2017 PLP 144 (CLCN)

CH. MUHAMMAD MASOOD JAHANGIR, J.

This appeal basically requires to draw a difference between the day of institution of the suit and filing of the same.

2. Admittedly, the appellant in summer vacation, on 16-8-2014 presented the plaint along with an application for grant of temporary injunction before the Senior Civil Judge/receiving officer, who while receiving the same on the said day endorsed/marked the suit file to a specific judicial officer/court for 01-09-2014 and on the said day the assignee Court directed the appellant to deposit the Zar-e-Soem within 30 days, which was deposited on 22.9.2014 within 30 days of the day of making of said order, but the same was beyond 30 days from the day when the plaint was presented before the Senior Civil Judge/receiving officer. The learned trial court after receiving an application for rejection of the plaint on behalf of respondent No.1, rejected the plaint of the suit of the appellant vide impugned order and decree dated 11-11-2015 while considering the day of presentation as day of filing of the suit. Hence the instant appeal.

3. Arguments heard and record scanned.

4. Before dilating upon merits of the case, we would like to unfold the question referred in para 1 (supra) mainly involved in this case. Volume 1, Part-B of the Rules and Orders of Lahore High Court, Lahore, deals with reception of plaint by a Judge/officer to whom powers in this regard are delegated for its endorsement/assignment to a court for its trial. The review of said part of the Rules ibid makes it clear that the receiving/distributing officer only deals with plaint of the suit for its endorsement/assignment to a specific court and at the end of day such officer is also obliged to exhibit a list in his court while displaying the cases, so distributed. The distributing officer has no other function at his end to deal with the suit in any manner unless and until the same is assigned by him to himself. As per Order IV, rule 1 of the Civil Procedure Code, 1908, every suit shall be deemed to be instituted by presenting a plaint to the court or such officer as it appoints in this behalf, which makes it vivid that in fact day of presentation is the day of institution of the suit.

5. It is worth-mentioning that phrase "of the filing of the suit" is nowhere available in the Rules and Orders of this Court as well as Code of Civil Procedure, 1908, rather the said terminology is deployed in section 24 of the Punjab Pre- emption Act, 1991. As we are dealing with a suit filed under special enactment/Punjab Pre-emption Act, 1991, therefore, the purpose and use of aforesaid phrase is tried to be gathered from the said Act. The bare reading of section 24 of the Punjab Pre emption Act, 1991 will be advantageous to conclude that day of institution of the plaint in fact is not the day of filing of the suit and for ready reference the said provision is reproduced hereunder:-

24. Plaintiff to deposit sale price of the property.

(1) In every suit for pre-emption, the Court shall require the plaintiff to deposit in such Court one-third of the sale price of the property in cash within such period as the Court may fix: Provided that such period shall not extend beyond thirty days of the filing of the suit: Provided that if no sale price is mentioned in the sale deed or in the mutation, or the price so mentioned appears to be inflated, the Court shall require deposit of one-third of the probable value of the property. (2) Where the plaintiff fails to make a deposit under subsection (1) within the period fixed by the Court, or withdraws the sum so deposited by him, his suit shall be dismissed. (3) Every sum deposited under sub section (1) shall be available for the discharge of costs. (4) The probable value fixed under sub section (1) shall not affect the final determination of the price payable by the pre- emptor. As per subsection (1) supra, it is imperative for the court to require the pre-emptor to deposit Zar-e-Soem in cash within such period fixed by it. The same cannot be required by the Senior Civil Judge before whom the plaint is instituted for its endorsement/marking, who only acts as post office and can only be required by a court, which has to take cognizance of the suit for its further progress. The intention of the Legislature in using the phrase "of the filing of the suit" in the relevant provision has its own wisdom and the following example may also be helpful to draw a distinction between the day of institution of the suit and its filing:- i) In case, a suit is instituted before the Senior Civil Judge for its marking, who marks the same to a specific court for the same day, but during the process of transmission, the file is genuinely lost or misplaced and that is traced after elapse of 30 days, in such scenario whether day of institution of the suit to said authority would be considered the day of filing of the suit, the answer would be in negative: or ii) A suit is instituted on the first day of summer vacation i.e. first of August and the receiving court marked the same immediately after the vacation for 1st of September, then before any further proceedings on the said suit the period of 30 days must have been elapsed without any fault on the part of the pre -emptor and in such situation the day of institution cannot be made applicable for invoking penal consequences of section 24 ibid. So we are clear that the draftsman of the legislature had intentionally used the phrase "of the filing of the suit", which has its independent intent and scope and its introduction in the provision ibid is aimful, which has made it clear that filing of the suit is the day, when the assignee court after its due entry in the relevant Register takes cognizance thereof while passing the first order in further progress of the suit.

6. Moreover, the first proviso of section 24 of the Act ibid requires that the court is not vested with the powers to extend the time beyond 30 days of filing of the suit, whereas sub section (2) thereof prescribes that where pre-emptor fails to make a deposit under subsection (1) ibid within the period fixed by the court, his suit shall be dismissed. The inclusion of subsection (2) after the first proviso of subsection (1) will be construed to be purposeful, which has safeguarded the pre -emptor from any omission on part of the trial court and a suit for pre-emption can only be dismissed, if the pre-emptor fails to deposit Zar-e-Soem within the period required by the court. This was the philosophy of the legislature behind the latter clause. To comprehend the intention of the legislature, the provision of subsection (2) will have to be read with the aforementioned provision because it is settled rule of interpretation that all parts of a provision are to be read together and efforts must be made to harmonize the seeming inconsistent provision. It is also well established and known rule that if two provisions are found to be militant/repugnant with each other, then last one or latter will have to prevail.

7. Resuming to facts of the case, admittedly, the plaint along with stay application was instituted in summer vacation on 14-8-2014 to the Senior Civil Judge, who marked the suit to a specific court for 01-9-2014. No doubt, the stay application being affair of emergent nature was taken up on 14-8-2014, but neither the suit was marked for the said day nor the Presiding Officer took any cognizance thereof on that day and absolutely he could not do so on the said day as it was specifically marked for 01-9-2014. Subsequently, on 01-9-2014, when the suit file was presented before the learned trial court, the same was duly registered and appellant was specifically directed to deposit 1/3rd amount of the sale price within 30 days, which was complied with by the appellant while making its deposit on 22-9-2014.

8. While referring to the judgments reported as Hafiz Muhammad Ramzan v. Muhammad Bakhsh (PLD 2012 Supreme Court 764), Hasnain Nawaz Khan v. Ghulam Akbar and another (PLD 2013 Supreme Court 489) and Raja v. Tanveer Riaz and others (PLD 2014 Supreme Court 460), the contention of learned counsel for respondent No.1 that the trial court rightly passed the impugned order and decree while concluding that Zar-e-Soem was deposited beyond the period of 30 days of filing of the suit is not correct. The careful study of the said dictum has altogether different bearing and those run on different lines. The point involved in suit in hand was neither thrashed in the said dicta nor it was concluded that day of institution of the suit is the day of filing of the same. Rather the main theme of the said dicta is that a pre-emptor is required to deposit 1/3rd of the sale price within 30 days of the filing of the suit even if that is not required by the trial court. But in the case in hand, the situation is altogether different where on the first day when the cognizance of the suit was taken by the learned trial court on 01.9.2014, it required the appellant to deposit the said amount within 30 days. On that day the learned trial court was aware of the difference between the day of institution and filing of the suit and if he was not clear of the said difference, then he could have passed the order that Zar-e -Soem be deposited within 30 days of the institution of suit i.e. within 30 days starting from 16.08.2014 and in that eventuality the appellant might have deposited the said amount on or before 14-9-2014, but it was not acted so, which has left nothing except to conclude that appellant was not at any fault for-depositing the amount as required by the learned trial court vide its order dated 01.09.2014 and when the compliance of the order passed by the learned trial court was made good in its letter and spirit, then the appellant could neither be blamed nor could he be held to be at fault because it is the legal obligation of the court to facilitate the litigants approaching the courts conveniently and on account of any omission on the part of court required by the law in the prescribed manner, the litigant cannot be penalized. The apex court has also clinched the said question in the judgment reported as Muhammad Ejaz and others v. Muhammad Shafi through L.Rs. (2016 SCMR 834) while observing that there is a well-known maxim "Actus Curiae Neminem Gravabit" (an act of the court shall prejudice no man), thus, where any court is found to have not complied with the mandatory provision of law or omitted to pass an order, required by law in the prescribed manner then, the litigants/parties cannot be taxed, much less penalized for the act or omission of the court. On the touchstone of the above dicta, the appellant could not be taxed for the omission on the part of the court.

9. On the touchstone of the above discussion, there was no occasion or justification whatsoever for dismissal of the suit or rejection of the plaint as the terms of the penalty clause/sub section (2) ibid do not stand fulfilled. The learned trial court has fallen in error to non-suit the appellant/pre-emptor without any fault on his part, as such impugned order and decree is found to be illegal, unlawful and without jurisdiction, which cannot be sustained in the eye of law.

10. Resultantly, this appeal is allowed, the impugned order and decree dated 11.11.2015 passed by the learned trial court is set aside and the application filed under Order VII, rule 11 of the Civil Procedure Code, 1908 filed by respondent No.1/defendant is dismissed. The suit filed by the appellant/pre -emptor will be deemed to be pending before the learned trial court and dealt with on merit. The parties are directed to appear before the learned District Judge, Lahore on 01.6.2016, who will entrust the main suit to the court of competent jurisdiction for further proceedings. ZC/M-138/L Appeal allowed.