2009 PLP 369 (CLC)

HAMID FAROOQ DURRANI, J.

The petitioner is aggrieved of judgment passed by learned Additional District Judge-VIII, Peshawar in Civil Revision No.17 of 2007 whereby the findings of learned trial Court regarding application for -rejection of plaint filed by the respondents, were reversed. The learned revisional Court on acceptance of the revision petition allowed the said application filed under Order VII, rule 11, C.P.C. and was pleased to reject the plaint of petitioner.

2. Factually, a sale transaction regarding shop/cabin situated in Bazar Ramdas Peshawar City was finalized between the respondents and the vendor through deed No.3698 registered on 21-10-2006. Admittedly, the suit for possession through exercise of right of pre-emption was brought thereupon by the petitioner on 28-3-2007. During the proceedings of the suit an application was submitted by the respondents for rejection of plaint on the ground that the suit was filed much after the time prescribed for the purpose. After dismissal of said application by learned trial Court a revision was filed which was allowed by learned revisional Court on 24-10-2007 placing reliance on judgments reported as 2000 SCMR 1305, 2004 SCMR 1941 and 2004 CLC 284 wherein it was, inter alia, held that the provisions of section 32 of N.-W.F.P. Pre-emption Act, 1987 were directory in nature as those were not followed by any penal consequences in case of non-compliance. In such view of the matter, even in case of non-issuance of a notice by the concerned authority, the period of limitation for filing a suit for pre-emption, as provided in section 31 of the Act (ibid), was to commence from the date of registration of sale-deed and not from the knowledge of the plaintiff.

3. Learned counsel for the petitioner, while arguing instant petition, referred to the judgments reported as 2001 SCMR 1591, 2004 SCMR 535 and attempted to argue that the transaction in dispute was deliberately and with mala fide intent kept secret from the plaintiff-petitioner. No notice of registration of impugned sale was given as per requirement of law, therefore, the period of limitation was to run from the date of knowledge of the petitioner, in the circumstances of the case. Keeping in view the said fact the suit was filed well within time i.e. on 28-3-2007 and the plaint was not to be rejected under Order VII, rule 11, C.P.C. on account of delay.

4. We have gone through the judgments referred hereinabove, but without discussing the applicability of the said judgments upon the facts and circumstances of the matter in hand, observe that admittedly the petitioner did not mention the time of performance of Talb-i-Muwathibat in her plaint. The relevant para.3, though speaks of date and place for the said purpose. In the circumstances, we consider it appropriate not to extend interference in the impugned judgment while seeking guidance from PLD 2007 SC

302. Through the referred judgment it has been laid down by a learned Larger Bench of the apex Court that a plaint, wherein time, date and place of performance of Talb-i-Muwathibat is not indicated, shall be fatal for a suit seeking enforcement of right of pre-emption. The said lacuna in the plaint was frankly conceded by learned counsel when confronted with. The writ petition in hand, therefore, does not merit admission as a sequel to the above. Resultantly, it is dismissed in limine. H.B.T./218/P Petition dismissed.