ASIF SAEED KHAN KHOSA, J.---A parcel of land situated in Mauza Shorkot, Tehsil and District Dera Ismail Khan was sold to respondents Nos.1 to 3 in Civil Petition No,642 of 2012 through a registered sale deed dated 4-4-2002 followed by a mutation entered and attested in favour of the vendees on 4-10-2002 whereas another parcel of land located in the same Mauza was sold to the respondent in Civil Petition No, 643 of 2012 through a registered sale deed, on 16-4-2002 followed by a mutation entered and attested in favour of the vendee on 4-10-2002. The petitioner sought to pre-empt the said sales through separate suits for, possession but on 14-9-2004 the plaints filed by the petitioner were rejected by the learned Senior Civil Judge, Dera Ismail Khan by invoking Order VII, Rule 11, C.P.C. On account of the same having been filed beyond the statutory 'period of limitation of one hundred and twenty days. The petitioner filed appeals in that regard which were allowed by the learned Additional District Judge-V, Dera Ismail Khan on 1-11-2005 and the suits filed by the petitioner were remanded to the learned trial court for their adjudication on merits. The respondents preferred revision petitions before the Peshawar High Court, Dera Ismail Khan Bench against the appellate judgments and their revision petitions were allowed by a learned Judge-in- Chamber of the said Court vide judgments dated 30-1-2012 and the judgments and decrees of the learned trial court were restored.. Hence, the present petitions before this Court.
2. We have heard the learned counsel for the petitioner appearing in both these petitions at some length and have perused the record with his assistance. The learned counsel for the petitioner has conceded before .Us that both the suits for possession through pre-emption filed by the petitioner had been filed beyond the period of one hundred and twenty days of registration of the two sale deeds mentioned above, as contemplated by the provisions of section 31(a) of the N.W.F.P.
Preemption Act, 1987, but he has maintained that the Registrar registering the said sale deeds had failed to perform his duty under section 32(1) of the N.-W.F.P. Pre-emption Act, 1987 and, thus, the period of limitation for filing of the petitioner's suits would be counted from the date of his knowledge about the sales and not from the date of registration of the sale deeds as contemplated by the provisions of section 3'1(a) of the said Act. He has placed reliance in this respect upon the judgment rendered by this Court in the case of Mian Asif Islam v. Mian Muhammad Asif and others (PLD 2001 SC 499). With this submission it has been argued by the learned counsel for the petitioner that the suits filed by the petitioner were not barred by time and, therefore, .The plaints of the petitioner were not liable to be rejected on that score.
3. The contention of the learned counsel for the petitioner noted above revolves around the provisions of sections 31 and 32 of the N.-W.F.P. Pre-emption Act, 1987 and for facility of reference the same are reproduced below:
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).
32. Notice.---(1) 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.
(2) The notice under subsection (1) shall be deemed sufficiently given if it be stuck up on the main entrance of a mosque and on any other public place of the village, city' or place where the property is situated: ' Provided that if the property is situated in a city, the notice shall also be given through a newspaper having large circulation in such city.
(3) The charges for the notice under subsection (2) shall be recovered from the vendee by the Registrar or the Revenue Officer, as the case may be, at the time of registration or attestation of mutation.
4. We have attended to the above mentioned contention of the learned counsel for the petitioner with reference to the relevant provisions of the N.-W.F.P. Pre-emption Act, 1987 as well as the precedent cases on the subject. Section 31 of the said Act is a comprehensive provision providing for a period of limitation for filing a suit for possession through pre-emption under that Act and the same caters for different situations. It has been provided in that section in most unambiguous terms that in case of an alienation of a property through a registered sale deed the period of limitation is one hundred and twenty days commencing from the date of registration of the sale deed, in case of an alienation through attestation of a mutation the period of limitation of one hundred and twenty days is to commence from the date of such attestation, in case of an alienation otherwise through a registered sale deed or a mutation the period of limitation of one hundred and twenty days is to be counted from the date on which the vendee takes physical possession of the property and if the sale is not through a registered sale deed, a mutation or taking of physical possession by the vendee then the period of limitation of one hundred and twenty days is to start from the date of knowledge of the pre-emptor about such sale. Under section 32(1) of the said Act the Registrar registering a sale deed or the Revenue Officer attesting a mutation of sale is to, within two weeks of registration or attestation, as the case may be, give public notice in respect of such registration or attestation. The learned counsel for the petitioner has maintained that in a case where the Registrar or the Revenue Officer, as the case may be, fails to give public notice of registration of a sale deed or attestation of a mutation of sale there the period of limitation for filing a suit for possession through pre-emption would start from the date of knowledge of such sale by the pre-emptor. He has maintained that for determining the commencing point of the period of limitation in such a case the provisions of section 31 of the Act are to be read with those of section 32 of the Act and any default on the part of the Registrar or the Revenue Officer in performing the duty mentioned in section 32(1) would switch the case from the folds of section 31(a) or (b) to the purview of section 31(d) of the Act. We have, however, found this stance of the learned counsel for the petitioner to be unacceptable as such a contention has already been commented upon and rejected by this Court in the cases of Muhammad Ramzan v.
Lal Khan (1995 SCM R 1510) and Maulana Nur-ul-Haq v. Ibrahim Khalil (2000 SCM R 1305). In the case of Muhammad Ramzan (supra) this Court had considered the pari materia provisions of the Punjab Pre-emption Act, 1991 and had held as under: "6 Section 31(1) of the Act, provides that it is incumbent upon the officer registering the sale deed or attesting the mutation of sale to give public notice in respect of such registration or attestation within two weeks as the case may be. Subsection (2) thereof envisages that the notice given under subsection (1) shall be deemed to have been sufficiently given if it is displayed on the main entrance of a mosque and on any other public place of village or the place where the property is situated. Presumption of regularity is attached to all official acts. 14 is not the case of the appellant that no notice was ever served by the registering authority nor evidence contrary to that has been brought on record. It would, therefore, be presumed that the appellant had due knowledge of the attestation of the mutation of sale of the disputed land within two weeks from the issuance of notice under section 31 of the Act."
' The case of Maulana Nur-ul-Haq (supra) was squarely based upon the provisions of sections 31 and 32 of the N.-W.F.P. Pre-emption Act, 1987 and the argument advanced by the learned counsel for the petitioner in that case was identical to the contention of the learned counsel for the petitioner put forward in the present case. It had been held by this Court in the said case as follows: "7 The next point for determination relates to the date from which the period of limitation for a suit to enforce a right of preemption arising from a registered sale-deed is to be computed. The explicit and mandatory provisions of section 31 of the 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 contention that if the Registrar fails to issue public notice envisaged by the mandatory provisions of section 32 of the Act the period of limitation is to be computed from the date of knowledge by the pre-emptor is misconceived. Such a 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 omissus'. A comparative study of sections 31 and 32 of the Act would make it manifest that the provisions with regard to issuance of public notice by the Registrar contained in section 32 had no nexus with the period of limitation prescribed by section 31 for filing a pre-emption suit in respect of sale transaction effected through a registered sale deed and is meant to provide an extra source of knowledge for making 'Talb-iMowathibat' and an alternate timeframe for making Talb-e-Ishhad'. In accordance with subsection (3) of section 13 of the Act which reads as follows:--- "Subject to his ability to do so, where a pre-emptor has made Talb-e-Mowathibat under subsection (2), he shall as soon thereafter as possible but not later than two weeks from the date of notice under section 32 or knowledge, whichever may be earlier, make Talb-e-Ishhad by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgement due to the vendee, confirming his intention to exercise the right of pre-emption: ' Provided that in areas where due to lack of post office facilities it is not possible for the pre-emptor to give registered notice, he may make Talb-e-Ishhad in the presence of two truthful witnesses."
' 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 All v. Mst.
Surriya Begum (PLD 1978 SC (AJ&K) 118) 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.
' As regards the third contention it will be enough to say that the plaint was rightly rejected as the suit having been brought beyond one hundred and twenty days of registration of the sale deed was -time-barred and the allegation that the transaction was effected in a clandestine manner overlooks this legal position that registration of a sale deed is a notice to public-at-large. For these reasons, leave is declined and the petition is dismissed."
5. It may be true that in the subsequent case of Mian. Asif Islam v. Mian Muhammad Asif and others (PLD 2001 SC 499) decided by a two-Member Bench of this Court an Hon'ble Judge of this Court had recorded an opinion which supported the contention of the learned counsel for the petitioner advanced before us but at the same time it is equally true that in the same case the other Hon'ble Judge of this Court had disagreed with the former Hon'ble Judge regarding such interpretation of the provisions of sections 31 and 32 of the N-W.F.P. Pre-emption Act, 1987 and both the Hon'ble Judges had ultimately . Concurred in their conclusion regarding correctness of rejection of the plaintiff's plaint in a suit for possession through pre-emption on the basis of the same being barred by time. In the said case Iftikhar. Muhammad Chaudhry, J. (as the present Hon'ble Chief Justice then was) had opined as follows: "Testing the provision of section 31(2) of the Act on the touchstone of the above principles we are inclined to hold that as this section has been incorporated in Act, with a view that a preemptor may not lose right to pre-emption if otherwise available to him merely for the reason that he was not informed about the sale transaction, therefore, an additional duty has been imposed upon the Registrar to make such transaction public by adopting the procedure 'laid down in subsection (2)
Of section 31 of the Act by using the word "shall" which represents to the command - of law, therefore, the registering authority is bound to. Complete the registration of document and make it public in the prescribed manner otherwise despite of registration of sale-deed if provisions of subsection (2) of section 31 of the Act are not complied with it would be deemed that general public including the pre-emptor had no knowledge about the registration of the document and time of four months for filing suit for pre-emption will run from the knowledge of pre-emptor. Thus we are of the opinion and for the above discussion and the background of the legislation narrated hereinabove the provisions of subsection (2) of section 31 of the Act are mandatory in nature. In addition to it both the sections i.e, sections 30 and 31 are dependent upon each other for the obvious reason that in the former section period for enforcement of right of pre-emption within four months from registration is prescribed of sale-deed is prescribed whereas under latter section the registering officer is under legal obligation to issue notice to general public about registration of the sale-deed so that any person may claim his right of preemption. Thus, both the sections being mandatory in nature have to be read together in conjunction of each other."
' Hamid Ali Mirza, J. Had, however, recorded his separate opinion in that case and had observed as under: "5. Section 30 of the Punjab Pre-emption Act has specifically provided that the period of limitation to enforce a right of preemption shall be four months to run (a) from the date of registration of sale-deed; (b) from the date, of attestation of the mutation, if the sale is made otherwise than through a registered sale-deed; (c) from the date on which the vendee takes physical possession of the property if the sale is made otherwise than through a registered sale-deed or mutation; or
(d) from the date of knowledge by the pre-emptor if the sale is not covered under paragraph (a) or paragraph (b) or paragraph (c). Admittedly, the right of pre-emption shall arise only in case of sale of immovable property vide section 5 of the said Act, which could take place either by registration of sale-deed or otherwise as provided under section 30 of the said Act when the title of the said property 'as required by law is passed onto vendee i.e, where the deed of conveyance is registered or otherwise as said above, and such right of pre-emption to pre-emptor shall not arise when public notice is affixed as registration of a document is not a thing of which either the executant, i.e, vendor, or the vendee has to do anything in that direction as said act is to be performed after execution of a document by the parties by the officer appointed by law for that performance. In the instant case, sale of immovable property was effected though registration of sale-deed, therefore, as provided under section 30 of the said Act suit to enforce the right of pre- emption shall be four months from the date of registration of the sale-deed. It may be observed that there could not be concealment about the sale from the public or the pre-emptor in case sale is through registration as the said transaction is by the parties before the public functionary whose public record is open, to public, therefore, it would not be said secret deal of the parties to detriment of pre-emptor.
6. The word "shall" used in section 30 of the said Act is mandatory in nature, therefore, the period of four months from the date of registration fixed by section 30 cannot be extended because of section 31 of the said Act as official act is presumed to have been duly and regularly performed.
Time of four months will run from the date of knowledge of pre-emptor only if the sale is not under paragraph (a) or paragraph (b) or paragraph (c) or clause (d) of section 30 of the Act and time cannot be made to run from the date of knowledge of giving of public notice as required by section 31 of the said Act, in case the sale is through registration of deed. In case the word "shall" used in section 31 of the said Act is held to be mandatory in nature thereby making the running of time of four months as provided under section 30 of the Act subject to the affixation of the public notice, it would negate the object of provisions of section 30 where under period of four months fixed for filing the suit for pre-emption is to be reckoned from the date of registration of the sale-deed and the effect of not filing the suit within the said period would entail consequence of dismissal of the suit even if the plea for the same is not raised as provided under section 3 of the Limitation Act. .This Court has time and again held that law should be saved rather than destroyed and the Court must lean in favour of upholding the constitutionality of legislation. Rule of Constitutional interpretation is that there is a presumption in favour of constitutionality of legislative enactments.
' Non-affixation of notice would not make the execution and registration of deed a void document but in case suit for preemption is not filed within four months from the date of registration of the deed, such suit so filed would be barred by time and suit having been filed in contravention of the law would be liable to be dismissed which right when accrued in favour of vendee cannot be allowed to be taken away because of non-compliance of the officers who were to affix notice, to which, the vendee was not at fault. The word "shall" so used in section 31 of the Act, therefore, could not be said to be mandatory in nature but is directory in nature.
8. Admittedly, as stated by the appellant, conveyance deed was registered on 8-2-1995 before the Sub-Registrar Saddar, Lahore and the official Act of affixation of public notice as required under section 31 of the Act would be deemed to have been properly and regularly performed by him within 15 days of the registration in absence of contrary evidence and the suit having been filed on 22-4-1996 was hopelessly barred by time, therefore, the order of rejection of the plaint by the learned Senior. Civil Judge, Lahore and upheld by the learned Judge in Chambers was legal and valid consequently no interference is required by this Court. Resultantly, the appeal is dismissed."
6. In view of what has been discussed above we have found no occasion for taking a different view of the matter than the one already taken in the cases of Muhammad Ramzan and Maulana Nur- ul-Haq (supra) and we may only add that if the contention of the learned counsel for the petitioner noted above were to be accepted then at least a period of two weeks would be required to be added to the period of limitation of one hundred and twenty days specified in section 31 of the N- W.F.P. Pre-emption Act, 1987 and such enlargement of the period of limitation through a judicial exercise may amount to committing violence upon the relevant provisions of the statute which are otherwise quite clear, categorical and unambiguous.
7. As a consequence of the discussion made above rejection of the petitioner's plaints Oil the ground of the same being barred by time having been filed beyond the statutorily prescribed period of limitation has not been found by us to be open to any legitimate exception. These petitions are, therefore, dismissed and leave to appeal is refused therein.