2012 PLP 1251 (MLD)

MAIN FASIH-UL-MULK, J.

Through this common judgment, I propose to dispose of Civil Revision No.445 of 2011 as well as Civil Revision No. 446 of 2011, No. 487 of 2011, No. 488 of 2011 and No.489 of 2011 as all these petitions are having similar question for determination.

2. Petitioner preempted the sale transaction of landed property in favour of respondent through various sale mutations by filing suits before the learned Civil Judge, Mardan at Takhtbhai. During proceedings, it transpired that petitioners had not deposited 1/3rd preemption amount within the given period of 60 days, hence suits of petitioners were dismissed under section 24(2) of the N.-W.F.P. Pre-emption Act, 1987. Petitioner filed appeals but same were also dismissed by the learned appellate Court, hence these petitions.

3. I have heard learned counsel for the parties and have also perused the record.

4. The trial Court on 30-7-2007 directed petitioner to deposit 1/3rd of the pre-emption money within sixty days. Petitioner on 27-9-2007 submitted application for deposit of said amount which was allowed and the amount in question was deposited in Government Treasury on 28-9-2007. On pointation of respondent that preemption money was not deposited within due date, arguments of both the counsel were heard. Petitioner took the plea that deposit of pre-emption money was within time as the date of order i.e. 30-7-2007 for deposit of money would be excluded from count under the provisions of section 8 of West Pakistan General Clauses Act, 1956. The stance of respondent was that section 8 of West Pakistan General Clauses Act, 1956 would be applicable in case the word "from" is used but as per section 24(2) of the N.-W.F.P. Pre-emption Act, the word "within" has been used. The argument of respondent prevailed with the, trial Court and the day on which petitioner was directed to deposit requisite money was treated to be included, hence the alleged deposit was held to be late by one day i.e. on 61st day instead of 60th day of the order.

4. Perusal of the impugned judgments would reveal that petitioner in support of his case had placed reliance on the reported judgments in 2003 CLC 1597 and 2003 CLC 661, but the same were not taken into consideration for the reason that said cases were with respect to Punjab Pre-emption Act, 1991.

5. However, section 24(2) of N.-W.F.P. Pre-emption Act leaves it up to the discretion of the Court to direct pre-emptor to deposit the pre-emption amount within such period as the Court may fix. No specific period is stipulated for such deposit and such deposit is, therefore, subject to an order passed by the Judge. The august Supreme Court of Pakistan in the case of Muhammad Yousaf and 3 others v. Zafarullah and another (1992 SCMR 117) has held that:-- "This is a case not of enactment or contract, but of an order passed by a Judge. The order will therefore have to be construed as to effectuate the intention of the Court, regard being had to the contest and the purposes for which the order was passed, not overlooking the need of an equitable interpretation desirable in the interest of the person who has to make the deposit and who should be free from any doubt. Now an order of the Court must have some semblance of uniformity with the interpretation which the law would put and equity support in such a case where a time is prescribed for the doing of an act by a statutory enactment. Under section 8 of the Provincial General Clauses Act, 1956, a date from which the period of time is to be reckoned has to be excluded while computing the period. For the purpose of uniformity, the same interpretation should be given where a Court's order fixed the date from which a period has to commence." It, therefore, follows that in computing any period of time prescribed or allowed by order of Court or by any applicable statute or regulation, the date of the act or event after which the designated period of time begins to run is not to be included. The learned Courts below in the circumstances were not justified to have included the date, on which order for deposit was made, towards calculation of the period of sixty days, which should have been excluded from count.

6. For the aforesaid reasons, the impugned judgments of the Courts below are not based on proper appreciation of the law and facts on record, hence are liable to be set aside. Accordingly, all the petitions are accepted, the impugned judgments and orders of the two Courts below are set aside with direction to the trial Court to start proceedings in the case from the stage where same were left at the time of passing of the impugned judgment. No order as to costs. K.M.Z./105/P Petitions accepted.