2008 PLP 1556 (CLC)

ZIA-UD-DIN KHATTAK, J.

Khuda Bakhsh, respondent No.2 herein sold certain land vide registered Sale-deed No.285 dated 7-2-2006 to Matloob Ahmad, respondent No.1 herein for an ostensible price of Rs.4,00,000 (Rupees four hundred thousand). A suit for possession of the property through pre-emption was filed by Malik Mirza, petitioner herein on 5-9-2006 with the allegation that the vendor had sold the same secretly and had not spelt out of his intention to sell through a notice, he was possessed of a superior right of pre-emption, that the sale price mentioned in the sale-deed was fancy and had been inserted therein to ward off pre-emption and the requisite Talbs were made by him in accordance with law.

2. The vendee instead of filing a written statement submitted an application for rejection of the plain under Order VII, rule 11, C.P.C. on the ground that the suit was barred by limitation having been filed beyond the prescribed period of 120 days. The application was allowed by the learned trial Court vide order dated 19-9-2007 and the plaint was rejected under Order VII Rule 11(d) C.P.C. The order was upheld by the learned Additional District Judge-VI, D.I. Khan vide judgment dated 2-4-2008. Hence this revision.

3. The learned counsel for the petitioner contended that when a sale-deed is registered but the Registrar concerned does not give public notice in respect of such registration as envisaged by section 32 of the N.-W.F.P. Pre-emption Act, 1987, (which is not redundant), then the period is to be computed from the date of knowledge of the pre-emptor and not from the date of registration of the sale-deed as provided by section 31 ibid. That the petitioner had got knowledge of the impugned sale on .27-8-2006 and filed the suit on 5-9-2006 after making the requisite Talbs. The suit having been filed within 120 days of knowledge of the petitioner was well within time.

4. I have heard learned counsel for the petitioner and perused the record appended with the petition.

5. The only question falling for determination in this case is a legal question namely whether the provision with regard to issuance of public notice by the Registrar contained in section 32 of the N.-W.F.P. Pre-emption Act, 1987 has nexus with the period of limitation prescribed by section 31 of the said Act for filing a pre-emption suit or otherwise.

6. The same question came up for consideration before the apex Court in case of Maulana Noor-ul-Haq v. Ibrahim Khalik 2000 SCMR 1305 where it was held that provision with regard to issuance of public notice by the Registrar contained in section 32 of the N.-W.F.P. Pre-emption Act, 1987 has no nexus with the period of limitation prescribed by section 31 of the said Act for filing a pre-emption suit arising from a registered sale-deed. The explicit and mandatory provisions of section 31 of the N.-W.F.P. Pre-emption Act, 1987 leave no room for doubt that in case of a sale effected through a registered sale-deed the period of 120 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 provision 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 Courts cannot supply "casus omissus". A comparative study of sections 31 and 32 of the Act would make it manifest that the provision with regard to public notice by the Registrar contained in section 32 has no nexus with the period of limitation prescribed by section 31 for filing a pre-emption suit in respect of a sale transaction effected through a registered sale-deed and is meant to provide an extra source of knowledge for making "Talb-e-Muwathibat" and an alternative time frame for making, "Talb-e-Ishhad" in accordance with subsection (3) of section 13 of the Act.

7. In the result, the impugned judgment dated 2-4-2008 of the learned Additional District Judge-VI, D.I. Khan is upheld and this Civil Revision stands dismissed in limine along with Civil Miscellaneous No.91 of 2008. H.B.T./135/P Petition dismissed.