SADAQAT ALI KHAN, J.:- The instant Civil Revision No.694/2005 has been filed by present petitioner Mst.Najma Bibi/defendant against judgment and decree dated 19.11.2005 passed by learned Addl:District Judge Ahmad Pur, East according to which, the appeal of respondent Malik Muhammad Aslam plaintiff was accepted and case was remanded back to the learned Trial Court for decision afresh after hearing both the parties.
2. The facts of the case are that present respondent Malik Muhammad Aslam being plaintiff filed a suit for possession through pre-emption on 27.8.1998, against present petitioner regarding suit property well mentioned at the headnote of the plaint on the basis of sale mutation No.189 dated 18.4.1998 Exh.D1. Present petitioner after service submitted written statement and denied the assertions made by the plaintiff in his plaint. It is further stated in the written statement that this mutation No.189 Exh.D1 was sanctioned on 18.4.1998 whereas, suit was filed on 27.8.1998 beyond the limitation period of 4 months mentioned in section 30 of Punjab Pre-emption Act 1991. Learned Trial Court treated the following issue No.3 as preliminary issue:- Issue No.3. "Whether the suit is time barred ?OPD"
3. Present petitioner being defendant in order to prove above mentioned issue produced disputed sale mutation No.189 dated 18.4.1998 as Exh.D1. On the other hand, plaintiff produced Jamabandi for the years 1993-94 as Exh.P1, copy of passbook Exh.P2 and closed the evidence. Learned Trial Court after hearing arguments of both the learned counsel for parties dismissed the suit of the present respondent vide judgment and decree dated 14.11.2002 treating the suit of the plaintiff as time barred. The appeal filed by the respondent was accepted by the learned ADJ Ahmad Pur East vide judgment and decree dated 19.11.2005 and case was remanded to the Trial Court with following observations:- "U/s 13 of the Punjab Pre-emption Act 1991 Talab-e-Mowathibat is made by the pre-emptor immediately in the sitting in which he was come to know about the sale, declaring his intention to exercise his right of pre-emption. In present case, the plaintiff alleged that he came to know of the sale on 13.8.1998, and made Talab-e-Mowathibat. Thereafter, he sent notice to the defendant on 15.8.1998 and this Talab-e-Ishhad was made not later than two weeks from the date of knowledge.
Third Talab-e-Khasoomat and this is a demand by filing of the suit. Admittedly, the suit by the plaintiff was filed on 27.8.1998, which was filed within four months from the date of knowledge by the pre-emptor as is mentioned in section 30 clause (d) of the Punjab Pre-emption Act 1991, therefore, the suit was not time barred. Learned Trial Court did not take into consideration the provisions of section 30, clause (d) and dismissed the suit of the plaintiff, therefore, learned Trial Court committed illegality. The limitation period for filing of a suit for pre-emption is 4 months but such limitation was to be started from the date of knowledge of the plaintiff which is 13.8.1998, therefore, the judgment and decree dated 14.11.20002 being not sustainable under law is hereby set aside. The case is hereby remanded to the learned Trial Court. Learned Trial Court is hereby directed to decide the case after hearing both the parties. Parties are directed to appear before the learned Trial Court on 28.11.2005."
4. Hence, this civil revision before this court.
5. Learned counsel for the petitioner submitted that disputed sale mutation No.189 Exh.D1 was sanctioned on 18.4.1998, whereas, sit was filed on 27.8.1998 which is time barred and learned Trial Court has rightly dismissed the suit of the present respondent being barred by time, but learned lower appellate court did not consider this legal point and wrongly accepted the appeal of the respondent. It is lastly contended that this appeal may be accepted impugned judgment and decree of the learned appellate court may be set aside and judgment and decree of the learned Trial Court may be restored. On the other hand, learned counsel for respondent/plaintiff submitted that suit of the plaintiff is within limitation period. It is further contended that the note given by the Patwari with red ink on Jamabandi Exh.P1 shows that this mutation was sanctioned on 27.4.1998.
6. I have heard learned counsel for the parties and perused the record.
7. The facts of the case have been mentioned in para-2 of the judgment, therefore, there is no need to repeat the same to avoid repetition and duplication.
8. I have perused the sale mutation No.189 Exh.D1, according to which, this mutation was registered on 9.3.1998 by the Patwari and on 11.3.1998 concerned Revenue Officer had recorded the statements of concerned parties, whereas, this mutation was sanctioned on 18.4.1998. plaintiff/ respondent could not rebut this document, rather on perusal of the plaint filed by the respondent/plaintiff, it is revealed that plaintiff has not given any date of attestation of this mutation No.189 Exh.D1. The relevant para-1 of the plaint is hereby re-produced as under;- {{URDU TEXT}}
9. It is not disputed that respondent/plaintiff has filed suit for pre-emption on 27.8.1998. This shows that pre-emption suit has been filed after expiry of 4 months i.e. period of limitation for filing of pre- emption suit mentioned in section 30 of Punjab Pre-emption Act 1991 which is hereby re-produced for reference:- "30. Limitation.--The period of limitation for a suit to enforce a right of pre-emption under this Act shall be four months from the date.
(a) of the registration of the sale deed;
(b) of the attestation of the mutation, if the sale is made otherwise than through a registered sale deed;
(c) on which the vendee takes physical possession of the property if the sale is made otherwise than through a registered sale deed or a mutation; or
(d) of knowledge by the pre-emptor, if the sale is not covered under paragraph (a) or paragraph
(b) or paragraph (c)."
10. This case falls within Section 30(b) of Punjab Pre-emption Act 1991 mentioned above and period of limitation for a suit to enforce right of pre-emption had started in this case from the date of attestation of the mutation No.189 Exh.D1 i.e. 18.4.1998. Learned lower appellate court has wrongly observed through impugned judgment and decree that this case for the purpose of limitation falls within section 30(d) of Punjab Pre-emption Act 1991 and period of limitation shall run from the date of knowledge by the pre-emptor. Reliance is placed on case Muhammad Asif Islam versus Mian Muhammad Asif and others PLD 2001 Supreme Court 499, in which Hon'ble Supreme Court of Pakistan observed at pages 510, 511 512 and 513 as under:- "5. Section 30 of the Punjab pre-emption Act has specifically provided that the period of limitation to enforce a right of pre-emption shall be four months to run (a) from the ate 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) on which the vendee takes physical possession of the property if the sale is made otherwise than through a registered sale deed or a mutation; or (d) 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 preemption 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 on to 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 of the sale deed. It may be observed that there could not be concealment about the sale from the public or the preemptor 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 provision 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. Reference may be made to Dr. Tariq Nawaz and another v. Government of Pakistan 2000 SCMR 1956. Admittedly, the word "shall" used in section 31 of the said Act does not carry any penal clause in case of non- compliance of the affixation of public notice. Therefore, the word "shall" used in section 31 of the said Act is directly in nature. Reference may be made to the case of Niaz Muhammad Khan v. Mian Fazal Raqib PLD 1974 SC 134 where this Court has observed:- "In the two Punjab cases already referred to in an earlier part of the judgment, the view taken is that similar provisions in the Punjab Legislation were mandatory in nature. This view has been followed by the High Court in the present case. It is true that no universal rule can be laid down for the construction of statutes as to whether mandatory enactment shall be considered directly only or obligatory, with an implied nullification for disobedience. It is the duty of the courts to try to get at the real intention of the Legislature, by carefully attending to the whole scope of the statute to be construed. As a general rule, however, a statute is understood to be directory when it contains matter merely of direction, but not when those directions are followed up by an express provision that, in default of following them, the acts shall be null and void. 'To put it differently, if the act is mandatory disobedience entails serious legal consequences amounting to the invalidity of the act done in disobedience to the provision'."
Non-affixation of notice would not make the execution and registration of deed a void document but in case suit for pre-emption 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. Reference may also be made to the decision of this court in Maulana Nur-ul-Haq v. Ibrahim Khalil 2000 SCM R 1305. Qazi Muhammad Farooq, J., speaking for the Bench, in paragraph 7 of the judgment, has observed:- "The next pint for determination relates to the date from which the period of limitation for a suit to enforce a right of pre-emption 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 preemptor is misconceived. Such a provision is neither contained in section 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 preemption suit in respect of sale transaction effected through a registered sale deed and is meant to provide an extra source of knowledge for making 'Talab-e-Mowathibat' and an alternate time frame for making Talab-e- Ishhad in accordance with subsection (3) of section 13 of the Act.
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 the 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 fact shall be null and void. In Major Shuja Ali v. Mst.
Surrya Begum (PLD 1978 S.C (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 secton 32 of the Act being directory canot in any manner override or dilute the provisions of section 31 of the Act which are mandatory by all standards."
The above interpretation of word "shall" used in sections 30 and 31 of the said Act is in consonance with the injunctions of Islam.
8. However, in the instant case, perusal of the plaint would show that in paragraph 9 of appellant/plaintiff has stated:- "That the cause of action arose in favour of plaintiff and against the defendants when the sale deed of the above land was registered vide Dastaveez No.1329 Bahi-I, Jild 2051 dated 8-2-1995 before the Sub. Registrar, Saddar, Lahore. Secondly, when the defendants submitted an application under Order I, Rule 10 of the of The CPC for impleading themselves as party in the suit filed by the plaintiff for partition, administration/recovery, damages and permanent injunction sub judice before Ch.Shahid Hussain, Civil Judge Lahore on 10.9.1995 and finally on a week ago when the defendants refused to accept the pre-emption right of the plaintiff of the land in dispute even after the receipt of the notice under section 13(3) of the Punjab Pre-emption Act 1991.
Nowhere in the plaint the appellant/plaintiff has stated that no public notice as required by section 31 of the said Act was affixed, therefore, time would run from the date of his knowledge. 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.
11. In view of above discussion, I am of the view that the impugned judgment and decree is result of mis-reading and non-reading of evidence and are not sustainable. For the foregoing reasons, this civil revision is accepted, impugned judgment and decree are hereby set aside and judgment and decree dated 14.11.2002 passed by learned Civil Judge Ahmad Pur East are hereby restored.