' MUHAMMAD DAUD KHAN, J.---Through this Constitutional Petition, under Article 199 of the Constitution of Islamic Republic of Pakistan 1973, the petitioners have challenged the judgment and order of learned Additional District Judge/ Izafi Zilla Qazi, 1st, Swat dated 3-4-2012 and judgment and order of learned Civil Judge/Illaqa Qazi-IV, Swat dated 18-1-2012, through which the application filed by the petitioners under order VII Rule-11(d), C.P.C. Was dismissed in the suit filed by the respondent No,1 for possession through pre-emption of the property purchased by the petitioners through a registered sale-deed bearing No, 134 dated 7-5-2011.
2. The brief but necessary facts forming the background of instant controversy are that the petitioners have purchased the suit property through a sale deed bearing No, 134 dated 7-5-2011 against that very registered deed, the respondent No, 1 instituted the instant suit for possession through pre-emption on 12-10-2011. The present petitioners submitted an application under Order VII, Rule 11(d), C.P.C. For rejection of the plaint on the ground that the suit was barred by limitation and had been filed beyond the prescribed period of section 31 of Khyber Pukhtunkhwa Pre-emption Act, 1987 (herein and after called Act). After replication and arguments of the parties the learned Civil Judge/Illaqa Qazi-IV, Swat dismissed the application dated 5-1-2012 by holding that in the impugned registered sale deed no notice was served upon the pre-emptor, which is the mandatory requirement of section 32 of Khyber Pukhtunkhwa Pre-emption Act, 1987. The said order was upheld by the learned Additional District Judge/Izafi Zila Qazi Ist, Swat vide his judgment and order dated 3-4-2012. Hence, the instant writ petition.
3. The learned counsel for the petitioners contended that the suit in hand is instituted after the prescribed period of limitation and this suit being a badly time barred liable to be dismissed and the learned Courts below by not rejecting the suit of respondent No,1 have wrongly exercised their jurisdiction vested in them under the law and thus committed a gross illegality and irregularity.
4. The learned counsel for the respondents contended that both the Courts below have not committed any illegality, as the provisions of Order VII, Rule 11(d), C.P.C. Can be invoked only where the suit is "barred by any law" and not barred by the limitation, as the limitation is the mixed question of law and facts and can be resolved after recording of pro and contra evidence.
Secondly, when the said sale deed was registered, but the Registrar concerned did not give public notice in respect of such registration as envisaged by Section 32 of the Khyber Pukhtunkhwa Pre- emption Act, 1987. Therefore, limitation is to be reckoned from the date of knowledge by the pre- emptor and not from the date of registration of sale deed.
5. Arguments heard and record perused through the valuable assistance of the learned counsel for the parties.
6. Before dilating upon the points of determination, it is necessary to reproduce sections 31 and 32 of the Act ibid. Section 31 is provided for limitation to institute a suit of pre-emption, which reads as under:-- Section 31: Limitation:---The period of limitation for a suit to enforce a right of pre-emption under this Act shall be one hundred and twenty days from the date---
(a) of the registration of the sale deed; or
(b) of the attestation of the mutation, if the sale is made otherwise than through the registered sale deed; or
(c) on which the vendee takes physical possession of the property if the sale is made otherwise than through the registered sale-deed or the mutation; or
(d) of knowledge by the pre-emptor, if the sale is not covered under paragraph (a) or paragraph
(b) or paragraph (c)"
' Whereas section 32 is worded as under: Section: 32: "Notice.---(I) The Registrar registering the sale deed or the Revenue Officer attesting the mutation of a sale shall, within two weeks of the registration or attestation, as the case may be, give public notice in respect of such registration or attestation.
' The first point for determination whether suit can be rejected under Order VII, Rule 11(d), C.P.C., if the suit is time barred? The bar of limitation is traceable to the Limitation Act, therefore, it goes without saying that the expression "barred by any law" includes limitation provided in the section 31 of the Act. The next point for determination relates to the date from which the period of limitation for a suit to enforce the right of pre-emption arising from a registered sale deed is to be computed? The explicit and mandatory provisions of section 31 of the Pre-emption Act leave no room for doubt that in case of a sale effected through a registered sale deed the period of one hundred and twenty days shall be computed from the date of registration of the sale deed. The contentions of learned counsel for the respondents are not correct. The conception of both the learned Courts below that, if the Registrar failed to issue public notice as envisaged by the mandatory provisions of section 32 of the Pre-emption Act, the period of limitation is to be computed from the date of knowledge by the pre-emptor is misconceived and not tenable. Such like provision is neither contained in section 31 of the Act nor can be read into it in view of settled law that Court cannot supply `casus omisus'. The provisions with regard to issuance of public notice by the Registrar provided under section 32 of the Act had no nexus with the period of limitation prescribed by section 31 of the Act for filing of a pre-emption suit in respect of sale transaction effected through a registered sale deed. If the provision with regard to issuance of public notice by the Registrar contained in Section 32 of the Act is to be considered as mandatory, it provides an alternate time frame and an extra source of knowledge for making Talbs, given in the Section 13 of the Pre-emption Act.
' It was held in the case "Maulana Nur-ul-Haq v. Ibrahim Khalil" "2000 SCM R 1305 (Supreme Court of Pakistan) by honourable Lordships Mr. Justice Abdur Rehman Khan and Mr. Justice Qazi Muhammad Farooq (as the then they were):-- "There is yet another aspect of the matter to which it is necessary to refer to section 32 of the Act appears to be mandatory, in view of the expression 'shall' used therein but in fact is directory for want of a penal clause. No doubt there exists no faultless acid test or a universal rule for determining whether a provision of law is mandatory or directory and such determination by and large depends upon the intention of Legislature and the language in which the provision is couched but it is by now firmly settled that where the consequence of failure to comply with the provision is not mentioned the provision is directory and where the consequence is expressly mentioned the provision is mandatory. It was held in Niaz Muhammad Khan v. Mian Fazal Raqeeb (PLD 1974 SC 134) that as a general rule a statute is understood to be directory when it contains matters merely of direction, but it is mandatory when those directions are followed by an express provision that in default of following them the facts shall be null and void. In Major Shujat Ali v. Mst.
Surrya Begum (PLD 1978 SC (AJ&K) it was held that in the absence of a penalty for failure to follow the prescribed procedure the provisions are to be taken to be directory and not mandatory. The provisions of section 32 of the Act being directory cannot in any manner override or dilute the provisions of section 31 of the Act which are mandatory by all standards."
7. In view of the above discussion, the findings of both the Courts below i,e, respondents Nos. 3 and 4 are wrong, illegal and misconceived and not tenable, suit of respondent No,1 is badly time barred and liable to be rejected under Order VII, Rule 11(d), C.P.C., Hence the instant writ petition is allowed and the judgments and orders of both the courts below are set aside and the suit of respondent No,1 is dismissed, being barred by law of limitation. No order as to costs.