2009 PLP 2227 (YLR)

SYED YAHYA ZAHID GILANI, J.

Aminuddin instituted pre-emption suit challenging an ostensible gift transaction with a prayer that it may be declared to be a sale. The gift deed was registered on 5-12-2005. The suit was instituted on 13-9-2006. The defendant applied or rejection of plaint on the ground that the suit is time-barred. Ultimately, the application was accepted by the trial Court and the plaint was rejected on 17-1-2008. Thereafter the appeal filed by the pre-emptor was also dismissed on 26-3-2009. Hence, this revision petition.

2. Addressing the Court at motion stage, learned counsel for the petitioner submitted that although the registered sale-deed was attested on .5-12-2005, but the mutation was subsequently attested on 25-7-2006. Hence, the suit filed on 13-9-2006 was within time because the registration of the gift deed was concealed. He further argued that notice of the registered deed was not issued under section 32 of the N.-W.F.P Pre-emption Act; 1987 and for that reason the plaint could not be rejected. In this respect, he placed reliance on the case of Muhammad Shah v. Additional District Judge, Kohat decided by Honourable apex Court, which is reported in 2004 SCMR 535.

3. The interdependency of sections 31 and 32 of the N.-W.F.P Pre-emption Act, 1987 has been thoroughly discussed by Honourable apex Court in the case of Maulana Noor ul Haq v. Ibrahim Khalil 2000 SCMR 1305. It has been categorically decided that the provisions of section 32 of the Act are directory in nature for want of a penal clause and cannot in any manner override or dilute the provisions of section 31 of the Act which are mandatory by all standards. Hence, plaint can be rejected under Order VII rule 11, C.P.C. if the suit is time-barred keeping in view of the limitations prescribed in section 31 of the Act. In Muhammad Shah's case, referred by learned counsel for the petitioner, the Honourable apex Court left the matter pertaining to .non-issuance of notice under section 32 of the Act (ibid) to be decided by the trial Court after framing an issue on this point but subsequent to it, the judgment in the case of Muhammad Shah was discussed by the Honourable apex Court in the case of Reham Badshah v. Zalia Khan 2004 SCMR 1941 and Muhammad Shah's case has been interpreted and explained as under:-- "In Muhammad Shah's case 2004 SCMR 535, this Court had left undecided the question of inter-dependence of sections 31 and 32 of the Act and had observed that it be left to be decided by the trial Court after framing issues and recording evidence. Meaning thereby, that the real question was left undecided despite the fact that this Court in Noorul Haq's case (supra) had already given a verdict thereon. Had some different view of the matter been taken by the larger Bench in Muhammad Shah's case (supra) it might have changed the interpretation but as no decision on the crucial point was finally taken that adopted in Noorul Haq's case would hold the field. For reasons given in the earlier part of the judgment, we also find ourselves in agreement with the view taken in Noorul Haq's case (supra) and hold that the provisions of section 31 of the Act, having no nexus with the provisions of section 32 of the Act, the instant suit is barred by time.''

4. Consequently, in view of tie interpretation after direct focus and analysis of sections 31 and 32 of the Act (ibid) in Maulana Noorul Haq's case and Reham Badshah's case and the interpretation of the case of Muhammad Shah in Reham Badshah's case the legal position which emerges is that the provision of section 31 of the N.-W.F.P Pre-emption Act which is mandatory in nature is independent of section 32 of the Act (ibid) which is directory in nature and section 32 of the Act cannot operate to change the clear and visible effect of section 31 of the Act.

5. Resultantly, since in the pre-emption suit in hand the impugned transaction was carried out through a registered deed dated 5-12-2005, the pre-emption suit should have been instituted within 120 days from the date of registration of the deed, in view of section 31(a) of the Act, and it having been instituted on 13-9-2006, is badly barred by time. Hence, the plaint was rightly rejected by both the Courts below.

6. The revision petition is, therefore, dismissed in limine. H.B.T./164/P Petition dismissed.