IFTIKHAR MUHAMMAD CHAUDHRY, J.- Precisely stating facts of the case are that appellant filed a suit for possession through right of preemption against respondents. During pendency of the suit respondents filed an application under-Order VII, Rule 11, CPC with the averments that the suit being barred by time may be dismissed-as the sale-deed of the property, the subject-matter of proceedings, was executed on 8.2.1995 whereas the suit has been filed on 24.10.1995.
2. The appellants contended in the rejoinder that suit is within time because it has been filed on acquiring the knowledge of execution of sale- deed.
3. Learned trial Court dismissed the suit dn 23rd May, 1996. Against this order appellant filed appeal which was dismissed by Additional District Judge, Lahore vide order dated 27.2.1997- The appellant filed Revision Petition before Lahore High Court, Lahore against the orders adversely operating against him. Revision was also dismissed vide impugned order dated 4.12.1997. As such leave to appeal was granted on 18th April, 1999 to examine the provisions of sections 30 and 31 of Punjab Pre-emption Act, 1991 (hereinafter referred to as the "Act") because it was contended on behalf of appellant that respondents had kept the factum of sale-deed secret for which he had no notice and as nothing was mentioned in the written statement to indicate whether any notice had been given by the Registering Officer after registering the deed, therefore, in the circumstances the limitation would start running from the date when appellant came to know regarding registration of sale-deed and without recording evidence as regards notice which is to be given to the public under section 31 of the Act by the registering officer, the plaint of the petitioner could not be rejected under Order VII, Rule 11, CPC.
4. Learned counsel for appellant emphasized with vehemence that section 30(1) of the Act has provided period of 4 months for filing of the suit from the date of registration of the sale-deed subject to notice by the Registrar as envisaged under section 3l of the Act. Since in the instant case the registration officer has not given notice,therefore, time for filing of suit shall commence from the date of acquiring knowledge by appellant. Reliance was placed by him on 1995 SCM R 1510.
5. Learned counsel for the respondents contended that this Court in the judgment of Maulana Nur- ul-Haq alias Ibrahim Khalil (2000 SCM R 1305) has held that the provisions of section 31 of the North-West Frontier Province Pre-emption Act (X of 1987) is directory in nature, therefore, the same conclusion be drawn in the instant case as well and non-issuing of notice under section 31(1) of Act may not be treated mandatory in nature, therefore, the impugned order be maintained.
6. We have heard learned counsel for the parties and have also carefully considered judgments cited from both the sides. It may be noted that existing Punjab Pre-emption Act, 1991 and NWFP Pre- emption Act, have been promulgated in pursuance of judgment in the case of Government of N.W.F.P, through Secretary, Law Department Vs. Malik Said Komal Shah (PLD 1986 S.C. 360). In this case Shariat Appellate Bench of this Court in exercise of jurisdiction under Article 203-D of the Constitution of Islamic Republic of Pakistan examined the. Punjab Pre-emption Act (I of 1913) and North-West Frontier Province Pre-emption Act (XIV of 1950) to find out whether the Acts are in accordance with the Injunctions of Islam or otherwise. Thus while elaborating the concept of pre- emption, as well as the time tor its enforcement it was observed as under:-- [(URDU TEXT)] In the concluding para of the judgment while summing up discussion on pre-emption laws with regard to limitation the Court opined as-follows;-'
[(URDU TEXT)] It so happened that in view of above recommendations Punjab Pre-emption Act has been re- enacted wherein sections 30 and 31 relating to limitation and notice to the public in respect of transaction were added in the statute. As per section 30 of the Act period of limitation for a suit to enforce right of pre-emption has been fixed to be four months from the date of registration of the sale-deed whereas under section 31 it was provided that the officer registering the sale-deed or attesting the mutation of "a sale shall within to weeks of the registration or attestation, as the case may be, give public notice in respect of such publication or attestation. Its sub-section (2) has provided mode for giving notice, according to which the notice shall be deemed to have been sufficiently given if it is displayed on the main entrance of a Mosque or any other public place of the village or place where the property is situated. As far as sub-section (3) is concerned it prescribes procedure relating to recovery of expenditure for issuing the notice. At this stage we have to keep in mind that under Article 10 of the Limitation Act period to enforce a right of pre- emption is one year with explanation as to when it will begin to run. However, in this Article there is no mention that the time will start running from issuance of notice to general public. Similarly under Part XI of Registration Act (XVI of 1908) which deals with the duties and powers of registering officer there is no provision creating an obligation upon the registering officer to issue notice to the general public with a view to bring to their knowledge that a sale- deed has been registered.
Therefore Section 31 of the Act promulgated on 6th April, 1991 an additional duty has been imposed upon the registering authority to issue notice regarding registration of sale-deed in terms of section 31(1) and (2) of the Act. We have noticed that under sub-section (2) of section 31 of Punjab Pre-emption Act the legislature has used the word "shall" i.e. Compliance of which has been made compulsory under the command of law because this provision has been enacted for the benefit of general public and as per its natural corollary in general public a pre-emptor will also be included.
The object appears to be to restrain the vendor and vendees to conceal sale of a pre-emptiable property in order to deprive a pre-emptor from enforcing right of pre-emption in respect of sold property.
7. As it has been observed hereinabove that the Act has been enacted to make Pre-emption Law in conformity with the Islamic Injunction as per the judgment cited hereinabove, thus the question would be as to whether after registration of a sale-deed whether it is mandatory or directory for the Registration Officer to issue notice to general public. Undoubtedly in sub-section (2) of section 31 of the Act word "shall'' has been used which in ordinary sense is interpreted as command to do particular thing in the manner prescribed therein unless by reading the other part of the law different intention is shown.. However, to determine as to whether sub-section (2) of section 31 is mandatory or directory in its nature we have to make reference to the principles of interpretation of statute noted in the work done by different commentators. First of all in this behalf reference may be made to Interpretation of Law by Crawford. Relevant para from the heading "Mandatory and Directory Statute" is reproduced hereinbelow:-- "So, a mandatory statute may be defined as one whose provisions or requirements, if not complied with, will render the proceedings to which it relates illegal and void, while a directory statute is one where non-compliance will not invalidate * the proceedings to which it relates."
Similarly reference may be made to Corpus Juris Secundum, Vol. 59 at pages 1078 and 1079 as under:-- "As a general proposition, the rule with respect to statutory directions to individuals is the opposite of that which obtains with respect of. Public officers. when a statute directs things to be done by a private person within a specified time and makes his rights dependent on proper performance thereof, unless the failure to perform in time may injure the public or individuals, the statute is mandatory. When an individual, is the person not complying, he has no grounds for complaint.
Under statute of procedure, failure to complete required steps within, the time specified is fatal to the case".
This Court in the case of Niaz Muhammad Khan Vs. Mian Fazal Raqib (PLD 1974 S.C. 134) while examining directory and mandatory provision of statute opined as under;- "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."
Later on in the case of Dr. Sher Afghan is. Aamar Hayat Khan and to others (1987 S.C.M.R. 1987) following principle was enunciated:- "The case of each enactment has to be construed in the light of the general objection intended to be secured, the subject-matter and the importance of the provision and then it can be decided whether the enactment is imperative or only directory."
Testing the provision of section 31(2) of the Act on the touchstone of the above principles we are inclined to hold that as this section has been incorporated in Act, with a view that a pre-emptor may not lose right of pre-emption if otherwise available to him merely for the reason that he was not informed about the sale transaction, therefore, an additional duty has been imposed upon the Registrar to make such transaction public by adopting the procedure laid down in sub-section (2) of section 31 of the Act by using the word "shall" which represent to the command of law, therefore, the registering authority is bound to complete the registration of document and make it public in the prescribed manner otherwise despite of registration of sale-deed if provisions of sub-section
(2) of section 31 of the Act are not complied with it would be deemed that general public including the pre-emptor had no knowledge about the registration of the document and time of four months for filing suit for pre-emption will run from the knowledge of pre-emptor. Thus we are of the opinion and for the above discussion and the background of the legislation narrated hereinabove the provisions of sub-section (2) of section 31 of the Act are mandatory in nature. In addition to it both the sections i.e. Sections 30 and 31 are dependent upon each other for the obvious reason that in the former section period for enforcement of right pre-emption within four months from registration of sale-deed is prescribed whereas under latter section the registering officer is under legal obligation to issue notice to general public about registration of the sale-deed so that any person may claim his right of pre-emption. Thus both the sections being mandatory in nature have to be read together in conjunction of each other. .
8. Now turning towards the case in had it is important to reproduce hereinbelow para 5 of the plaint:- "5. That the plaintiff came to know about the sale of the disputed land in favour of the defendant on 10.9.1995 and he at once showed his will to pre-empt the sale of the land in dispute. This was done in the presence of the respectables of the village and vendor and conveyed to the defendants Talb-e- Muawathibat."
Admittedly appellant Has not pleaded before Trial Court that the registration officer failed to comply with provisions of section 31(2) of the Act as ho notice within the specified time was given after registration of the sale-deed dated 8.2.1995. Learned counsel for appellant stated that in the reply of the application filed by respondent under Order VII, Rule 11, CPC appellant had complained about no-compliance of provisions of section 31(2) of the Punjab Pre-emption Act. 1h our opinion the reply so submitted by the appellant cannot be considered as part of the "plaint because the plea of non-service of notice upon the appellant in the reply of application had only been taken for the first time in defence to seek rejection of application. Otherwise in the plaint the plea for not filing the suit within four months from the registration of sale-deed was not non-compliance of section 31(2) of the Act by the Registering Officer. Because while examining an application moved by the defendant under Order VII, 'Rule 6, CPC except the contents of the plaint reference to no other document has to be made. Thus- under the circumstances Court had rightly rejected the plea of appellant raised for the first time in the reply of application. In addition to it following the judgment in the case of Muhammad Ramzan,(ibid) we are inclined to hold that the appellant had knowledge about the factum of sale of the subject-matter of the suit but he did approach the Court for-the relief within time, therefore, no interference in the impugned judgment is called for.
9. For the foregoing reasons- and subject to above observations relating to interpretation of sections 30 and 31 of the Act we see no merit in the appeal which is dismissed, leaving the parties to bear their on costs.
HAMID ALI MIRZA, J.- I have had the benefit of reading the judgment proposed to be delivered by my learned brother, Iftikhar Muhammad Chaudhry, J. I entirely agree with the conclusions reached therein except the finding and the reasons given in support thereof at page 7 of the judgment:-- "...and time of four months for filing suit for pre-emption will run from the knowledge of the pre- emptor".
To which I regret my inability to agree in view of the following reasons.
2. Article 129 of the Qanun-e-Shahadat Order reads:-- "The Court may presume the existence Of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of-the particular case."
Illustration (e) of the same Article runs:-- "That judicial and official acts have been regularly performed."
3. The above reproduced illustration would show complete application of maxim "Omnia prae sumuntur rite esse acta" all facts are presumed to have been rightly and regularly done. The said presumption is chiefly applied to judicial and official acts, as the basis for this rule is, every person does his duty unless contrary is proved because it is presumed that all things are rightly done and it would be presumed that formal requisites were also performed. Reference may be made to a Full Bench decision of this Court in Muhammad Ramzan v. Lal Khan (1995 SCM R 1510 = NLR 1995-SCJ 703). In paragraph 6 of the judgment, Irshad Hasan Khan, J speaking for the Bench has observed:-- "Section 31(1) of the Act, provides that it is incumbent upon the officer registering the sale-deed or attesting the mutation of ale to give public notice in respect of such Registration or attestation within to weeks as the case may be. Subsection (2) thereof envisages that the notice given under sub-section (1) shall be deemed to have been sufficiently given if it is displayed on the main entrance of a mosque and on any other public place of village or the place where the property is situated. Presumption of regularity is attached to all official acts. It is not the case of the appellant that no notice was ever served by the registering authority nor evidence contrary to that has been brought on record. It would, therefore, be presumed that the appellant had due knowledge of the attestation of the mutation of sale-of the disputed land within to weeks from the issuance of notice under section 31 of the Act."
Presumption holds the field in the absence of evidence. In view of the said provisions of Qanun-e- Shahadat, regard should be attached to the presumption in favour of due performance of official acts. It is true that the said presumption is a rebuttable presumption which could be rebutted by adduction of evidence or by attending refutable circumstances. There could be no presumption in favour of an -irregularity and a party alleging irregularity would have to prove it by cogent evidence. ...
4. Section 30 of the Punjab Pre-emption Act, .1991 (hereinafter called as the said Act) reads as follows:-- "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 mutation; or
(d) of knowledge by the pre-emptor, if the sale is not covered under paragraph (a) or paragraph
(b) or paragraph (c)."
Section 3 I of the same Act reads as follows:-- Notice. (1) The officer registering the sale-deed or attesting the mutation of a sale shall, within to weeks of the registration or attestation, as the case may be, give public notice in respect of such registration or attestation.
(2) The notice under sub-section (1) shall be deemed to have, been sufficiently given if it is- displayed on the main entrance of a mosque and on any other public place of the village or place where the property is situated.
(3) The charges for the notice under sub-section (2) shall be recovered from the vendee by the Officer registering the sale or attesting the mutation, as the case may be, at the time of such registration or attestation." ,
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 date 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) from the date on which the vendee takes physical possession of the property if the sale is made otherwise than through a registered sale-deed or mutation; or (d) from the date 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 pre-emption 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 through registration of sale-deed, therefore, as provided under section 30 of the said Act suit to enforce the right of pre- emption shall be four months from the date of registration of the sale-deed. It may be observed that there could not be concealment about the sale from the public or the pre-emptor 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) of 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 provisions of section 30 whereunder 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 SCM R 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 words "shall" u$ed in section 31 of the said Act is directory in nature. Reference may be made to the case of Niaz Muhammad Khan versus Mian Fazal Raqib (PLD 1974 SC 134 at 138) 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 enactments shall be considered directory 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 the following them, the facts 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 Faruq, J., speaking for the Bench, in paragraph 7 of the judgment, has observed:-- "The next point 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 pre-emptor is misconceived. Such a provision is neither contained in section 31 of the Act nor can be read into it in view of settled law.
That Court cannot supply 'casus omissus'. A comparative study of sections 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 pre-emption suit in respect of sale transaction effected through a registered sale-deed and is meant to provide an extra source of knowledge for making 'Talb-i- Muwathibat' and an alternate time frame for making Talb-e- Ishahad in accordance with sub-section (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 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 js 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 facts shall be null and void. In Major Shujat Ali v. Mst.
Surrya Begum (PLD 1978 SC (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 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."
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 the appeallant/plantiff has stated:- "That the cause of action arose in favour of the plaintiff and against the defendants when the Sale- Deed of the above land was registered videDastaveez No. 1329 Bahi Jild 2051 dated 8.2.1995 before the Sub-Registrar, Sadar, Lahore. Secondly, when the defendants submitted ar. Application under Order I, Rule 10 of the CPC for impleading themselves as a 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.