Tufail Muhammad respondent No.3 herein, filed a suit for ejectment against his tenant the petitioner Nawab with respect to agricultural land situate in village Sehjra, Tehsil and District Kasur in the Court of Assistant Colector Class I, on 26th of March, 1988. This suit could not however, be decided by the Assistant Collector within the sixty days and therefore, stood transferred to the Collector in terms of the Punjab Land Reforms (Procedure for Ejectment Suits) Rules, 1977. The Collector decreed the suit for ejectment holding that the petitioner was a defaulter on 19th July, 1989. The petitioner filed an appeal before the Additional Commissioner who dismissed it on the, grounds that it was not maintainable; was barred by time and even otherwise the petitioner had no case on merits. The Additional Commissioner was of the view that since the case had been dealt with under the Punjab Land Reforms (Procedure for Ejectment Suits) Rules, 1977. The order of Collector was not open to appeal. The request of the petitioner to treat the appeal as revision was declined as the appeal was found to be without any substance. This order of the Additional Commissioner dated 24th January, 1990 has been assailed by the petitioner by filing this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
2. The main contention of the learned counsel for the petitioner is that under Rule 4 (6) of the Punjab Land Reforms (Procedure for Ejectment Suits) Rules, 1977, the Collector was under an obligation to have decided the appeal within 30 days and his failure to do so has rendered the proceedings as invalid and without jurisdiction. There is hardly any merit in this contention of the learned counsel. Although sub-rule (6) of rule 4 of the Punjab Land Reforms (Procedure for Ejectment Suits) Rules 1977 provides that the Collector shall decide the suit transferred to him within a period of 30 days but no consequence A resulting from failure to abide by this time limit has been prescribed. Generally, the provisions as to time during which public functionaries are required to perform certain acts are to be regarded as directory and not absolute as public interest is not to suffer on account of the laches of a public functionary. It is well settled that the word "shall" does not necessarily indicate that the provision is mandatory but the object of provision has to be ascertained and it has to be seen whether time clause in it is a matter of substance, in order to determine its nature Crawford in his book "Statutory Construction", Art 269 states the law as thus:- "As a general rule, a statute which specifies a time for the performance of an official duty will be construed as directory so far as the time for performance is concerned, especially where the statute fixes the time simply for convenience of orderly procedure. - - - - - - - - - - - - - - - - - - - Furthermore, it may be asserted, as a general rule that where a statute imposes upon a public officer the duty of performing some act relating to the interests of the public and fixes a time for the doing of such act, the requirement as to time is to be regarded as directory, and not as a limitation of exercise of the power, unless it contains negative words, denying the exercise of the power, after the time named, or unless from the character of the act to be performed, the manner of its performance, or its effect upon public interest or private rights, it must be presumed that the legislature had in contemplation that the act had better not be performed at all than be performed at any other time than that named."
Similarly the following statement appears in Sutherland's Statutory Construction 3rd Edition Volume III at page 107:-- "A statute specifying a time within which a public officer to perform an official act regarding the rights and duties of others, and made with a view to the proper orderly, and prompt conduct of business, is usually directory, unless the phraseology of the statute, or the nature of the act to be performed and the consequences of doing or failing to do it at such time, is such that the designation of time must be considered a limitation on the power of the officer. So a statute requiring a public body, merely for the orderly transaction of business, to fix the time for the performance of certain acts which may as effectually be done at any other time is usually regarded as directory."
Reference may also be made to the authorities of the Supreme Court in Hotel Metropole Ltd.
Karachi v. Hotel Metropole Employees' Union and another (PLD 1964 SC 633), Niaz Muhammad Khan v. Mian Fazal Raqib (PLD 1974 SC 134), Sudej Cotton Mills Ltd. Okara v. Industrial Court. West Pakistan, Lahore and other (PLD 1966 SC 472) and M/s. Amin Agencies Ltd. Karachi v. Pakistan through the Secretary, Ministry of Food (1973 SCMR 194), where similar provisions in other enactments fell for consideration and it was observed that the provisions as to time were not mandatory. In re: Messrs Welcome Agencies (Private) Limited Company (1988 CLC 206) the question before the Court was as to the effect of not deciding a petition under the Companies Ordinance, 1984 within the period of 90 days as required by section 9 of the Ordinance. It was held that the provision is directory and not mandatory.
3. Thus on no principle can the interpretation pressed into service by the learned counsel be accepted. The plaintiff cannot be non-suited merely because a public functionary has failed to perform the duty required of him by law within the stipulated time. Such an interpretation as suggested by the learned counsel would not only be contrary to the established rules of interpretation but will also lead to absurdity and incongruity, A comparison of sub-rule (5) with sub-rule (6) shows that while consequences of non-observance of sub-rule (5) have been provided namely that the suit shall stand transferred to the Collector but no such consequence of failure to abide by the time limit mentioned in sub-rule (6) has been stated. This omission so is significant and as such it cannot be held that on account of failure to observe the time limit, the proceedings before the Collector stood frustrated.
4.It was next submitted by the learned counsel that refusal of Additional Commissioner to treat the appeal as revision, was not justified. This contention is again not well founded. In the impugned order the Additional Commissioner has C observed that oven if the appeal be treated as revision, the petitioner has no case on merits as he had defaulted in payment of rent. This finding is amply supported by the evidence on the record especially as no receipts for payment of rent for the disputed period have been produced.
There is no merit in this petition. It is dismissed in limine.