Allah Ditta was the owner of the land measuring 73 Kanals and 16 Marlas; he mortgaged the aforesaid land in favour of the present petitioners vide mortgage deed dated 24-2-1981 for a mortgage money of Rs.45,000. In the mortgage deed, it is stipulated between the parties, that Allah Ditta shall not alienate the suit property, till the period of mortgage i.e. 10 years is lapsed or the property is redeemed earlier. Subsequently, the petitioners on 5-5-1987, brought a suit seeking injunction against Allah Ditta from selling the property, in violation of the condition of the mortgage.
Allah ditta appeared before the Court and stated that for the time being he had no intention of selling the property, resultantly, the plaint was rejected by the learned Civil Judge, holding that the plaintiffs/petitioners have no cause of action and besides, there cannot be any- clog upon the right of Allah Ditta, to sell the property in question. Again the petitioners brought a suit on the basis of same cause of action, which was dismissed by the learned Civil Judge, on account of proceedings and order passed in the earlier suit, vide order dated 19-1-1988. On 20-1-1988, Allah Ditta, sold the property in favour of the respondents. The petitioners filed an appeal against the order dated 19-1-1988, which came up for hearing before the learned A.D.J. -on 8-2-1989 and the learned -Court dismissed the same with the following observation:-- "It is not understood how the appellants/plaintiffs were competent to file the present suit when section 11, C.P.C. Is in their way. In fact, the appellants should have filed an execution petition for getting execute the decree of the trial Court passed earlier on the basis of the statement of the respondent/defendant. To this effect, Order 21 rule 32, C.P.C. Is very much clear."
After this order, the petitioners applied under Order 21, Rule 32, C.P.C. Which application was accepted by the learned Executing Court vide order, dated 5-10-1989 and the sale in favour of the respondents was annulled. Aggrieved, respondent filed a revision before the learned A.D.J. Which was the competent forum at the relevant time. However, subsequently, through the statement, dated 22-1-1994, counsel for the respondents, withdrew the revision petition, which was refiled before this Court as C.R. No. 1751 of 1994. It seems from the record that because of the change in law, this revision petition, was transferred to the learned District Judge, and has been allowed by the learned A.D.J., through the order, dated 20-2-1997, and the order of the learned Executing Court passed on the application of the petitioners under Order 21, Rule 32, C.P.C., has been set aside. It has been held by the revisional Court that no condition could have been imposed upon Allah Ditta, in the mortgage deed, from selling the property of which, he was owner; such condition is absolutely nullity in the eyes of law, which could not be enforced. It is also the view of the revisional Court that there was no decree passed in favour of the petitioners, which could have been executed under Order 21, rule 32, C. P. C.
2. It may be pertinent to state here that the learned counsel for the petitioners, has also pointed out that during the period, when the revision was pending before the learned revisional Court, the respondent Allah Ditta, through the agreement to sell, dated 19-10-1989, had agreed to sell the property, in favour of the petitioner, which agreement was not subsequently fulfilled by Allah Ditta, constraining the petitioner to file a suit for specific performance on 2-11-1989, which suit has been decreed on 25-1-1990 and the sale-deed dated 1-3-1990, executed in favour of the petitioners, followed by Mutation No. 115 dated 12-2-1994.
3. Anyhow, learned counsel for the petitioners contends that counsel for the respondents had unconditionally withdrawn the civil revision, against the order, dated 5-10-1989, from the Court of learned A.D.J., through statement dated 22-1-1994 and therefore, second revision before this Court C.R. No.1751 of 1994, which stood transferred to the learned A.D.J. On account of change of law, was absolutely incompetent. It is stated that respondents did not withdraw the revision with permission to file afresh, before this Court and therefore, revision petition was hit by the provisions of Order 23, Rule 1, C.P.C. It is also stated that second revision petition challenging the order, dated 5-10-1989, filed on 16-2-1994, was barred by time. The learned counsel argued that it is the duty of the Court, under section 3 of the Limitation Act, 1908, to see, if a lis is within time, or otherwise and if any cause is beyond the limitation, even if against a void order, the Court is obliged to dismiss the action as barred by time. In this behalf, he has placed reliance on the cases reported as Dilmir v. Ghulam Muhammad and others PLD 2000 SC 403; Messrs Conforce Ltd. v. Syed Ali Shah and others PLD 1977 SC 599 and Muhammad Raz Khan v. Government of N.-W.F.P. And another PLD 1997 SC 397.
3. Learned counsel for the respondents, while replying, states that revision petition from the Court of learned A.D.J. On the basis of statement dated 22-1-1994, was withdrawn with an object to file the same before this Court, because while pendency of said revision petition, on account of change in law, the learned A.D.J. Was left with no jurisdiction to hear the revision, which could only be decided by the High Court. It is on account of above, that the petition was withdrawn, therefore, Revision Petition No.1751 of 1994 refiled before this Court, is in fact continuation of the earlier revision petition.
Thus there is no question of limitation involved in the matter. Even otherwise, it is stated that revision petition before this Court, was filed within 25 days of the withdrawal of the revision petition from the Court of learned District Judge, and in the circumstances, petitioners could have availed their remedy within 90 days i.e. Original period of limitation provided for the revision petition, after the District Judge lost jurisdiction to hear the revision petition, because of the change in law. It is also submitted that no decree had been passed in favour of the petitioners by the learned Civil Judge, when their plaint was rejected on 30-11-1987, due to lack of cause of action, resultantly, there is no question of the application of Order 21, rule 32. It is further submitted that according to Article 23 of the Constitution, no clog could be placed upon the fundamental rights of the Allah Ditta, to use, hold and dispose of his property, therefore, any stipulation in the mortgage deed, dated 22-4- 1981, was void ab initio and could not be enforced. He further argued that the so-called undertaking given by Allah Ditta, before the trial Court, in the first suit filed by the petitioners was not that he for indefinite period of time, does not intend to dispose of the property, rather he states: This is no undertaking in law, which could be invoked to deem that a decree has been passed in favour of the petitioners, enforceable under the provisions of Order 21, Rule 32. Lastly, it is submitted that even if any property has been sold in violation of undertaking, is not void. In the instant case, respondent is bona fide purchaser, having no knowledge about any litigation pending between the petitioner and Allah Ditta, or about any condition in the mortgage deed.
4. I have heard learned counsel for the parties. The objection of the learned counsel for the petitioners, that revision petition of the respondents in which, the impugned order has been passed was out of limitation, suffice it to say that against the order of the learned Executing Court passed on an application of the petitioners under Order 21, Rule 32, respondents had filed revision petition in time, before the District Judge, which was entrusted to A.D.J. For ,disposal and at that time, it was competent forum to adjudicate the revision against the order of the subordinate Court, subject to pecuniary jurisdiction. However due to subsequent change in law, forum of revision was changed from District Court to High Court and thus in the light of above, learned counsel for the respondents made statement before the Court to withdraw the revision petition: The statement of the learned counsel for the petitioner, reproduced above, may not be very appropriately worded but the purpose behind the withdrawal was to file revision petition before this Court. From the subsequent conduct of the respondent, it is also clear that the withdrawal was with an object to approach the proper forum, because during the pendency before the A.D.J., in view of change in law, revision could only be filed and adjudged by this Court. The Revision Petition No. 1751 of 1994, was duly entertained by this Court, however, when the law again changed, matter has been entrusted to the learned District Judge, for disposal. Resultantly, I am not convinced that the withdrawal of the revision petition by the respondent, from District Judge, was with an object to abandon and give up his claim and to accept the order of Executing Court passed under Order 21, Rule 32, C.P.C.
5. As regards the question that the revision petition is barred by limitation, suffice it to say that respondents had files revision petition before the District Judge, which was then the competent forum; the matter remained pending for a considerable time, when on account of change of law, such petition could only be filed and adjudicate by this Court, resultantly, respondents withdrew the petition and filed the same before this Court, within 26 days. This is the reasonable time, which respondents could have availed from filing the matter before this Court, therefore, it is unfounded to argue that the entire time during which, the matter remained pending before the learned District Judge, should be counted towards the limitation of the respondents, invoking the revisional jurisdiction of this Court. It may be pertinent to state here that' as mentioned above, it is this refiled Revision Petition No. 1751 or 1994, which was sent for the adjudication to the District Judge and had been disposed of. Petitioners did not raise any objection. About the limitation before the District Judge and even otherwise, as has been held that the said revision petition was not out of limitation, therefore, the objection of the petitioners about the limitation of the revision petition has no force and is hereby repelled.
6. Now coming up to the merits of the case, it may be held that according to Article 23 of the Constitution, there can be no clog/condition imposed under any agreement/ instrument between the parties regarding sale of the property, which is against the fundamental right of an owner to sell and dispose of the property, consequently, the suit filed by the petitioners, on the basis of condition in the mortgage was clearly violative of fundamental right and was condition which was void ab initio and was unforceable under the law, therefore, notwithstanding any condition in the mortgage deed or any so-called undertaking given by Allah Ditta, for not alienating the suit property, when the suit of the petitioners was incompetent, lacking cause of action therefore, the plaint has been rightly rejected by the learned trial Court, resultantly, as no decree had been passed in favour of the petitioners, such decree could not be enforced under the provisions of Order 21, Rule 32, C.P.C. The observation of the Appellate Court in the order, dated 19-1-1988, reproduced above, absolutely is an illegal and without lawful authority and the petitioners on the basis of above, had no legal right to enforce any right to invoke the provisions of Order 21, Rule 32 especially, when their plaint in both the suits, had been rejected by the learned trial Court.
Therefore, the learned revisional Court, has rightly interfered in the matter and had passed the impugned order.
7. As regards the question that the petitioners during the pendency of the petition had entered into an agreement to sell with the respondent Allah Ditta and had obtained a decree and also procured a sale-deed, suffice it to say that such transaction had been made during the pendency of the litigation of the case, between the parties, and thus decree for specific performance and sale made in favour of the petitioners, in pursuance thereof, is hit by the principle of lis pendens.
Therefore, on account of above, it cannot be held that the petitioners have become lawful owner of the suit property.