1. Muhammad Khan appellant filed a suit, for the grant of decree for possession through pre- emption, against Muhammad Amir anti another, who are respondents before this Court, regarding sale of land measuring 46 Kanals,. 8 Marlas, bearing Khasra No. 714 situate in the revenue Estate of Dhoke Khanna Dhakli, which sale took place in favour of the respondents, vide Mutation No. 1766 sectioned on 23-11-1966. Learned Civil Judge, Tallangang who had the territorial jurisdiction to entertain the suit was on tour to Pindigheb, therefore, the plaint was presented to Ahlmad of the Civil Court at Tallagang on 23-11-1967 who wrote a note on the plaint that the same has been presented by Malik Altaf Hussain Jafri, Advocate and shall be placed before the Presiding Officer on 27-11-1967. The note written by the Ahlmad while receiving the plaint on 23-11-1967 is reproduced as under: Learned Civil Judge, Tallagang came back from tour and held the Court at Tallagang thereafter for the first time on 27-11-1967, on which date the plaint in question was presented before him. It was ordered to be registered on the same day and to be re-fixed on 29-11-1967 after necessary Partaal.
2. Order passed by the learned Civil Judge dated ,27-11-1967 is reproduced as under: --
2. The suit was contested inter alia on the ground of limitation, etc. On the basis of the pleadings of the parties, the learned trial Court settled the following issues:-- (1)Whether the plaintiff has superior right of pre-emption?
3. (2)Whether the ostensible sale price of Rs.5,000 was fixed in good faith or paid?
4. (3)If issue No. 2 is not proved what was the market value of the suit land at the time of sale?
5. (4)Whether the suit is time-barred?
6. (5)Whether the plaintiff was a consenting party to the sale, if so. its effect?
7. (5-A) Whether the suit is barred by M.L.R. 64?
8. (6)Relief. and vide judgment and decree dated 5-7-1974 decreed the suit in favour of the plaintiff-appellant holding that he is possessed of superior pre-emptive right and as the suit was instituted on 23-11- 1967 and the sale which took place on 23-11-1966, hence the same is within limitation. Aggrieved. of this judgment and decree, the respondents filed Regular First Appeal in the District Court of Cambellpur, which has been accepted by the learned District Judge, Cambellpur, vide judgment and decree dated 8-2-1975 and the suit has been dismissed as barred by time on the ground that the Ahlmad had no lawful authority to receive the plaint on 23-11-1967, therefore, the suit shall be deemed to have been instituted on 27-11-1967 on which date it was presented before the learned Civil Judge, Tallagang, who held his Court at Tallagang on 27-11-1967 after coming back from Pindigheb where he had been working on tour prior thereto, therefore, the suit has not been filed within limitation. Aggrieved of this judgment and decree, the pre-emptor has filed this second appeal.
3. Mr. Dr. G.S. Khan, Advocate, learned counsel for the appellant has argued that in absence of the learned Civil Judge, the Ahlmad of the Court had received the plaint on 23-11-1967, therefore, there will be a presumption that he had the authority to receive the plaint in question as he had received plaints of other suits as well on the same date, which are duly entered in the relevant register, therefore, as per practice of the Court, it shall be presumed that the plaint was received by an authorized person, hence, the suit is well within time and has illegally been dismissed in appeal learned counsel has further contended that even if it is assumed for the sake of arguments that the Ahlmad was not authorized to receive the plaint on 23-11-1967 as the learned Civil Judge was on tour and no arrangements had been made to receive the plaints in his absence, the suit shall be deemed to have been validly instituted on 27-11-1967 and hence, it shall be within limitation as per provisions of section 4 of the Limitation Act, as prior thereto the Court shall be deemed to be closed and the plaint was presented beforc the learned Civil Judge, on the first day of the reopening of his Court at Tallagang. In support of his contention, learned counsel has placed reliance on the cases of Noor Muhammad v. Chulaman and others (AIR 1934 Lahore,622), Anwar Hussain Shah and others v. Akhtar Hussain Shah (PLD 1967 Azad J&K 78) and Mosan Khan and 4 others v. Mir Alam Khan (PLD 1992 Supreme Court 47).
9. 3-A. As against the above arguments, learned counsel for the respondents has argued that there is absolutely nothing on record to prove that the Ahlmad was authorised to receive the plaints on 23- 11-1967 and it rather Stands established on record from the letter dated 26-5-1994 forwarded by the learned District Judge, Attock to this Court and the statement of Superintendent, District Courts and Naib-Nazirs of Pindigheb and Tallagang that there was no such order or authorization in favour of the Ahlmad of the Court of learned Civil Judge, Tallagang to receive the plaints on 23-11- 1967 and, therefore, he had no authority to receive the plaints and as such, it cannot be 'said that the suit was validly instituted on 23-11-1967. Hence, according to the learned counsel, the suit has rightly been dismissed as barred by time. Learned counsel has further contended that the plaintiff could have instituted the suit at Pindigheb where the learned Civil Judge was holding the Court, which place is at a shorter distance from Tallagang, therefore, the provisions of section 4 of the Limitation Act cannot be availed of by him, as it cannot be said that from 23-11-1967 up to 26-11- 1967, the Court was closed and had reopened on 27-11-1967. In support of his contention, learned counsel has placed on record photocopy of the High Court Rules and Orders, Volume 1, Chapter 1-B and has placed reliance on judgments of Nazar Muhammad v. Murad Ali and others (PLD 1960 Lahore 757 and Khuda Bakhsh v. Muhammad Ismail (PLD 1978 Lahore 1049). Learned counsel for both the parties have agreed that only issue which requires determination in this case is issue of limitation and so far as the other issues are concerned, the findings rendered by the learned trial Court are unexceptionable and are not liable to be interfered with.
10. 4.I have considered the arguments addressed by the learned counsel for the parties and have perused the record. During the course of hearing of the arguments in this case, I had directed the learned District Judge, Attock, to apprise this Court about the arrangements made (if any) to receive plaint---petitions at Talagang, during the period when the learned Civil Judge was holding the Court at Pindigheb. He has informed this Court vide intimation dated 26-5-1994 after perusal of the office record of the Court as well as that of the Court concerned that no such arrangements had been made either by the District Court or by the learned Civil Judge vide order dated 28-5- 1994. I hadsummoned the Clerk of Court of learned District Judge, learned Senior Civil Judge, Attock, Civil Judge, Pindigheb and Talagang. Officials of the said Courts appearing before me today have stated that on 23-11-1967 nobody had been authorised either by the District Judge or by the learned Civil Judge to receive the plaints in absence of the learned Presiding Officer when he was to hold Court at Pindighcb. Naib-Nazir to the Court of learned Civil Judge, Talagang, however, has produced before me a register of institution of suits wherein certain suits are mentioned to have been instituted on 23/27-I1-1967, plaints whereof had been received by the Ahlmad of the Court on 23-11-1967 at Talagang, photo copy whereof has been placed on record of this case. However, this register does not establish that the Ahlmad of the Court of learned Civil Judge, Talagang had any lawful authorit. to receive the plaints of the suits on23-11-1967. Receipt of plaints by Ministerial Staff in absence of express authorisation is strictly prohibited except in cases where the Court isopen but the Presiding Officer is on leave and there is no other judicial officer in charge of his current duties as is clear from the contents of clause (c), Volume 1, Chapter I-B of High Court Rules and Orders reproduced as under:-- "(c) The members of the ministerial establishment are strictly forbidden to receive petitions, plaint or other documents direct from lawyers and their clerks or from litigants except when the Judge is on leave and no other judicial officer is -an charge of his current duties. "
11. Similar view has been taken in cases of "Nazar Muhammad" and "Khuda Bakhsh" (supra). Therefore, I hold that the suit was not validly instituted on 23-11-1967. However, above findings are not sufficient to finally decide the issue of limitation against the appellant. Further question to be determined in this case would be as to when the suit in question shall be deemed to have been validly instituted and what shall be the terminal point of limitation? It is admitted by both the learned counsel that the plaint was presented before the learned Civil Judge on 27-11-1967, which was the first working day of his Court after he had come back from tour from Pindigheb, therefore, under law, it shall be deemed that the suit was instituted on 27-11-1967. As per provision of section 4 of the Limitation Act, if the Court is closed on the date of expiry of period of limitation as fixed by law, the plaint can be presented on the first re-opening day of the Court and shall be deemed to have been filed within limitation. In the case in hand, it is an admitted fact between the parties that the learned Civil Judge worked at two different places, namely, Pindigeb and Talagang. It is also admitted that on 23-11-1967, learned Civil Judge was holding his Court at Pindigheb and the Court at Talagang was "closed". It is also an admitted fact that after coming back from tour from Pindigheb, learned Civil Judge held his Court at Talagang for the first time on 27-11-1967 on which date the plaint was presented before him. As the learned Civil Judge Talagang, was away to Pindigheb and was not holding the Court at Talagang up to 26-11-1967 and had made no arrangements for receipt of plaints in his absence, it shall be deemed that his Court Was closed for all intents and purposes, and, therefore, the plaintiff was well within his rights to file the suit on 27- 11-1967, being the first reopening day of the Court and was not obliged to file it earlier at Pindigheb.
12. As the period of limitation had expired on the date when the Court was closed for filing of the suit, therefore, he will be entitled to claim benefit of the provisions of section 4 of Limitation Act and the suit instituted on 27-11-1967 shall be deemed to have been filed within limitation.
6. The above taken view also finds support from the cases cited by the learned counsel for the appellant. In case of "Mosan Khan and four others" (supra) it has been held that where a learned Civil Judge was on leave on a specific date, and the District Judge had not authorized any official to receive the plaints in his absence, the same could be presented on the first day of reopening of the Court and shall be deemed to have been instituted within limitation under the provision of section 4 of the Limitation Act. In case of "Noor Muhammad" (supra) where a subordinate Judge of S while he was sitting at L the plaintiff presented his plaint at S which was accepted by the Naib- Sheriff of the Court (who was not authorized to receive plaints under Order VI, Rule 1, C.P.C.) and no other arrangements had been made for the reception of the plaint by a proper Officer during the absence of the Presiding Officer from ,S and it was found that the suit was within time when it was accepted by Naib-Sheriff but became time-barred when it was subsequently placed before the Sub-Judge on his return from L, it was held that though presentation of the plaint to Naib-Sheriff was not a proper presentation and the suit could not be said to have been instituted on the day of such presentation, still it must be taken that the Court at ' S' was closed during the absence of the Sub-Judge from ' S' and applying the provisions of section 4 of the Limitation Act, the suit must be held to be within time when it was placed before the Sub-Judge on his return to ' S' , as the plaintiff cannot be made to suffer for want of proper arrangements for reception of the plaints during absence of the Presiding Officer from ' S' . Similarly, in case of "Anwar Hussain Shah and others"
13. (supra), learned Sub-Judge was holding Court at two places. He used to ordinarily sit at Abbaspur but for about ten days, he used to sit at Pallangi, where he was holding his Court. The suit which had to be instituted at Abbaspur was instituted after the expiry of limitation at the said place on which date, the learned Civil Judge had come back from Pallangi after holding of Court there. It was argued that the suit was barred by time because the plaintiff could have filed the suit at Pallangi where the learned Civil Judge was holding Court and even otherwise clerical staff of the learned Civil Judge was present in Abbaspur, therefore, the Court shall not have to be deemed closed prior to the date of institution of the suit on 24-8-1962 when the Presiding Officer had come back to Abbaspur. It has been held that in view of the above circumstances, for all intents and purposes the Court of learned Civil Judge at Abbaspur shall be deemed to be closed prior to 24-8- 1962, therefore, the suit filed on the first day of reopening of the Court at Abbaspur was held to be within limitation, therefore, I hold but the plaint of the suit filed by the appellant-plaintiff received by the Ahlmad on 23-11-1967 which was placed before the learned Civil Judge on 27-11-1967, which was the first re-opening day of his Court at Talagang shall be deemed to be filed within limitation as per provisions of section 4 of the Limitation Act, and, therefore, had rightly been held to be so by the learned trial Court. Findings of the learned lower Appellate Court on this issue as such being illegal, are set aside and the findings rendered by the learned trial Court on the issue of limitation are upheld though for different reasons. Although the appeal was decided by the learned First Appellate Court only on the question of limitation, as no other point has been argued by either of the learned counsel for the parties before me, therefore, findings oft other issues rendered by the learned trial Court are affirmed.
14. 7 ' Resultantly, I accept this appeal, set aside the impugned judgment and decree rendered by the learned First Appellate court and restore the judgment and decree rendered by the learned trial Court with no order as to S costs. It is directed that in case the appellant has not deposited the decretal amount as determined by the learned trial Court, it shall be deposited on or before 31-7- 1994, failing which his suit shall stand dismissed with costs.