2020 PLP 925 (YLR)

SYED MUHAMMAD ATTIQUE SHAH, J.

Through the present writ petition, the petitioner Rehmat Khan has prayed for setting aside the judgment dated 11.7.2019, rendered by learned District Judge, Tank, whereby his revision petition against the order dated 02.4.2019, passed by learned Civil Judge-IV, Tank, was dismissed.

2. Facts of the case, in brief, are that the respondent No.1 brought a suit for possession through exercise of right of pre-emption against the present petitioner in respect of the suit property fully described in the heading of the plaint. On appearance before the trial Court, the petitioner filed an application for rejection of plaint under Order VII, Rule 11, C.P.C., which was resisted by respondent/plaintiff through submission of his written reply. The learned Trial Court, after hearing learned counsel for the parties, dismissed the application vide order dated 02.4.2019, against which revision petition filed by the petitioner was also dismissed by the learned revisional Court vide impugned order dated 11.7.2019, hence this constitutional petition.

3. Arguments heard and record gone through.

4. The moot question for determination before this Court is that whether the suit filed by the respondent/plaintiff is maintainable in view of mandatory provisions of Section 31 of the Khyber Pakhtunkhwa Pre-emption Act, 1987? It would be advantageous to reproduce the ibid Section before proceeding further, which is quoted herein below:- "Limitation

The period of limitation for a suit to enforce a right of pre-emption under this Act shall be one hundred and twenty days from the date- (a) of the registration of the sale-deed; or (b) of the attestation of the mutation, if the sale is made otherwise than through the registered sale deed; or (c) On which the vendee takes physical possession of the property if the sale is made otherwise than through the registered sale deed or the mutation; or (d) of knowledge by the pre-emptor, if the sale is not covered under paragraph (a) or paragraph (b) or paragraph (c)." Perusal of the above provisions reveals that no extension in period of limitation for filing the suit has been provided therein. The period of limitation for a suit to enforce a right of pre-emption would be computed from the date of attestation of registered sale-deed or if sale is made through mutation, the period of limitation is to be computed from the date of its attestation. The pre-emptor is required to file the suit for pre-emption within a period of 120 days as provided under the afore-stated provisions of law; meaning thereby that if the pre-emptor failed to file the suit within the specified period, his suit would not be maintainable, as there is no provision available in the ibid Act that the suit can be filed within 120 days from the date of knowledge of the pre-emptor in case of registered deed as well as the sale mutation.

5. Perusal of the record reveals that the suit property was transferred in favour of the petitioner vide registered sale deed dated 28.02.2018 and subsequently, the impugned mutation No.1249 was attested on 28.8.2018. According to respondent/ plaintiff, he got knowledge of the impugned sale on 01.10.2018 and after fulfilling the requisite Talbs, he filed the present suit on 11.10.2018, by challenging the ibid mutation through exercise of right of pre-emption. As stated earlier, the suit of the respondent is not maintainable being barred by time, as there is no provision in the ibid Act that the suit can be filed within 120 days from the date of knowledge of the pre-emptor in case of registered deed. Needless to say that the provisions of sections 31 and 32 of the ibid Act are independent and have no nexus with each other. Section 32, being directory in nature, neither has an overriding effect on Section 31, nor can override the same in any manner for being mandatory. Reliance in this behalf can be made on case law reported as Maulana Nur-ul-Haq v. Ibrahim Khalil (2000 SCMR 1305) and Khalid Nabi Khan v. Haq Nawaz and 2 others (2012 YLR Peshawar 126).

6. So far as the applicability of section 12 of the Act is concerned, the same has nothing to do with the provisions of section 31 of the Act ibid, as the same exclusively deal with the rights of the persons entitled to pre-empt. Needless to say that the registered deed by itself is a notice to the other party.

7. Now coming to the argument of the learned counsel for the respondent that the provisions of Section 32 of the ibid Act are mandatory in nature and thus have an overriding effect over the provisions of the Section 31 of the Act, in this respect, as observed above, this issue had long been settled and resolved by the Superior Courts in their pronouncements in clear and louder terms that the ibid provisions of section 32 are directory in nature and could not override the provisions of section 31 in any manner, which are mandatory in nature and in fact have an overriding effect upon the provisions of section 32 of the Act. As earlier discussed, the sale of suit property was effected vide registered deed dated 28.02.2018, whereas the suit was filed on 11.10.2018 after more than seven months, which, on the face of it, was hopelessly barred by time and hit by the provisions of section 31 of the ibid Act. In view of the above, the respondent/pre-emptor cannot take the shelter of sections 12 and 32 of the ibid Act. The above argument of learned counsel being misconceived is repelled and the plaint in the instant case is liable to be rejected. As of now, it is well settled that the Courts are under legal obligation to dismiss a time barred suit at its very inception in order to save the precious time of the Court and to protect the parties from the rigours of the useless trial. Maulana Nur-ul-Haq v. Ibrahim Khalil (2000 SCMR 1305), Collector, Land Acquisition, Chashma Right Bank Canal Project, WAPDA, D.I. Khan v. Ghulam Sadiq (2002 SCMR 677), Muhammad Sami v. Additional District Judge, Sargodha and 2 others (2007 SCMR 621) and Government of NWFP and others. v. Akbar Shah and others (2010 SCMR 1408). Both the Courts below have misconstrued the ibid provisions, while dealing with the matter in hand.

8. For the reasons mentioned above, the present writ petition is admitted and allowed, the impugned judgments/orders of both the Courts below are set aside and on acceptance of the application of the petitioner, the plaint is hereby rejected under Order VII, Rule 11 C.P.C. with no order as to costs. SA/317/P Plaint rejected.