2003 PLP 1764 (CLC)

(II) "Talb-e-Ishhad' mans demand by establishing evidence. (III) ' Talb-I-Khusumat' means demand by filing a suit. (2) When the fact of sale comes within the knowledge of a pre emptor through any source, he shall make 'Talb-I-Mawathibat.' (3) Where a pre-emptor has made Talb-i-Muwathibat under subsection (2), he shall as soon thereafter as possible but not later than two weeks from the date of knowledge make Talb-I- Ishhad by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgement due, to the vendee, confirming his intention to exercise the right of pre-emption. Provided that in areas where owning to lack of post office facilities it is not possible for the pre-emptor to give registered notice, he may make Talb-I-Ishhad in the presence of two truthful witnesses."

5. On the other hand, learned counsel for the respondent with reference to Manzoor Hussain Shah. v. Fazal Dad and another 2000 SCMR 216 contends that the day of acquiring knowledge of sale cannot be excluded from the period of limitation provided under subsection (3) of section 13 of the Punjab Pre-emption Act, 1991.

6. I have considered the respective contentions of the learned counsel for the parties. Admittedly, if the day of acquiring knowledge i.e. 23-6-1992 is excluded, the notice issued by the petitioner on 7-7-1992 comes to be on the fourteenth day i.e. falls within two weeks provided under subsection (3) of section 13, therefore, the only question involved in the case would be whether the day of acquiring knowledge of a sale is to be excluded from count of period of limitation or it is to be included within two weeks provided under the law.

7. The period of two weeks provided under subsection (3) of section 13 of the Punjab Pre-emption Act, 1991 is also a sort of period or limitation prescribed by a statute to perform a certain act. In order to interpret this provision of pre-emption law, a help can be sought from section 12 of the Limitation Act which provides as follows:-- "

12. Exclusion of time in legal proceedings:

(1) In computing the period of limitation prescribed for any suit, appeal application the day from which such period is to be reckoned shall be excluded. (2) In computing the period of limitation prescribed for an appeal, an application for leave to appeal and an application for a review of judgment, the day on which the judgment complained of was pronounced, and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be reviewed, shall be excluded." Subsection (1) and (2) of section 12 of the Limitation Act provide that for computing period of limitation, the day on which the impugned judgment is pronounced is excluded from counting towards period of limitation. The day when the judgment is announced is a day when the parties concerned acquire knowledge of a decision which they may challenge before a higher forum. Under section 12 of the Limitation Act, the said day of acquiring knowledge is excluded from computation of limitation. Likewise, when the ex parte decree or judgment is passed against the parties, the period of limitation starts from the day when he acquires knowledge. In such cases, the day when he acquires knowledge of the ex parte decree would be deemed to be the day of judgment and would be liable to be excluded from computation under section 12 of the Limitation Act. Therefore, on the same anology the day when the plaintiff/pre-emptor acquires knowledge, also deserves to be excluded from the period of limitation of two weeks.

8. There is another angle to look at this issue. Subsection (3) of section 13 of the Punjab Pre-emption Act, 1991 provides as follows:-- "he shall as soon thereafter as possible." The day when the plaintiff acquires knowledge is the day fixed for the performance of another act i.e. Talb-i-Muwathibat under subsection (1) of section 13 of pre-emption Act. Thus the first day of knowledge stands consumed towards the performance of Talb-i Muwathibat. The above quoted phrase means that the act of Talb-i-Ishhad is to be performed "thereafter". This "thereafter" means, after the performance of Talb-i-Muwathibat, for which the first day of knowledge stands consumed. Thus subsection (3) of section 13 itself also provides that the day of knowledge of sale is not to be included towards count off two weeks time for the performance of Talb-i-Ishhad.

9. In order to resolve the present controversy section 8 of the West Pakistan General Clauses Act, 1956 is also helpful. For ready reference, the same is reproduced as follows:-- "Commencement and termination of time. In Any West Pakistan Act, it shall be sufficient, for the purpose of excluding the first in a series of days or any other period of time to use the word "from" and for the purpose of including the last in a series of days or any other period of time to use the word `to'." Subjection (3) of section 13 of the Punjab Pre-emption Act, 1991 carries the following phrase:-- "But not later than two weeks "from" the date of knowledge." The use of word "from " in subsection, (3) of section 13 would exclude the day of knowledge, keeping in view the provision of section 8 of the General Clauses Act.

10. For what has been stated above, these civil revisions are allowed. The judgments and decrees passed by the two Courts below are set aside and it is held that the notice of Talb-i-Ishhad issued by the petitioner on 7-7-1992 was within the prescribed period of two weeks. Since, both the Courts below have only dilated upon Issue No.12 alone and had not touched the other merits of the case despite the fact that evidence on all the issues was available on record, therefore, the cases are remanded to the learned trial Court which shall proceed henceforth in accordance with law. No order as to costs. H.B.T./A-823/L Revision allowed accordingly.