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Civil Appeal No. 6‑P of 1972, decided on 16th October 1973.

(On appeal from the judgment and order of the Peshawar High Court, dated the 7th May 1970, in R. S. A. No. 69 of 1970).

----S. 42 and Civil Procedure Code (V of 1908), O. VI, r. 17‑Amend merit of pleadings‑Suit for declaration of right to, and for possession of, mortgaged land dismissed by Courts below as barred by limitation‑Suit however found to have been filed within 12 years of last date of redemption‑Findings of Courts below, held, not correct‑Twelve years having been already spent on litigation and fresh suit being barred by limitation, plaintiffs allowed to suitably amend plaint and pay deficit court‑fee to avoid prolonged litigation and to further course of justice in special circumstances of case.

Charan Das v. Amir Khan A I R 1921 P C 50 ; Muhammad Zahoor Ali Khan v. Mst. Thakoorance Rutta Koer (1867) 11 M I A 467 (PC) and Karamat Ali v. Muhammad Yunus P L D 1963 S C 191 ref.

Sh. Muhammad Shafi, Senior Advocate Supreme Court instructed by M. Qasim Imam, Advocate‑on‑Record for Appellants.

Peer Bakhsh Khan, Advocate Supreme Court instructed by Muhammad Tariq Khan, Advocate‑on‑Record for Respondents.

Date of hearing : 16th October 1973.

This appeal by special leave is from the judg ment and order of the Peshawar High Court dismissing the second appeal of the petitioners. Leave was granted to consider whether the suit instituted on the 6th of December 1961, for declaration of plaintiffs' right to and for possession in respect of the mortgaged lands redeemed between the years 1940 and 1948 were barred by limitation.

It appears that one Zabta Khan, son of Dost Muhammad Khan, was the last male owner of the property in suit some of which had been mortga ged. He died in the year 1933, i. e., before the promulgation of the Muslim Personal Law (Shariat Application) Act, 1935, leaving behind a widow, Mst. Pari, a son, Wali Muhammad, and a daughter, Mst. Zubeda Begum. According to the customary law then applicable, the properties, which were situated in three different villages, namely, Ghari Daulat Zai, Kot Daulat Zai and Husain were mutated in the sole name of Wali Muhammad to the exclusion of the aforesaid two females. Among the properties are included :mortgaged lands of a total area of 932 kanals and 12 marlas. It is an admitted fact that these lands had been mortgaged at the time of the death of Zabta Khan, but they were redeemed by Wali Muhammad alone between the years 1940 and 1948.

The defendants‑respondents filed a joint written statement on the 4th of January 1962, denying the rights claimed by tire plaintiffs. The defendants pleaded limitation and non‑applicability of the Shariat Law at the time of inheritance of Zabta Khan in the year 1933.

The trial Court dismissed the suit even with regard to the mortgaged properties on the ground that the suit for possession without asking for redemption of the mortgaged property was not maintainable.

The Additional District Judge dismissed the appeal of the plaintiffs. The High Court, too, dismissed the second appeal of the plaintiffs and agreed with the two Courts below on the question of limitation.

Both the trial Court and the first appellate Court were of the view that the plaintiffs should have sued for possession through redemption in respect of the mortgaged properties.

The Courts below have concurrently held that the possession of respon dent Wali Muhammad before the redemption of mortgage was not the possession of a co‑owner and his possession since 1933 was hostile to the two female heirs claiming under the Shariat Act. Therefore, so far as the properties other than the mortgaged properties are concerned, the suit having been brought more than 12 years from the death of Zabta Khan it was barred.

As regards the mortgaged properties, however, the Courts were unani mous that they had been redeemed by Wali Muhammad, and the plaintiffs should have sued for possession through redemption and not for possession alone.

We do not, however agree with the Courts below that the suit in respect of the mortgaged properties was barred for it was filed within 12 years of 1948 the last date of redemption. The appeal must, therefore, be allowed and the impugned order set aside. Already about 12 years have been spent in the litigation between the parties, and if they are relegated to a fresh suit much of the ground will have to be covered once again and another considerable period will elapse before a final decision is reached. The question for consideration, therefore, is what is the course that should be adopted in the interest of the appellants and for doing complete justice in the matter,

Consistent with the views of the Privy Council in the cases of Charan Das v. Amlr Khan (AIR 1921 PC50) and Mohammad Zahoor Ali Khan v. Asst. Thakoorance Rutta Koer ((1867) 11 M I A 467 (P C)) and our own decision in the case of Karamat Ali v. Mohammad Yunus (PLD1963SC191) we feel that the plaintiffs should be permitted to suitably amend the plaint, and pay any deficit court‑fees consequent upon such amendment.

A fresh suit will be barred by limitation, and this is another reason for adopting the proposed course for it is liable to further the course of justice.

In the aforesaid case of Charan Das v. Amir Khan the Privy Council has observed as follows:‑

"That there was full power to make the amendment cannot be disputed, and though such a power should not as a rule be exercised where its effect is to take away from a defendant a legal right which has accrued to him by lapse of time, yet there are cases [see, for example, Mohammad Zahoor Alt Khan v. Mst. Thokoorani Rutta Koer] where such considerations are outweighed by the special circumstances of the case, and their Lordships are not prepared to differ from the Judicial Commissioner in thinking that the present case is presenting one."

In the case of Mohammad Zahoor Ali Khan v. Mst. Thakooranee Butta Koer the observations of the Privy Council are as follows:‑

"For the reasons already give:, their Lordships cannot agree with this conclusion. They are of opinion, that the finding of the Courts below, on the only issue which they have really tried, is wrong.

They have, however, felt some doubt as to the order which it will be their duty to recommend Her Majesty to make on this appeal. They have already intimated that the appeal must be dismissed against all the respondents except Rutta Koer; and they have felt some doubt whether, inasmuch as the suit was wholly misconceived, the proper course was not to dismiss this appeal altogether, without prejudice to the right of the appellant to bring a new suit against Rutta Koer upon this Bond, treating it as a mere money Bond. Considering, however, that such a suit would probably be met by a plea of the Act of Limitations; that in the circumstances of this case such a defence would be inequitable; and that, the respondent not having appeared, their Lordship are not in a condition to put her on terms as to her defence to a fresh suit; they have come to the conclusion that the fairer course is to do what the Judge of the Court of First Instance might, under the Code of Procedure, have done at an earlier stage of the course, namely, allow the appellant to amend his plaint so as to make it a plaint against Rutta Koer alone for the recovery of money due on a Bond. Her liability on the Bond may thus be tried on the issues already settled. Upon those issues, and the evidence taken on them, their Lordships will intimate no opinion. The nature of the transactions. and the status of the Obligor, make it peculiarly desirable that the appellate Court should have the benefit of the judgment of the Courts below on those issues."

Both these cases have been relied on by this Court in the case of Karamat Ali v. Mohammad Yunus (P L D 1963 S C 191).

We, accordingly, allow this appeal with costs and set aside the impugned order of the High Court and remand the case to the trial Court. The trial Court shall permit the plaintiffs to amend the plaint suitably to enable them to confine their suit to the mortgaged properties alone, and allow the defendants to put in fresh written statement and then proceed to decide the suit according to law. As we have already held that so far as the mortgaged properties are concerned the suit has not been barred, the question o limitation will not be an issue in the suit.

Appeal allowed. Case remanded.

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