' This revision petition is directed against the judgments/orders and decrees dated 29-5-1997 and 16-9-2000, passed by the learned Civil Judge and the learned Additional District Judge, Lahore, respectively, deciding lis against the petitioner.
2. A short factual background of the case is that the petitioners on16-4-1995 filed a suit for possession through pre-emption against the sale-dated 13-7-1994 effected through a registered sale-deed, in favour of the respondents. Respondents had purchased 15 Kanals and 8 Marlas of land through the above-referred registered sale-deed, which was incorporated in the Revenue Record through a mutation, dated 15-81994. The petitioners claim to have superior right of pre- emption as having common ways path and means of irrigation with the land sold and asserted in their plaint that sale was completed without any kind of notice under section 31 of the Punjab Pre- emption Act, 1991 and was kept in a guarded secret. He further averred that this sale came.To his knowledge about one and a half months, prior to the institution of the suit, and gaining knowledge, he made a jumping demand in presence of thepersons named in the plaint, by expressing his intention to have the land by exercising his superior pre-emptive right. In this manner, he claimed to have fulfilled the requirements of Talb-e-Muwathibat whereafter he issued a notice dated 6-3- 1995 and fulfilled Talb-e-Ishhad and ultimately filed the suit on 16-4-1995.
3. The respondents being defendants in the suit, before filing the written statement, filed an application under Order 7 rule 11 of the C.P.C. Seeking rejection of plaint on the ground that it was barred by limitation but subsequently withdrew this application on 20-12-1995. The respondents then filed their written statement on 16-1-1996, wherein, they raised an objection that the suit of the petitioners has been filed beyond the period of limitation prescribed by law. Out of controversial pleadings of the parties, the learned trial Judge, on 21-3-1996, framed issues, arising of controversial pleadings of the parties and at the same time the stay application filed by the petitioners was accepted and the case was adjourned to 5-10-1996 for evidence of the petitioners.
4. On the day of evidence respondents again filed an application under Order VII, rule 11, C.P.C.
Praying rejection of the plaint, on the ground that the suit of the petitioners is barred by limitation.
The petitioners, contested this application on multiple grounds but the learned trial Court on 29-5- 1997 accepted respondent's application and rejected the plaint of the petitioner holding it to be barred by limitation. The petitioners then filed an appeal before the learned District Judge, but remained unsuccessful, as their appeal was dismissed on 16-9-2000 by the learned Additional District Judge, Lahore. They have now come up in revision before this Court against these two concurrent judgments/orders and decree passed by the two-Courts below.
5. The learned counsel for the petitioners submits that question of limitation, raised by the respondents was a mixed question of law and facts and could not have been resolved without recording of evidence, according to him, the petitioners, had a right to prove by evidence that provisions of section 31 of the Punjab Pre-emption Act, 1991, were not complied with and thus limitation for filing pre-emption suit by them, would start from the date of their knowledge of the sale. He further submits that the petitioners had specifically pleaded in para No.4 of their plaint that sale was concealed and provisions of section 31 of the Act were not complied but in spite of it, the petitioners were deprived of their right to prove these assertions. The learned counsel for the petitioners while further elaborating his arguments contended that the petitioners are in possession of the land in dispute which is a part of joint Khata and possession did not change hand thus they could not gainknowledge of the sale. It is also contended that the application under Order VII, rule 11, 'C.P.C. Where under the petitioners' plaint has been rejected, was not maintainable, under the provisions of Order XXIII, rule 1(1) read with section 151, C.P.C. Because the respondents had earlier withdrawn a similar application on 20-12-1995, and thus, were precluded from filing the second application. The learned counsel relied on the judgments of the Hon'ble Supreme Court of Pakistan in the cases of Mian Asif Islam v. Mian Muhammad Asif (PLD 2001 SC 499) and Dr. Muhammad Ayub Khan v. Haji Noor Muhammad (2002 SCM R 219) in support of his contentions.
6. The learned counsel appearing on behalf of the respondents besides refuting arguments of the learned counsel for the petitioner, submitted that the suit of the petitioners was patently barred by time, as it was filed after 9 months and 7 days of the sale which was effected through a registered sale-deed which according to him, was a public notice and the petitioners were aware of the sale, from the day one, as before the purchase by the respondents, it was offered to the petitioners. He further submits that period of limitation in case of a registered sale-deed, would start from the date of its registration under section 30(a) of the Punjab Pre-emption Act, 1991 and not under the clause (c) of section 30 because under the law, period of limitation will start from the date of knowledge only where,the sale is not covered by clauses (a) and (b) of section 30 of the Act ibid. Replying to maintainability of application under Order VII, rule 11 of the C.P.C., he argued that the since earlier petition was not decided on merits, second similar application was not barred under the law. He referred to judgments of the Hon'ble Supreme Court of Pakistan in the cases of Maulana Noor-ul-Haq v. Ibrahim Khalil (2000 SCM R 1305) and Mian Asif Islam v. Mian Muhammad Asif (PLD 2001 SC 499).
7. I have anxiously considered the arguments of the learned counsel for the parties and have minutely examined the judgments referred by them. Sale subject of pre-emption was undeniably effected through registered sale-deed, dated 13-7-1994, which was incorporated in the Revenue Record by attestation of mutation on 15-8-1994. Suit by the petitioners was admittedly filed on 16- 4-1995 after a period of 9 months and 7 days. It is also admitted between the parties that for the purposes of limitation for filing the suit in hand, the case was covered by section 30(a) of the Punjab Pre-emption Act, 1991 and the only controversy which remains to be resolved is whether the limitation in the case, like the one in hand, would start from the date of knowledge, as asserted by the pre-emptors or from the date of registration of the sale-deed. Main emphasis of the learned counsel for the petitioners is that if both the provisions i.e. Sections 30 and 31 of the Act of 1991, are read together, limitation would run from the date of knowledge of the sale becauseundisputedly, no public notice by the officer registering sale-deed, was issued in terms of section 31 of the Act.
8. Laws, governing and providing certain limitation for maintaining some lis, have always been treated as mandatory and thus are being given effect in strict sense. It is in this context that Honourable Supreme Court has very graciously mandated, time and again that delay in filing any matter, after the prescribed period of, limitation, has to be judiciously explained, by giving cause for each day's delay. Under the provisions of section 30 of the Punjab Pre-emption Act, sale through a registered sale-deed is covered by clause (a) and limitation for preempting such sales through suits, would be four months from the date of registration of the sale-deed. Meaning thereby that a pre-emptor under this provision of law, has to file his suit within four months of period from the date the sale-deed is registered. In the suit in hand, which was filed after nine months and seven days of registration of sale-deed, is barred by limitation, but plaintiffs (petitioners) have asserted in para 4 of their plaint that the sale was concealed by the respondents and at the same time Sub- Registrar concerned (officer registering the sale-deed) did not issue any kind of public notice in terms of section 31 of the Act and thus claimed, to have the limitation for filing of their suit, counted from the date of their knowledge of sale i.e. 1-1/2 months earlier to institution of their suit and in this manner they claimed that they could file it till 1-7-1995.
9. A similar question fell for determination before the Honourable Supreme Court of Pakistan while hearing a case filed under the North West Frontier Province Pre-emption Act (X) of 1987 and determining effect of sections 31 and 32 of that Act which are similar to the provisions of sections 30 and 31 of the Punjab Pre-emption Act, 1991, it was held that section 32 of Act (X) of 1987, provides no penal clause and in no manner, override or dilute the provisions of the same Act in section 31, which are mandatory by all standards and in spite of the fact that word "shall" has been used therein, are directory in nature and in this manner it was very graciously concluded that a pre- emption suit arising from a registered sale-deed, shall start from the date of its registration.' It was further held that if suit pre-empting a registered sale-deed is filed beyond the period of limitation, plaint has to be rejected straightaway. This view was graciously taken by the Honourable Supreme Court in the case of Maulana Noor-ul-Haq v. Ibrahim Khalil (2000 SCM R 1305).
10. In another case of Mian Asif Islam v. Mian Muhammad Asif (PLD 2001 SC 499) provisions of sections 30 and 31 of the Punjab Preemption Act, 1991, were. Very kindly scrutinized by the apex Court of this country and by dealing with the nature of section 30 of the said Act it was held that those are' mandatory in nature and thus period of limitation for filing a suit pre-empting a sale effected through a registered sale-deed would start running from the date of its registration. It was also very kindly held that limitation fixed by section 30 of the Act cannot be extended, taking a shelter or refuge under the provisions of section 31 of the same Act, as official acts provided in this provisions of law are presumed to have been duly and regularly performed. This erstwhile judgment while dealing with the points, directly involved in the case in hand, in it's para 6, authoritatively mandated that time of four months will run from the date of knowledge of the pre- emption ONLY if the sale is not covered by clauses (a), (b) or (c) of section 30 of the Act and in the cases which are covered by clause (a), (b) or (c), time cannot be made to run from the date of knowledge on giving public notice in terms of section 31 of the said Act. It was specifically determined that sale through a registered sale-deed, has in it, the effect of starting point of limitation from the date of it's registration, irrespective of the provisions of section 31 of the Act ibid. In the same judgment nature of provisions of section 31 of the said Act was also examined and it was very clearly held that in spite of use of word "shall" in this section has the effect that these provisions as directory because there is no consequence provided, in case of failure to issue notice as envisaged by this provision of law. Effect of non-filing of the suit within the period prescribed by section 30 of the Act ibid, would entail consequence of dismissal of the suit even if such plea is not raised by any of the parties, taking cognizance of the matter under section 3 of the Limitation Act by the Court, itself. Learned counsel for the petitioners has also relied upon observations by the Honourable Supreme Court at pages 505 and 507 of this judgment to contend that both the provisions i.e. Sections 30 and 31 of the Act have to be read together and the period of limitation should be computed from the date of knowledge. I cannot see, an eye to eye with this argument because in the concluding part of this judgment (para 6) there is no room left for accommodating this argument. The only saving clause, has very graciously been interpreted to give starting point of limitation from the date of knowledge, is in the cases which are not covered by clauses (a), (b) or
(c) of section 30 and fall within its clause (d). Learned counsel for the petitioners has tried to draw a distinction between his case and in the case of Muhammad Ramzan v. Lal Khan (1995 SCM R 1510) as, according to him, in this case pre-emptor had not asserted that the sale was concealed and he did not take a specific objection that provisions of section 31 of the Punjab Pre-emption Act, 1991 were not complied by the Registering Officer. This distinction has no probative value because ratio of the judgment preponded by the Honourable Supreme Court of Pakistan, in this case, as well, is that starting point of limitation, in case of a sale through a registered deed, would be from its registration.
11. I respectfully following view of the Honourable Supreme Court of Pakistan given in the case of Mian Asif Islam (supra) and borrowing reasoning, therefrom, hold that limitation provided by section 30 of the Act, which is mandatory in nature and can by no stretch of imagination be extended, even if notice envisaged by section 31 of the Punjab Preemption Act, 1991 is not given.
Latter provision though created an obligation for the Registration Officer in case of registered sale- deed and for an Attesting Officer, in case it is effected through a mutation, to give a public notice, in the manner prescribed by it, but in case of failure of the Registration or Attesting Officer, to discharge their obligations, no consequence has been provided in the Act hence it remains directory. It is also not provided by the Act that if such notice is not given the limitation would start from the date of knowledge of the pre-emption of the sale. If effect of those provisions is given, in the manner claimed by the learned counsel for the petitioners, it would amount to nullifying the mandatory provisions of section 30 of the Act ibid and it would amount to giving an unbridled discretion to the pre-emptor to file a suit even after five years of time with an assertion that the Registration or Attesting Officer did not issue a public notice in terms of section 31 of the Act. To my mind, Legislature never intended to create such a situation. In the case in hand, sale was effected through a registered sale-deed which under the provisions of Registration Act has the effect of a public notice and section 31 of the Punjab Pre-emption Act, 1991 only creates an additional means of knowledge for the pre-emptors, failure to give such notice, does not enlarge period of limitation and consequently, I hold that suit of the petitioners filed after nine months and seven days from the date of registration of sale-deed, falls within clause (a) of section 30 of the Punjab Pre-emption Act, 1991 and for this limitation being four months, was patently barred by time.
12. In view of provisions of section 3 of the Limitation Act it was the duty of the Court to advert to the point of limitation even in absence of any objection by any of the parties and it was so held in the light of judgment as discussed above (in the case Mian Asif Islam supra) and thus it becomes immaterial that the respondents after filing an application under Order VII, rule 11, C.P.C. Seeking rejection of petitioners' plaint on the ground that the same was barred by limitation, withdrew the same and moved a similar application for the second time, in the contravention of provisions of Order XXIII, rule 1(3) of the Civil Procedure Code. Had the respondents not withdrawn their earlier application on 20-12-1995, the matter of limitation would have been sorted out on that application.
Since no findings on earlier application of the respondents was given and the Court was under obligation to see whether the plaint was filed by the petitioners within the limitation provided, their plaint was rightly rejected through the order impugned and no exception theretocan be taken.
Since section 30 of the Punjab Pre-emption Act, 1991, has been held to be mandatory in nature by the Honourable Supreme Court of Pakistan and I have also concluded that there was no escape from these mandatory provisions, section 31 of the Act does not have an effect of extending period of limitation, thus the question touching it does not remain a mixed question of law and facts and being a pure question of law, could have very effectively, been decided without adjudicating averments of the petitioners regarding concealment of sale or non-issuance of notice by the Registering Officer in terms of section 31 of the Act ibid, without recording of evidence, as it has been done by the learned trial Judge.
13. Both the Courts below have rightly concluded the issue involved, by holding that petitioners' suit was barred by limitation and thus their plaint was rightly rejected. No illegality or irregularity has been found to have been committed by them, consequently this revision petition has no substance in it and is accordingly dismissed, with costs.