1985 PLP 2527 (CLC)

This regular second appeal has arisen out of a pre-emption suit brought by the appellants, Abdullah and another to pre-empt a sale which had taken place on 7th December, 1965. They presented the plaint of their suit before the Tehsildar, Wazirabad, District Gujranwala on 5-12-1966. On 5-12-1966 there was no Civil Judge posted at Wazirabad. By means of the endorsement made by him on the back of the plaint it was directed by the Tehsildar that the suit shall be put up before the learned Civil Judge on 7th January, 1967. This was accordingly done. The suit was resisted by the respondent, Rehmat All, who was only defendant in the suit, inter alia on the ground that it was time barred. The plea of the respondent had found favour with the learned Civil Judge. As a result, the suit was dismissed by him. The appellants went in appeal before an Additional District Judge but in vain. They have, therefore, come up in second appeal to this Court. It was contended by learned counsel by the appellants that the Tehsildar was duly authorised to receive the plaint on 5th December, 1966 and, therefore the suit shall be deemed to have been filed on the said date. In this connection, reliance was placed by him on letter No. 1025-G/XI.X.37, dated 5th July, 1952 addressed by the District and Sessions Judge, Gujranwala, to the Registrar, High Court of West Pakistan, Lahore. By the said letter, copy Exh.P.1, the learned District Judge had informed the Registrar that Ch. Hamid Ullah, Civil Judge, Ist Class, Gujranwala, would be visiting Wazirabad and Hafizabad periodically and that the Ahlmads of the Civil Courts at Wazirabad and Hafizabad were going to be withdrawn. As for the filing of the suits at the said two places in the absence of the learned Civil Judge, the learned District Judge made the following arrangement: "The previous practise of receipt pf plaints at Wazirabad and Hafizabad should continue with the change, however, that the plaints should be received by the Naib Nazir at each place instead of the Ahlmads. He is directed, after receiving the plaints, to get those initialled at once from the Tehsildar or the Naib Tehsildar, whoever may be at the headquarters then, and then forward the same to Ch. Hameed Ullah, Civil Judge Ist Class, at the headquarters for disposal. During the days of the visit of the Civil Judge Ist Class at the headquarters for disposal. During the days of the visit of the Civil Judge Ist Class, Gujranwala, at Hafizabad and Wazirabad, he shall receive the plaints etc. himself. The Naib Nazirs may be informed accordingly. They will also be put in charge of the libraries attracted to these Courts".

3. On the other hand, it was submitted by learned counsel for the respondent that since the Tehsildar was not an officer of the Court he could not be authorised to receive the plaint in the absence of the learned Civil Judge. According to learned counsel for the respondent, the authorisation made by the learned District Judge was, in fact, in favour of Naib Nazir, but since it was stated by the Naib Nazir (Khurshid-ul-Haq) as D.W. 2 that the plaint was not presented to him, the presentation of the plaint to the Tehsildar was of no legal effect. Learned counsel for the respondent placed reliance on Nazar Muhammad v. Murad Ali and others P L D 1960 (W.P.) Lah. 757, to support his arguments. 4.? In the cited case the Duty Magistrate was authorised to receive plaints and it was held that it was not valid authorisation in his favour. It was further ruled that since the plaint was presented to a person who had no authority to receive it, it was no presentation and that the date of presentation would be deemed to be the date when the plaint was placed before the Court. The view taken by the learned Division Bench, who decided the case of Nazar Muhammad, was that under Order IV, rule 1, of the Code of Civil Procedure, only an officer of the Court, which ordinarily has to receive the plaints, could be authorised to do so. In view of the above dictum, Tehsildar, Wazirabad could not be authorised to receive the plaint inasmuch as he was not an officer of the Civil Court at the said station. As is evident from the letter of the learned District Judge, the Tehsildar was also not authorised to A receive the plaint. It was the Naib Nazir who was authorised to do so and he was simply directed to have the plaints so received initialled by the Tehsildar or the Naib Tehsildar. Even if it is assumed that by his involvement in the exercise relating to receipt of the plaints, the Tehsildar was himself authorised to receive the plaint, the authorisation in his favour was not valid in view of the law laid down in the case of Nazar Muhammad. Therefore, looked from any angle, presentation of the plaint to the Tehsildar was of no avail to the appellants. The plaint should have been presented to the Naib Nazir but according to the statement of the Naib Nazir this was not done. In the circumstances the plaint will be deemed to have been presented on 7th January, 1967 before the learned Civil Judge and by then the suit had become time barred. In this view of the matter, no legitimate exception can be taken to the concurrent finding of the learned lower Courts on the issue of limitation. 5.? No other point was canvassed before me.

6. Resultantly, this appeal fails. It is dismissed with no order as to costs. M.A.K.?????????????????????????????????????????????????????????????????????????? Appeal dismissed.