' The plaintiffs' suit for possession of the area in dispute in exercise of the right of pre-emption was dismissed by the learned trial Court on the 2nd of October, 1972 on the ground of bar of limitation.
This judgment and decree was maintained by the learned Appellate Court on the 18th of September 1974.
2. Hence this appeal.
3. The facts are that the sale of the land in dispute was finalised by the attestation of mutation on the 22nd of February 1969. The plaintiffs-appeallants filed a suit on the 21st of February 1970 in the Court of Civil Judge, Alipur. The learned Civil Judge being on tour from 21st February 1970 to the 2nd of March 1970, the plaint was presented before the Reader who took it to the Tehsildar the same day. The suit came up before the Civil Judge for hearing on the 1st of April 1970.
4. The learned Civil Judge held that firstly there was nothing on the file to show that the plaint was presented before the Tehsildar on the 21st of February 1970 in the absence of the learned Civil Judge on tour and secondly the Tehsildar had no jurisdiction to entertain the suit since under section 23 of the Civil Courts Ordinance, 1962 only, the District Judge or the Senior Civil Judge or any other Civil Judge appointed in this behalf were competent to entertain plaint. The learned Judge held that the plaint could be treated to have been presented before the competent Judge only on the 1st of April 1970, but by that time the suit was already barred by limitation.
5. In appeal the learned District Judge held that the plaint had been presented to the Reader on the 21st of February 1970. It was argued before him that after its presentation before the Reader it was presented by him before the Tehsildar and such presentation was valid under Chapter 1-B, para. 7, clause (c) of the High Court Rules and Orders, Volume I, which provides that :- ' The members of the ministerial establishment are strictly forbidden to receive petitions, plaints 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 incharge of his current duties. District Judges should, however, invariably make arrangements for the reception of plaints and petitions, etc., by another officer of a Court when an officer is temporarily absent on leave, tour or otherwise. When there is a single judicial officer at a station such as a Mofassal or outlying Courts, arrangements should be made for the reception of plaints, petitions, documents, etc., by the Tehsildar or the Naib-Tehsildar in consultation with the Deputy Commissioner."
6. The learned District Judge held that this rule had no application view of section 23 of Civil Courts Ordinance, 1962 which provides that in event of the death, suspension or temporary absence of any Civil Judge District Judge may empower any other Civil Judge of the District to the duties of the Judge of the vacated Civil Court, either at the place of such Court or of his own Court. In view of this it was held that the plaint should have been presented in the absence of the learned Civil Judge, to the. District Judge or any other Civil Judge empowered by him to receive the same.
7. The learned counsel for the appellants relied upon Order No, 46 dated 17-2-1966, by which the Civil Judge, Alipur appointed his Reader under Order IV, rule 1, C. P. C. As an officer to entertain the presentation of plaints. This order reads as follows :- "The reader or in case of his absence from the Headquarter the Ahlmad of this Court, is hereby appointed, under Order IV, rule 1, C. P. C. Read, with section 151, C. P. C. As an officer to entertain the presentation of plaints and applications etc. Presentable to this Court during the absence of the Presiding Officer from the Headquarter on any account till further order and subject to the following conditions:-
(a) A register of presentation shall be maintained after being paged and certified by this Court in which all plaints and applications so presented shall be entered forthwith.
(b) On presentation, a receipt of such presentation with such particulars as are necessary to describe it, shall invariably be issued.
(c) The register of presentation shall be produced daily, during the working hours, before S. T. O., Alipur for attestation of its entries "
' He also referred to a letter dated 27-5-1966 by the District & Sessions Judge, Multan to the Deputy Commissioner, Muzaffargarh for authorising the Tehsildar or Naib-Tehsildar, Alipur to receive plaints and applications during the absence of the Civil Judge, Alipur. This letter was endorsed to the Civil Judge, Alipur as well as to the Tehsildar, Alipur, for information. It was urged that in view of the provisions of Order IV, rule 1, C. P. C. And this Office Order read with the letter of the learned District Judge, the plaints could have been received by the Reader and endorsed by the Tehsildar.
The presentation of plaint was, therefore, rightly made.
8. The genuineness of these documents was denied by the learned counsel for the respondent. The learned Civil Judge, Alipur was therefore, required to send copies of these documents which have been received in Court. The authenticity of office Order 46 and the letter of the District Judge is now beyond doubt. In view of this the learned counsel for the respondent relied upon section 23 of the Civil Courts Ordinance, 1962.
9. There are two provisions about temporary vacancy of Judges, ones in section 21 which relates to a temporary vacancy in the office of the District Judge and the other in section 23 which relates to such vacancy in the office of the Civil Judge. Section 21 provides that in the event of death of a District Judge or his being prevented from performing his duties by illness or other cause, the Additional District Judge, if any, or in the absence of the additional District Judge from the District, the senior most of the Civil Judges the Headquarters, shall assume charge of the district without interruption s ordinary jurisdiction, and while so in charge shall perform the duties of strict Judge with respect to the filing of suits and appeals, receiving , execution of processes and the like.
Section 23, as referred to' mes into force in the event of death, suspension or temporary absence 1 Judge. In that case the District Judge may empower any other f the district to perform duties of the Judge of the vacated civil.
10. It is clear from the words "vacated civil Courts" that this section would apply only to a case where the Civil Judge concerned vacates the office and is completely separated from it. This interpretation finds support from the contingencies for applicability of section 23 provided in that section i,e, death, suspension or temporary absence of the Civil Judge. In my view the words 'temporary absence' should be construed ejusdem generis with the contingencies of death or suspension described earlier. Death involves complete severance from office while suspension entails temporary separation. 'Temporary absence' must therefore be construed as temporary absence from office or temporary separation from it on account of absence. The same result would follow if the rule of analogy with what is specified immediately previously, applied by the Privy Council in Chhajju Ram v. Neki (1), and Bisheshwar v. Parath Nath (2) is applied.
11. The analogous provisions of section 21 corroborate this contention. That section is attracted in case of either death of the District Judge or in the event of his being prevented from performing the duties of his office, one of the two contingencies furnishing example of complete severance from office and the other of temporary separation from it.
12. I am of the view that section 23 of the Ordinance is not applicable to a case where the Civil Judge does not vacate the office but continues to perform it, though in a different part of the same District. In view of this interpretation it is unnecessary to decide whether section 23 applies to presentation of plaints about which there is a specific provision in Order IV, rule 1, C. P. C.
13. The proper provision for presentation of plaint in these circumstances is Order 1V, rule 1, which provides that "every suit shall be instituted be presenting a plaint to the Court or such officer as it appoints in this behalf. According to this provision, the plaint can be presented even to an office appointed by the Court for this purpose. The Court can thus appoint a Ministerial Officer of its own Court for accepting the plaint. There are several authorities under Order IV, rule 1 to this effect.
Receiver of Nidadavok and Medur v. K. Suraparazu and others (3), Radhakrishna Aiyar and others v.
R. Swaminatha Aiyar (4), Sewa Singh v. Tara Chand and another (5), Kalyan Singh v. Baldev Singh and another (6), Nazar Muhammad v. Murad Ali and others (7), Shamas-uz-Zaman and others v.
Abdul Ghafoor (8) and Farid Sons Limited v. The Federation of Pakistan (9).
14. This is in virtue of Order IV, rule 1, C. P. C. That Order XLVI dated 17th of February 1966 was issued by the Civil Judge, Alipur, by which he appointed his reader or in his absence Ahlmad of his Court, as an officer to entertain the plaints and applications during the absence of the Presiding Officer from the Headquarters on any account. Acting under paragraph 7-C of Chapter 1-B of the High Court Rules and Orders, the District Judge made the necessary arrangement for reception of the plaint, petitions documents etc. By the Tehsildar or the Naib-Tehsildar.
15. The plaint was therefore presented on the 21st of February 1970 in accordance with law to proper authorities. The suit was, therefore, within time.
' I allow this appeal without any order as to costs, set aside the judgment and decree of the learned District Judge, reverse his findings on Issues Nos. 1 and 3 and remand the case to him for decision of the appellants appeal on other issues according to law.