a power of attorney on behalf of Taki Muhammad and Naimat Ali. Nemat Ali was shown to have thumb marked power of attorney on his on. Behalf and as guardian for minors. Mst. Buhktawar did in course of trial. The trial Court adjourned the suit on some dates for impleadment of her legal representatives. Meanwhile, the sun was transferred by an administrative order to another Court. Transfer of suit was visible from the order of the trial Court recorded on 8.10.1978. Upon transfer of the suit, it was registered in the transferee Court and notices for pairvi were issued to the parties and their counsel. On 24.2.1979, Ch. Muhammad Akram, Advocate submitted his power of attorney on behalf of defendants No. 2 to 5. Namely, Taki Muhammad. Nemat Ali, Rehmat Ali and Mst. Rehmat Bibi. On 21.3.1979, it was noted that Mst.
Bakhtawar-defendant No. 1 was dead and her heirs were already on record. On the same day. The trial Court deleted her name from the record and ordered for notice pairvi to Mst. Rehmat Bibi and personal attendance of Taki Muhammad and Nemat Ali. On 2.6.1979. After recording the presence of the counsel for the plaintiff and defendants No. 2 to 5, it was noted in the order sheet that Rehmat Ali-defendant No. 4 and Mst. Safia Bibi-defendant No. 6 had attained majority. As far defendant No. 4. Ch. Muhammad Akram, Advocate had submitted his power of attorney and - notice*was issued for appearance of de. Lendant No. 6 only. After some adjournments, it was noted in the order sheet, on 7.1.1980. That defendant No. o was dead and other defendants on record were her heirs and since Ch. Muhammad Akram Advocate had not appeared, the defendants were ordered to be proceeded against e.x-parte. On the same day, the trial Court directed taking of proceedings for the appointment of guardian-ad Item of defendants No. 4 and 6 and adjourned the case till 13.1.1980. On this date of hearing. Reader to the trial Court was appointed as guardian - ad-Item of the aforesaid two defendants and adjourned the case for filing of written statement on their behalf. The Reader filed written statement on behalf of defendants No. 4 and 6. On 8.3.1980, the trial Court settled issues. These were:-
(1) Whether the deceased Hussna, the predecessor-in-interest of defendants mortgaged the suit land for consideration of Rs. 4,000/- in favour of the plaintiff? OPP C.C. 39
(2) Whether the deceased Hussna, the predecessor-in-interest of the defendants second time mortgaged the suit land in favour of the plaintiff for additional consideration of Rs. 12,000/- with the stipulation that in case total amount i.e. Rs. 16,000/- is not paid to the plaintiff by 30.12.1975, then the suit land shall stand sold to the plaintiff vide agreement dated 12.8.1961? OPP
(3) Whether the order of the Collector dated 2.5.1975 for redemption of the land in question is illegal, void and inoperative qua the plaintiff's right? OPP
(4) Whether the plaintiff is entitled for specific performance of the agreement dated 12.8.1961? OPP
(5) Whether this Court has jurisdiction to try the suit? OPP
(6) Relief.
Alter settlement of issues, respondent Muhammad Afzal Khan gave evidence in support of his case and concluded on 15.12.1982. The guardian- of defendants No. 4 did not produce any evidence and the suit was adjourned for hearing of arguments on number of dates. Once again by an administrative order, the suit was transferred to another Court, as was evident from the order passed by the trial Court on 12.5.1982. Eventually, the suit for specific performance was decreed against the petitioners on 25.1.1983. On 23,5.1983, they applied for ^certified copies of the judgment and decree passed against* them. Copies were prepared and delivered to them on the same day.
On 25.5.1983, petitioners pre I erred an appeal in the Court of District Judge, Kasur. Alongwith the Memorandum of Appeal, they submitted a petition u/S. 5 of the Liu nation Act, 1908, for seeking condonation of delay. It was averred in the Memorandum of Appeal as well as the petition u/S. 5 of the Limitation Act that they had no knowledge of the proceedings taken against them. Respondent did not file a counter-affidavit. Without touching the merits of appeal, it was dismissed and barred bv limitation by learned Additional District Judge, Kasur. Against his decision, a revision was filed in this Court. It was admitted on 3.4.1985.
4. Upon hearing the learned counsel for the parties and examination of the original record, civil revision deserves to be allowed for a re-trial of the suit in the trial Court, after allowing fresh opportunity of defence to the petitioners. The reasons for remand were three fold, and, I shall advert to them in seriatim in the succeeding lines. Defendants No. 4 and 6 were minors. Their real mother was proposed in the plaint to act as guardian-ad-Item for them. She did not accept the appointment nor was there any order of the trial Court for her appointment its their guard an- at-/altrem. Meanwhile, she had expired. In course of trial, these defendants h attained majority.
Statement to that effect was available on record of the trial Court.
Ch Muhammad Alcram, Advocate gave power of attorney on behalf of defendant No. 4 as major, but there was no power of attorney in his favour on behalf of . Defendant No. 6 who also was shown to have become major. The trial Court did not pass any express order for declaring defendant No. 4 ex-pane. As far defendant No. 6, it issued notice to her. Later, by a strange phenomenon, both defendants No. 4 and 6 were again treated as minors and Reader to the trial Court was appointed as their guidan -ad-Item . After these defendants had attained majority, there was no need to put them under the protective cover of an official guardian-ad- term. No notice was ever issued by the trial Court to them to join the proceedings.
At least, so far as defendant No. 6 was concerned, there v as no record to support it. It was true that though defendant No. 6 was dead and other defendants were her heirs, yet there was no evidence as to the actual, date of her death. There was no provision in the Civil Procedure Code in respect of a minor defendant attaining majority. Therefore, the minor defendant who comes of age may, if he thinks fit, come on the record and conduct the defence himself. A specific notice to him was not required by law, though, in the circumstances of a particular case such notice may 'be found necessary, In my opinion, in the circumstances of the case .Reproduced above, a notice to defendant No. 6 was necessary, although it was unnecessary so far as defendant No. 4 was concerned because a power of attorney on his behalf was already filed in Court by Ch, Muhammad Alcram, Advocate, who later defaulted in appearance in Court! It was clear from the events noticed above that the trial Court was not alive to the record and made unjustifiable orders leading to a solvently defence of the suit by the petitioners. Further, the suit was twice / transferred administratively on 12.5.1982 and 18.11.1982 to different Courts without an intimation to the petitioners. It was imperative to issue notices to the parties informing them that the case laid been transferred from one Court to another. In absence of such a notice, 3 party could well plead that he did not know in what Court he had to appear. The fact that a notice was required for the act of transfer of a suit under an administrative order was supported by cases reported in AIR 1918 Patna 341, A.I.R. 1923 Lahore 444, PLD 1950 Lahore 82, PLD 1962 (W.P.) Lahore 1041, PLD 1975 Lahore 879, PLD 1985 Lahore 326. Last decision was given by me. Even an order for ex-parte proceedings against a particular defendant did not deprive him of a right to receive notice on transfer of the suit by an administrative order, In the facts of the case, S. 24-A of the Code of Civil Procedure was inapplicable. Secondly, defendant No. 4 was never marked absent in any order of the trial Court and as far defendant No. 6, she was not properly served in the suit. Appointment of Reader to the trial Court as her guardian-ad-Item , when s. She had already attained majority was not helpful to her defence. Apart from afore- slated defects in the trial of the suit, it suffered from another material defect founded on S. 10 of the Punjab Alienation of Land Act, 1900 (Act XIII of 1990). Initially, the land was mortgaged for a sum of Rs. 4,000/-. By agreement Ext. P.I, a further sum of Rs.
12,T)00/- was received by the mortgagor on the security of the mortgaged land and it was agreed that if the land was not redeemed by a specified date upon payment of Rs. 16,000/-, it shall be deemed to have been outrightly sold. In my view, agreement Ext. P. 1 partook of a mortgage by way of conditional stile. S. 10 of the Punjab Alienation of Land Act appeared to be clearly prohibitive of the creation of mortgage by way of conditional sale. It provided that "in any mortgage of land made after the commencement of this Act, any condition which is intended to operate by way of conditional sale shall be null and void". The section did not invalidate the mortgage of the land altogether but it was void qua the condition of conditional sale. Therefore, subject to proof of later transaction contained in Ext. P. 1, the impact of S. 10 of the above Act regarding it was required to be seen. If the later transaction was held to be an additional mortgage of the land, the suit for specific performance for its sale may not be competent. In Allah Din v. Fateh Din-31 Punjab Record 1918, Punjab' Chief Court gave effect to S 10 of Punjab Alienation of Land Act, though the point was not taken in the lower Courts. Mr. Justice Shadi Lai of the Punjab Chief Court commenting on the applicability of S. 10 of the above Act observed: "The learned counsel on both sides wanted to argue the same points before me, but I drew their attention to S. 10 of the Punjab Alienation of Land Act, which provides that in any mortgage of land made after^ the commencement of the Act any condition which is intended to operate by 'way of conditional sale shall be null and void, it is clear that the Act came into force on the 8th June. 1901 before the date of the mortgage in question, and that the circumstance that the mortgagor was not a member of an agricultural tribe does not make any difference so far as the operation of the section is concerned. The language of the enactment is wide enough to include every mortgage which contains a stipulation as to conditional sale, and if is absolutely immaterial whether the mortgagor is or is not a member of an agricultural tribe, it is true that this point was not raised either in the Courts below or by the learned counsel in this Court, but it is patent upon the record and I am bound to give effect to the law which I find, is clearly applicable to the case."
Somewhat similar views were expressed in Debi Sahai. v. Ramji Lai No. 56 Punjab Record 1918, and Chhaju Ram v. Muzaffar Ahmad (AIR 1936 Lahore 845) by a Division Bench of this Court.
5. Since the matter was not looked at and tried in their perspective because of the omission of the petitioners to give defence on it, I think it was necessary to further examine it properly by allowing a sufficient opportunity to the parties for adverting to it.
6. In view of 'afore-noticed facts and circumstances of the case, civil revision is allowed, impugned judgments and decrees hereto passed in the civil suit are set aside and the same is remanded to the trial Court for its retrial in accordance with law and the observations made above, after allowing a reasonable opportunity of defence to the petitioners which shall include an opportunity to file written statement by them. Costs shall follow the event.
7. Records be remeted . Parties shall appear in the trial Court on 10.4.1993. In the event of their non- appearance, the trial Court shall issue follow up notices to them for procuring their appearance before it.