' FAZAL-E-MIRAN CHAUHAN, J.-Brief facts of the case as deciphered from the plaint are that; the petitioner filed a suit for possession through pre-emption on 22-4-2003 against respondent No,3 Ch. Muhammad Masood Jahangir in the Court of learned Civil Judge 1st Class, Sargodha stating therein that Mutation No,718, dated 25-1-2003 was sanctioned on the basis of registered exchange deed, whereas, in fact, the transaction was sale-deed, which was fictitiously shown as an exchange, and on the basis of which, the petitioner is entitled for possession of the land, having the first right of pre-emption. On 23-4-2003, an order was passed by the learned Duty Judge directing that the suit be numbered and registered A/D as well as summons be issued to respondent No,3 with a further direction that it is a suit of pre-emption, therefore, l/3rd of the total sale price be deposited within the statutory period. Thereafter, respondent No,3 filed written statement along with application under Order VII, rule 11, C.P.C. Alleging therein tha4 Zar-e-Soem was not deposited within 30 days of the order bf the Court. The application was filed by the petitioner on 20-5-2003 seeking permission to deposit Zar-e-Soem, which was granted and the challan was passed for deposit of Zar-e-Soem, by the Court on 21-5-2003 and Zar-e-Soem was deposited on 22-5-2006.
The learned Civil Judge dismissed the application under Order VII, rule ' 11, C.P.C. Filed by respondent No,3 vide consolidated order dated 9-2-2005.
' Being aggrieved of the order passed by learned Civil Judge, respondent No,3 filed a revision petition before the learned District Judge, Sargodha, which was entrusted to the Court of learned Additional District Judge, Sargodha who accepted the same, vide order dated 5-5-2005 on erroneous presumptions.
2. Malik Muhammad Akram Khan Awan, Advocate for the petitioner states that; the impugned order passed by the learned lower Appellate Court is based on flimsy grounds, which has been passed in a slipshod manner. The learned Court committed error in calculating 30 days by including 23rd of April, 2003 as well, which could not be included and committed legal mistake, as no order for deposit of Zar-e-Soem was passed on 22-4-2003' under section 24 of the Punjab Pre- emption Act, it requires the plaintiffs to deposit Zare-e- Soem in pre-emption suit, when Court requires the plaintiff to deposit l/3rd of the sale price in the Court within such period, as the Court may fix and the penalty clause can only ,come into play, as provided under section 24(2) ibid, if the plaintiff fails to make deposit under subsection (1) within the period fixed by the Court. Further states that; on 23-4-2003, the Court fixed the statutory period, hence, the petitioner was entitled to deposit the same, when the Court has required the petitioner to deposit the same within the statutory period vide its order dated 23-4-2003, but the learned lower Appellate Court misinterpreted the law on the subject-matter and passed the impugned order dated 5-5-2005, which is flimsy, perfunctory and is liable to be set aside. Learned counsel has placed reliance on the following case-law:-
(i) Mst. Said Bibi v. Additional District Judge Bahawalpur and 5 others (2005 CLC 375 Lahore)
(ii) Muhammad Ilyas and 4 others v; Munshi Khan (2003 CLC 1815 Lahore)
(iii) Raja Hassan Ali Khan v. Additional District Judge, Islamabad and 2 others (2003 CLC 1819 Lahore)
(iv) Jamshaid Ali and 2 others v. Ghulam Hassan (1995 CLC 957 Lahore)
(v) Ghulam Hassan v. Jamshaid Ali and others (2001 SCMR 1001)
(vi) Mian Muhammad Lutfi v. Mian Muhammad Talha Adil (NLR 2000 Civil 422)
(vii) Ghulam Mustafa Khan v. Asia Hussain and others (2003 CLC 1661 Lahore)
3. On the other hand, respondent No,3 has opposed the writ petition and fully supported the impugned order, passed by the learned lower Appellate Court, He has also placed reliance on the subject-matter.
(i) Muhammad Yousaf and 3 others v. Zafarullah and another (1992 SCMR 117),
(ii) Mst. Wafa Jan v. Mahram Zad (1995 CLC 2002 Lahore),
(iii) Ahmad Bakhsh v. Nasir Khan and others (2002 CLC 119 Lahore),
(iv) Muhammad Jahangir v. Muhammad Abbas and 2 others (2004 CLC 538 Lahore),
(v) Muhammad Sharif v,. Qutba and others (2006 YLR 1939 Lahore).
4. I have heard learned counsel for the parties, perused the record as well as gone through the case-law, cited by learned counsel for the parties.
5. The question raised in the writ petition are:-
(a) whether the trial Court was required to pass order under section 24 of the Punjab Preemption Act, 1991 for deposit of Zar-e-Soem l/3rd of the sale price on the very first date, when the case was placed before the Court, after filing/institution and not on any subsequent date;
(b) whether the Court can direct the plaintiff to make the deposit within such time as may be fixed by the Court but subject to the proviso imposing limitation to make the deposit within 30 days of the filing of the suit.
6. Under section 24 of the Punjab Pre-emption Act, 1991, it was mandatory for the Court to direct the plaintiff to make deposit in the Court l/3rd of the sale price of the property in cash within such period, the Court may fix but the proviso (1) of the said section certainly imposed limitation on A the Court not to extend the time of deposit beyond 30 days of the filing of the suit. Meaning thereby that the Court may, on the first date of hearing fix any date for deposit of l/3rd of the sale price in cash in Court but such period fixed by the Court for deposit shall not be extended beyond 30 days.
No cavil with this proposition of law was raised by the learned counsel for the parties. However, it is argued by learned counsel for the petitioner that, the learned trial Court while dismissing the application for dismissal of the suit had rightly observed that the deposit made by the petitioner was within 30 days of the filing of the suit, as required by the proviso (2) to section 24 of the Punjab Pre-emption Act, 1991. Further argued that though it was the duty of the Court to fix a certain date for the deposit of l/3rd amount, however, when no such date fixed, such deposit ' cannot be made beyond 30 days of the filing of the suit and the deposit made by t the petitioner on 23-4-2003 was within 30 days of the filing of the suit.
7. Conversely, contention of the learned counsel for the respondents was that; the suit was instituted on 22-4-2003 and the same was marked to the trial Court, where it was ordered to be registered and the same was presented on 23-4-2003, when the learned trial Court directed the plaintiff to make deposit of l/3rd of the sale price within 30 days, but if 30 days are calculated from 22-4-2003 i.e, the date of the filing of the suit, the deposit made by the plaintiff was one day beyond the limitation.
8. Learned counsel for the respondents had tried to create some distinction between the word "filing" and "institution", by arguing that filing of the suit commence from the date, when the suit is put in the box of Senior Civil Judge or the plaint is presented to the Senior Civil Judge and the stamp is imposed and the period of 30 days shall commence from the filing of the suit.
I am afraid learned counsel for the respondents is trying to mix two words i.e, "filing" and "institution". The word used in section 36 and Order IV, rule 1, C.P.C. And by the Legislature while enacting the Pre-emption Law by using the word "filing" does not connote some other meaning.
The word "filing" and "institution" are interchangeable and analogous term, which have been used by the Legislature in the different statutes but to signify the same meaning, therefore, word "filing" used in proviso to section 24 of the Punjab Pre-emption Act, 1991 means institution of the suit, as has been mentioned in section 36 and Order IV, rule 1, C.P.C.
9. The next question whether 30 days time shall be reckoned from the date of institution/filing of the suit? Section 24(1) of the Punjab Pre-emption Act, 1991, it is required of the Court to pass an order directing the plaintiff to make deposit within such time, as. May be fixed by the Court.
However, a rider under proviso to this section has been placed upon the authority of the Court that such time was not exceeded 30 days (of the filing of the suit). The word "of" appearing in the proviso is of no immense significance and it has been held in Fazal Elahi v. Noor Ahmed and 2 others (PLD 2006 Lahore 318) that words "of, from dr after" are interchangeable and have the same meaning, therefore, when the word "of" is construed for its proper context as used in the proviso, it shall mean that 30 days -time shall be reckoned after the date of the institution of the suit.
According to this judgment, first day in the series of days providing a particular period for doing same act or performing a duty, has to be excluded keeping in view the provision of section 8 of the West Pakistan General Clauses Act, 1956, which reads as follow:- ' "It shall be sufficient, for the purpose of excluding the first in a series of days or any other period of time to use the word "from" and for the purpose of including the last in a series of days or any other period of time to use the word "to"."
10. Almost a similar proposition came under consideration of this Court in the case reported as Imran Ahmed and another v. The District Judge, Dera Ghazi Khan and 2 others (2003 CLC 1597) and Ghulam Mustafa Khan v. Ashiq Hussain and others (2003 CLC 1661). In both the above cited cases, it has been held that the day when the order was passed i.e, 23-4-2003 has also to be excluded under section 8 of the West Pakistan General Clauses Act, 1956. Thus, on account of the reasoning given in paragraph No,4 and on the basis Of these two judgments, I am constrained to hold that the day, on which the order has been passed by the Court, directing the pre- emptor to make the deposit, should be excluded and thus by exclusion thereof, the deposit made by the petitioner in this case shall be within 30 days time and resultantly, no delinquency and default can be attributed to the petitioner, therefore, the' dismissal of the petitioner's suit by the lower appellate Court for non-compliance of the deposit of Zar-e-Soem is illegal and without jurisdiction, and cannot be sustained in the eye of law .
11. For the foregoing reasons, the judgment and decree dated 5-5-2005 passed , by the learned lower Appellate Court is set aside and the order dated 9-2-2005, passed by the learned trial Court is restored. Writ petition is accepted.