2016 PLP 83 (CLCN)

ABDUL LATIF KHAN, J.

Through the instant revision petition, the petitioner Illauddin has called in question the judgment and decree dated 22.01.2010 passed by learned District Judge, Tank whereby his appeal against the judgment and decree dated 18.11.2009 of learned Civil Judge, Tank was dismissed.

2. Compendium facts leading to the instant revision petition are that the petitioner/plaintiff filed a suit for possession through pre-emption in respect of the property detailed in the heading of the plaint sold through registered deed No.133 dated 04.12.2007. It was averred that the petitioner/plaintiff came to know about the suit transaction on 02.6.2008 at 5 p.m. in his baithak through one Rabistan Khan and there and then declared his intention to pre-empt the suit land and thereafter sent notice talb-e-ishhad to the respondent/defendant through registered A/D.

3. The suit was contested by the respondent/defendant by submitting his written statement. The learned trial Court framed issues arising out of the pleadings of the parties. Evidence of the petitioner/plaintiff was being recorded when the respondent/defendant filed an application under Order VII, Rule 11, C.P.C. for rejection of the plaint. The application was contested by the petitioner/plaintiff by filing replication. After hearing the arguments, the learned Civil Judge, Tank accepted the application and rejected the plaint under Order VII, Rule 11, C.P.C. vide order dated 18.11.2009.

4. Dissatisfied with the order dated 18.11.2009, the petitioner/plaintiff preferred an appeal which was also dismissed on 22.01.2010 with the only modification that suit of the petitioner/plaintiff was dismissed instead of rejection of plaint, hence the instant revision petition.

5. Learned counsel for the petitioner contended that the sale transaction was kept secret by the petitioner/plaintiff as no notice was served as required under section 12 of the N.-W.F.P. Pre-emption Act, 1987. He contended that the Sub-Registrar was legally bound to give public notice at the time of registration of sale deed No.133 dated 04.12.2007, in the mode and manner of service of notice as prescribed under section 32(2) of the N.-W.F.P. Pre-emption Act, 1987. He contended that the petitioner expressly agitated in para-3 of the plaint that no public notice was issued by the registering authority and in view of the same it was imperative upon the trial Court to frame issue and afford an opportunity to the parties to lead evidence in support of their contentions. He contended that rejection of plaint under Order VII, Rule 11, C.P.C. on the score of limitation was not permitted by law. He laid much stress on the point that the appellate Court has wrongly modified the rejection of plaint into dismissal of suit and the same amounts to excess of jurisdiction vested in the appellate Court.

6. Conversely, the learned counsel for the respondent contended that the period of limitation has been prescribed as 120 days under section 31 of the N.-W.F.P. Pre-emption Act, 1987 and no extension of limitation for filing suit has been given, as no provision to this extent has been provided in the Act. He vehemently supported the judgments of the Courts below and prayed for the dismissal of the instant petition.

7. I have given my anxious consideration to the arguments of learned counsel for the parties and perused the record with their valuable assistance.

8. Section 31 of the N.-W.F.P. Pre-emption Act, 1987 is reproduced below for ready reference:- "

31. Limitation

The period of limitation for a suit to enforce a right of pre-eruption under this Act shall be one hundred and twenty days from the date-- (a) Of the registration of the sale-deed, or (b) Of 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)." A period of limitation for filing a suit to enforce right of pre-emption has been provided by the referred section as 120 days from the date of registration of sale deed, attestation of mutation, physical possession and knowledge of the pre-emptor, if the sale is not covered by first three conditions.

9. In the instant case; the sale deed No.133 was registered on 04.12.2007 and suit has been filed on 28.6.2008, after about more than six months, which is beyond the prescribed period of limitation of 120 days. The respondent/defendant submitted application under Order VII, Rule 11, C.P.C., on the basis of which rejection of plaint was sought being time barred which was rightly rejected by the trial Court. The appellate Court though has dismissed the appeal but modified the impugned judgment passed by the trial Court from rejection of plaint to dismissal of suit which is not correct and to the extent of modification, the judgment of appellate Court is not in consonance with law. However, so far as rejection of plaint under Order VII, Rule 11, C.P.C. is concerned, if the suit is barred by law, as in the instant case, the mischief of limitation bars the suit filed by the pre-emptor, therefore, the Courts below have rightly held the suit as time barred and the powers for rejection of plaint have been rightly exercised.

10. The contention of learned counsel with respect to the notice under section 32 of the N.-W.F.P. Pre-emption Act, 1987, that Registrar concerned did not give public notice in respect of registration of deed and the period of limitation has to be counted from the date of knowledge of the pre-emptor and not from the date of registration of sale deed, is totally misconceived. The provisions of issuance of public notice under section 32 by the Sub-Registrar have no nexus with the period of limitation prescribed under section 31 of the Act ibid for filing suit for pre-emption against a registered deed. In case of sale effected through registered sale deed, a period of limitation under section 31(a) of the Act ibid would be reckoned from the registration of sale deed and not from the knowledge. Under clause (d) of section 31 of the Act, the limitation would be computed from the knowledge only if the sale does not fall within the purview of subsections (a), (b) and (c) of section 31 of the Act but in the instant case, it falls under subsection (a) of section 31 of the Act, therefore, the computing of period from the date of knowledge of the pre-emptor is totally incorrect and against the spirit of law.

11. The pre-emptor was required to file suit within a period of 120 days, failing which, the suit would not be maintainable. Perusal of the plaint reveals that it was drafted on 11.6.2008 but filed on 28.6.2008, after about 17 days of its drafting. Moreover, para-4 of the plaint reveals that the petitioner/plaintiff allegedly acquired knowledge on 02.6.2008 but he remained mum from 02.6.2008 to 28.6.2008 i.e. for a period of 26 days and to this effect, there is no explanation as to why he has not come to the Court at the earliest and delayed the matter without any rhyme or reason, which shows his conduct and in such scenario, the provisions of issuance of notice under section 32 of the Act would not be attracted to the instant case and the petitioner/plaintiff would be estopped by his own conduct in filing the suit with delay, which is apparent on the face of the record. The registered sale deed reveals that the Sub Registrar has issued the notice in accordance with the procedure, law besides, which has no nexus with the period of limitation for filing suit. The learned counsel for the petitioner vehemently stressed for the remand of case but was handicapped to reply the query as to what useful purpose would be served by remanding the case to trial Court for recording of pro and contra evidence, if the ground reality remains intact that the suit has been filed after about more than six months and by producing evidence, the petitioner/plaintiff cannot be benefited as the hurdle of limitation in way of petitioner/plaintiff remains there and would amount to enhance the agony of other side by facing another round of limitation, which is against the norms of justice, law besides. Perusal of the plaint reveals that the petitioner/plaintiff has not mentioned the date of sending notice talb-e-ishhad in the plaint which is legal requirement under the law. Reliance in this respect is placed on the case of Mst. Saleem Akhtar v. Chaudhry Shauk Ahmad (2009 SCMR 673) wherein it was held that:- "It is by now the settled law that it would be mandatory for a plaintiff in a suit for pre-emption to incorporate in the plaint the date, time and `place of performance of talb-e-Muwathibat and date of issuing the notice of Talb-e-Ishhad in terms of section 13 of the Act, otherwise plaintiff's suit deserved to be dismissed."

12. So far as notice Talb-e-Ishhad is concerned, delivery of the same has not been proved by the plaintiff. The A/D card is not available on file and postman has not been examined in support of the service of notice, failing which, the presumption would be that no notice was served upon the vendee/defendant. Reliance in this respect is placed on the case of Bashir Ahmad's case (2011 SCMR 762) wherein it was observed that:- "that no notice was sent to him. Under the circumstances, it was incumbent upon the respondent being the plaintiff to prove service of notice upon the petitioner/defendant, moreso, when there was no acknowledgment of the said notice available on record. It is true that the respondent through production of witnesses amply proved that notice of talb-e-ishhad was sent to the petitioner, but it is equally true that it was not proved on record that in fact the same was served upon the former, inasmuch as, it was not brought on record that he refused to accept/receive the notice. Under the circumstances, it was the duty of the respondent to have at least produced the Postman, through whom notice was allegedly got served upon the petitioner, to prove that notice was actually sent to him at the right address and he received or refused to receive the said notice." In Amir Muhammad's case (PLD 2011 Peshawar 116) this court held that A.D card, if not available or produced on file, then examination of postman as witness in support of service of such notice would become necessary, failing which, presumption would be that no notice was received by the defendant.

13. For the reasons mentioned above, the instant revision petition being bereft of merit is hereby dismissed with no order as to costs. ZC/562/P Revision dismissed.