' Zafar Shaheen respondent herein purchased suit land (detailed in the plaint) for a sum of Rs,33,73,325 from Mst. Manzooran and others. This happened vide registered deed dated 7-5-1992.
Feeling aggrieved, Haji Abdul Qadar/petitioner herein pre-empted the above sale on 5-9-1992. On the same date, the suit was registered and petitioner was directed to deposit amount of Rs, 11,24,442 1/3rd of the sale price on or before 29-9-1992. As the petitioner could not comply with the aforesaid direction, he moved an application for extension of time. This application came up for hearing on 29-9-1992 and the learned Trial Court was pleased to extend time up to 4-10-1992.
Feeling dissatisfied, the petitioner has come to this Court in its revisional jurisdiction.
2. Learned counsel for petitioner contends that the prescription, with regard to payment of 1/3rd of sale price within 30 days as embodied in section 24 of Punjab Pre-emption Act, 1991 is optional in nature and hence the learned Court ought to have extended the time beyond 30 days. According to learned counsel even 1/3rd of sale price was a clossal amount and petitioner was not in a position to deposit it within a period of 30 days. Learned counsel for the respondents, on the contrary, submits that bare reading of section 24 of the Act shows that it is mandatory in nature; that proviso to it states that the period shall not be extended beyond 30 days of the filing of the suit; that subsection (2) to this Act enacts that if deposit is not made within period fixed by Court the suit shall be dismissed. According to learned counsel the term of command, contained in section 24 of the Act, is so plainly obligatory and not directory. Reliance was placed on Atta Muhammad Qureshi v. Settlement Commissioner PLD 1971 SC 61.
From the foregoing narration, the only question which calls for determination is as to whether section 24 of Pre-emption Act, 1991 is mandatory or directory in nature. A statute is a directory when its provisions need not to be complied with meticulousness and their substantial compliance is enough while mandatory statute or its provisions is whose non-compliance renders the act invalid.
This distinction was highlighted in early case of Hurford v. Omaha 4 Neb.
336. It is instructive to quote the relevant provisions of this judgment:- "If the provisions involved relates to some immaterial matter, where compliance is a matter of convenience rather than substance, or directs certain actions with a view to the proper, orderly, and prompt conduct of public business, the provisions may be regarded as directory, ,but where it directs acts or proceedings to be done in a certain way and indicates that a compliance with such provisions is essential to the validity of the act or proceeding, or requires some antecedent and prerequisite conditions to exist prior to the exercise of the power, or be performed before certain other powers can be exercised, the statute may be regarded as mandatory.
' And, of course, in case of doubt regarding the nature of the stature's requirements, it is necessary for the Court to resort to the various rules pertaining to the construction of statutes, since the determination cannot be made to depend upon mere form alone. The words of the statute, however, must first be considered, and then the nature, context, and object of the statute, as well as the consequence of the various constructions."
3. At this state, I am tempted to quote a pertinent passage from Liverpool Borrough Bank v. Turner:- - "No universal rule can be laid down as to whether a mandatory enactment shall be construed directory only or obligatory with an implied nullification for disobedience. It is the duty of the Courts of Justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be construed."
4. Another principle which deserves notice is that when affirmative edict is followed by negative or limiting provision and a consequential provision such statute is mandatory' in nature. The following passage from Corpus Juris Secundum is of relevance.
"It is a general rule that a statute which is negative or prohibitory, even though it provides no penalty for non-compliance, or which contains peremptory and exclusive terms, shows a legislative intent to make the provision mandatory, and it has been said that negative words in a grant or powers are never construed as directory but a provision framed in negative language has been construed as merely directory. On the other hand, while the use of affirmative words only is a circumstance to be' considered in determining whether the statute is mandatory or director, an intention that it shall be directory is not conclusively drawn from the absence of negative words, since affirmative words may and often do imply a negative of what is not affirmed. So, affirmative words, if absolute, explicit, and peremptory, showing that no discretion was intended to be given, render the statute mandatory. The rule that an affirmative statute, without any negative expressed or implied, is directory merely and leaves the common law in force has more special reference to statutes giving a new remedy. In the final analysis, the intention of the legislature must control irrespective of the use of affirmative or negative words, where such intention can be otherwise ascertained."
5. The examination of case-law will not be complete without examining the rule laid down in Niaz Muhammad Khan v. Mian Fazal Raqib PLD 1974 SC 134. In this case Niaz Muhammad Khan appellant filed a suit for pre-emption of sale of suit land which had been made through registered deed dated 10-4-1965 in favour of Mian Fazal Raqib/respondent for Rs,29,000. On 9-4-1966, the trial Court under subsection (1) of section 23 of N,-W.F.P. Pre-emption Act, 1950 passed an order/directing the Pre-emptor to deposit in cash Rs,15,000 in Court before 6-5-1966 and furnishing security for remaining Rs,14,000, within three days. The cash amount was deposited by plaintiff on 4-5-1996. On 25-7-1966, the respondent/vendee moved an application to trial Court for rejection of plaint as the plaintiff had failed to comply with the order of Court dated 9-4-1966. This application was rejected by trial Court on, 5-10-1966. Aggrieved by this order, the vendee/respondent tiled a revision petition which was accepted by learned Single Judge on 2-5-1967 on the ground that the Court had no power to extend the time and so holding the above provision as mandatory, rejected the plaint.
Dissatisfied with this decision Niaz Muhammad Khan filed a Civil Appeal No,4 of 1971 which was dismissed by the Supreme Court in following terms:-- "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 facts shall be null and void. To put it differently, if the Act is directory, its disobedience does not entail any invalidity; if the Act is mandatory disobedience entails serious legal consequences amounting to the invalidity of the act done in disobedience to the provision.
' Viewed in this light, and keeping in mind the fact that the provisions in question are embodied in a statute dealing with a right which has been described as predatory or piratical in nature, it would appear that the requirement enjoined by subsections (1) and (4) of section 23 of the Act is mandatory in nature as failure to comply with the same is to be visited by the penal consequence of the rejection of the plaint once it came to the conclusion that the directions of the trial Court in regard to the furnishing of security had not been complied with within the period specified."
(1) Sutlej Cotton Mills Ltd., Okara v. Industrial Court, West Pakistan, Lahore PLD 1966 SC 472;
(2) Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore PLD 1971 SC 61;
(3) Government of the Punjab v. Ijaz Hasan Qureshi PLD 1985 SC 28; and
(4) Jamshed Ahmad Khan v. D.M./A.C., Garden Sub-Division PLD 1987 SC 213.
6. Guided by the above rules, it is quite clear that the section 24 of Punjab Pre-emption Act is mandatory in nature. This section has two parts. The first part i,e, subsection 1 obliges the Court to require the plaintiff to deposit in such Court 1/3rd sale price of property in cash within such period as the Court may fix. This is followed by a proviso which specifically states that the period cannot be extended beyond thirty days of filing of the suit. Then comes subsection (2) which clearly enacts that if plaintiff pre-emptor fails to make a deposit under subsection (1) within the period fixed by Court or withdraw the sum so deposited by him, such suit shall be dismissed. Manifestly, the language of first part is couched in affirmative manner and is followed by a proviso which is prohibitory in nature. It places limitation upon the Court not to extend the time beyond 30 days of filing of the suit. Subsection (2) M this section is consequential in nature. It provides the action to be taken in case of noncompliance of the order passed by Court under subsection (1) and it states that the Court shall dismiss the suit if the plaintiff fails to deposit the 1/3rd sale price within time prescribed by the Court. From the above analysis of section 24 of Act, I am left in no manner of doubt that section 24 is absolute and its noncompliance results into dismissal of pre-emption suit.
It is a common ground between the parties that the petitioners had not complied with the orders of the Court passed under subsection (1) and has chosen to come to this Court for extension of time.
For the above reasons, this Civil Revision is found to be wholly devoid of merit and is accordingly dismissed. Resultantly, the suit filed by the applicant shall stand dismissed. There shall be no order as to costs.