MUHAMMAD DAUD KHAN, J.- By means of this constitutional petition under article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner/defendent has challenged the judgments and orders dated 17.07.2006 of learned Civil Judge-V, Lakki Marwat and dated 14.11.2006 of District Judge, Lakki Marwat. Both the courts below have rejected an application under Order VII, Rule 11 (d) the Civil Procedure Code, 1908 (CPC). The application was moved in a preemption suit.
2. Facts of the case briefly are that the petitioner has purchased the suit property through a sale deed bearing No.37 attested on 17.03.2005. On 07.09.2005, the respondents/plaintiffs instituted a suit for preemption on the basis of the registered deed.
3. The petitioner appeared before the trial court and submitted an application for rejection of the plaint under Order VII, Rule 11 (d) CPC. The plea the petitioner raised in his application was that the suit was time barred; instituted beyond the period of one hundred and twenty days, prescribed in section 31 of the Khyber Pakhtunkhwa Pre-emption Act, 1987(hereinafter called the Act). A reply was filed to the application. After hearing arguments of the learned counsels for the parties, the learned Civil Judge-V, Lakki Marwat rejected the application vide its order dated 17.07.2006. The said order was upheld in appeal by the learned District Judge, Lakki Marwat, vide judgment dated 14.11.2006.
4. Aggrieved by the above judgments and orders of both the subordinate courts, the present petitioner challenged the same through a Civil Revision under section 115, C.P.C. The revision petition was admitted to full hearing vide an order dated 19.01.2007 passed by a Single Bench of this Court at D.I.Khan bench dated. Later on, during a subsequent hearing, both the parties .jointly requested for converting the revision to a writ petition, relying on "Mst. Samna .S'ohail Vs Humaid Naseer-al- Owais and 2 others"(1989 CLC 1949)"Muhammad Ayub and 4 others Vs Dr. Obaidullah and 6 others ".(1999 SCMR 394).
5. Today the petitioner is not present. Mr. Noor Gul Khan Marwat, counsel for the petitioner present in another case, submitted that he has returned the brief and is no more representing the petitioner. Mr. Akbar Zaman, respondent is present in the Court, while his counsel is also not in attendance. Perusal of previous order sheets reveals that this case was adjourned numerous times, indicating that both the parties are not interested to pursue the case. As the case is an old one pertaining to the year 2006 and a question of law is involved in it, this Court deems it appropriate to decide it on its own merits.
6. While rejecting the application under Order VII, Rule 11(d) CPC, both the subordinate courts held that the limitation period shall run fromthe date of registration of the sale deed. The question, however, is that whether the registration of the deed was given effect. The courts below are of the view that it is a mixed question of law and fact, which could not be resolved without recording pro and contra evidence.
7. Before proceeding to search for the answer to the main question before us, it seems appropriate to have a clear picture of the applicable law: sections 31 and 32 of the Act. For ready reference, both the sections are reproduced below: "Section 31: Limitation:---The period of limitation for a suit to enforce a right of preemption under this Act shall be one hundred and twenty days from the date---
(a) of the registration qf the sale deed; or
(h) 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.---(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."
8. The bare reading of the above sections leave no room for doubt in case of a sale effected through registered deed, the period of one hundred and twenty days shall be computed from the date of registration of the sale. The provisions with regard to the issuance of public notice by the Registrar provided under section 32 of the Act has no nexus with the period of limitation prescribed by section 31 of' the Act. 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, as required by section 13 of the Act.
In view of the use of the word "shall", section 32 of the Act appears to be mandatory. Arguably, this provision is directory in nature. The question whether section 32 is mandatory or directory, has been dealt with by the august Supreme Court of Pakistan in the case "Maulana Nur-ul-Haq v.
Ibrahim Khalil" (2000 SCM R 1305). The Court observed: 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.
10. Earlier, the same question was raised before the Court in 1970s. In the case titled "Niaz Muhammad Khan v. Mian Fazal Racieeb" reported in (PLD 1974 SC 134) the Court ruled 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.
This dictum was further followed in "Major Shujat Ali v. Mst. Surrya Begum (PLD 1978 SC (AJ&K): "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."
11. 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.
19. Both the courts below have erred by linking the computalion of the period ollit9itation Os prescribed in section 31 a the Act) with the failure of issuance ()la public notice by the registrar (as provided in section 32 of the Act). The reason obviously is that section 32 of the Act is directory but not mandatory.
13. The next point for determination before this Court is that whether the plaint can be rejected under Order-VII Rule-11 (d), C.P.C, if the suit is time barred. The bar of limitation is embedded in the Statute of Limitation, therefore, it goes without saying that the expression "barred by limitation" includes limitation provided in section 31 of the Act. It is a settled law that the requirement of limitation goes to jurisdiction and an order made in disregard of the requirement is without jurisdiction. It is in the public interest that the action must be provided within the statutory time limit and section 3 of the Limitation Act provides a clog for every a suit instituted, appeal preferred or an application made after the period of limitation shall be dismissed, although limitation has not been set up as a defence.
14. The words "although limitation has not been set up as a defence" (emphasis added) provides a clear cut indication of the statutory intention that it is not left to the parties to take or not to take objection to the suit, appeal or application being time barred. Under the law, the court must dismiss the suit, appeal or application, as the case may be, if it is hit by the Statute of Limitation.
Any order of a court passed in disregard of the requirement of limitation is without jurisdiction.
Reliance is placed on "Ahsan All and others Vs District Judge and others (PLD 1969 SC 167).
15. In the instant case, perusal of the plaint shows that the sale mutation No.2903 was incorporated vide a registered sale deed attested on 17.03.2005, whereas the suit was filed on 07.09.2005, after lapse of five months and twenty one days. The suit is thus utterly time barred by section 31 of the Act, coupled with Order-VII Rule-11 (d), C.P.C. The law requires that such like plaint shall be buried at its inception. Moreover, the case law too is very clear in this respect. Reference may be made to a few relevant rulings of the Supreme Court of Pakistan. In "S.M Shafi Ahmadi Zaidi through elgal heirs Vs Malik Hassan All (Moin) through legal heirs" (2002 SCM R 338), the Court held: "It is the requirement of law that incompetent suit shall be buried at its inception. It is in the interest of the litigating parties and the judicial institution itself. The parties are saved with their time and unnecessary expenses and the court get more time to devote it for the genuine causes."
Another case is: "Raja All Shan Vs Messrs Essem Hotel Limitted and others" 2007 SCM R 741). The august Court ruled that: "It is pertinent to mention here that in view of the Order VII, rule 11, C.P.C. it is the duty of the Court to reject the plaint if, on a perusal thereto, it appears that the suit is incompetent, the parties to the suit are at liberty to draw Courts' attention to the same by way of an application. The Court can, and, in most cases hear counsel on the point involved in the application meaning Iliereby llialle Conel is not only empowered but under obligation to reject the ,plaint, even without any application from a party, if the same is hit by any of the clauses mentioned under rule 11 of Order VII, C.P.C".
A recent case is "Mir Sahib Jan Vs Jana (2011 SCM R 27), in which the hon'ble Court observed: "The prime object and purpose of establishment of Courts is to dispense justice to the parties before it in accordance with law and to discourage frivolous litigation. The philosophy behind the provisions of Order VII, Rule II, C.P.C. i.e. rejection of the plaint at the initial stage, is based on the concept, "nipping the evil in the bud before it surfaces." For the application of this golden rule guiding principles have been laid down by the Courts from time to time. False and frivolous litigation undoubtedly need to be curbed and stringent measures should be adopted by the Courts at all levels."
On the strength of the above discussion, we have reached to the conclusion that both the courts below have . wrongly dismissed the application cf the petitioner. The orders of boil) the courts are liable to be set aside. Resultantly, the plaint is rejected uncle'. Order VI I, Ride I I (d) (1)('. Th(sre shall be no order as to cost.