2001 PLP 2343 (YLR)

S.30

Limitation Act (IX of 1908), Ss.12(1) & 29(2)

West Pakistan General Clauses Act (VI of 1956), S.2(38)

Pre-emption suit

Limitation

Considering lunar months for calculating period of four months

Validity

Period for filing suit for pre-emption has been prescribed in S.30 of Punjab Pre-emption Act, 1991, itself and while computing the period of limitation the word from' has been used which has been defined in S.8 of West Pakistan General Clauses Act, 1956, to mean that the first day is to be excluded, which is further fortified by Ss.12 (1) & 29(2) (a) of Limitation Act, 1908

Word 'month' has been defined to mean a month according to British Calendar under the provisions of S.2(38) of West Pakistan General Clauses Act, 1956

In the presence of various provisions as are available on the statute book it is neither possible nor reasonable to reckon the limitation under S.30 of Punjab Pre-emption Act, 1991, according to the lunar months. Talib Hussain and another v. Muhammad Sharif and 4 others 2000 CLC 323 rel. Noor Muhammad Awan Malik for Petitioner. Sardar Muhammad Ramzan and C.M. Latif Rawn for Respondent. Date of hearing: 6th August, 2001. This revision petition is directed against the remand order dated 4-3-1993 passed by the learned District Judge, Bhakkar, whereby the appeal of the respondent was accepted and the judgment and decree dated 18-10-1992 passed by the learned Civil Judge 1st Class, Kallurkot was reversed, resultantly the suit of the respondent was remanded to the learned trial Court for its decision on merits.

2. Some necessary facts are that sale of land measuring 146 Kanals, 7 Marlas situate Mauza Jhumat Shamali, Tehsil Kallurkot, District Bhakkar, effected in favour of the petitioner vide mutation dated 8-2-1992, was sought to be pre-empted by the respondent on the ground of his being Shafi Sharik, Shafi Khalit and Shafi Jar with the assertion that he had performed the requisite Talbs in accordance with law. The suit filed in that regard was resisted by the petitioner inter alia on the ground that the same is barred by limitation and that the respondent .had no preferential rights nor performed Talbs in accordance with law. The learned trial Court treated the issue as to limitation as preliminary issue and proceeded to dismiss the suit on the ground that the same is barred by limitation. The respondent/pre-emptor filed an appeal against the above said judgment and decree, which was accepted by the learned District Judge, Bhakkar, vide his order dated 4-3-1993, whereby the issue of limitation was decided against the petitioner herein and the case was remanded to the learned trial Court for its decision on merits.

3. The above said remand order has been challenged in the present revision petition.

4. Admittedly, the mutation of sale was entered and attested in favour of the vendee/petitioner on 8-2-1992 while the suit to pre-empt the said sale was filed on 8-6-1992. The limitation prescribed for filing such .a suit is four months, which is to be reckoned from the date of attestation of mutation, if the sale is made otherwise than through a registered sale-deed. While computing the period of four months for filing the suit for pre-emption as prescribed by section 30 of the Punjab Pre-emption Act, 1991, it would be advantageous to refer to the word 'from' as used in section 30 (ibid). It has been ordained in section 8 of the West Pakistan General Clauses Act, 1956 that whenever the period of limitation is to be computed and for that purpose particularly the word 'from' is used, the first day is to be excluded in calculating the said period. Following the letter of law as ordained in section 8 of the West Pakistan General Clauses Act the suit filed on 8-6-1992 is well within limitation for the 'month' as defined in subsection (38) of section 2 of the West Pakistan General Clauses Act means a month reckoned according to the British Calendar. I am fortified in this view by the judgment in the case of Muhammad Zubair and another v. Saleh Muhammad and 2 others 1993 CLC 1047, wherein it was held thus:-- "I have considered the arguments addressed by the learned counsel for the parties and have also gone through the record. Sale took place through a registered sale-deed on 17-6-1979.The suit was filed on 17-6-1980. Calculating the period of limitation in accordance with the provisions of the Limitation Act read with the General Clauses Act, the period -of one year shall expire on the expiry of last minute of 17-6-1980. The suit, therefore, could have been filed during the Court hours on 17-6-1980. It was filed on that date within Court hours and as such is well within time." The learned counsel for the petitioner tried in vain to split the limitation of four months into days, which even according to him comes to 120 days. Calculated from this angle the suit as filed on 120th day was still within limitation. Need it be stated here that this could not be so calculated for the legislature in its wisdom has used the word four months and has further defined the 'month' to mean month according to the British Calendar. Faced with this situation, the learned counsel for the petitioner relied on section 3 as also section 32 of the Punjab Pre-emption Act, 1991 to contend that section 3 in its terms lays down that while interpreting and applying the provisions of the Punjab Pre-emption Act the Court shall seek guidance from the Holy Qur'an and Sunnah while section 32 speaks of matters ancillary and akin to the provisions of this Act and has ordained thus:-- "Matters ancillary or akin to the provisions of this Act which have not been specifically covered under any provision thereof shall be decided according to Shari'ah. " The burden of argument was to the effect that the months should be reckoned as lunar months and that in interpreting the provisions of Punjab Pre-emption Act specifically the rule in the matters ancillary and akin to the provisions of this Act should be decided according to Shari'ah and that the Courts should seek guidance in interpreting and application of the provisions of Punjab. Pre-emption Act from the Holy Qur'an and Sunnah. The argument appeared to be plausible in the first blush but on deeper probe nothing turned on the same. The period for filing a shit for pre-emption has been prescribed in section 30 of the Punjab Pre-emption Act itself and while computing the said period of limitation the word 'from' has been used which has been defined in section 8 of the West Pakistan General Clauses Act to mean that the first day is to be excluded, which is further fortified by section 12(1) of the Limitation Act as also sub-clause (a) of subsection (2) of section 29 of the Limitation Act. Again subsection (38) of section 2 of the West Pakistan General Clauses Act has defined the word 'month' to mean a month according to British Calendar. In the presence of various provisions as are available on the statute book it is neither possible nor reasonable to argue that in case of Punjab Pre-emption Act, the limitation should be reckoned according to the lunar months. The question fell for interpretation in the case of Talib Hussain and another v. Muhammad Sharif and 4 others (2000 CLC 323) and was answered thus:-- "The contention of learned counsel for the respondents that General Clauses Act, 1898, is not applicable to the present case and that the period of four months is to be reckoned as lunar months, .is devoid of any force. The period of limitation provided in the Act is simply 'four months'. If the intention of the legislation was Islamic four months or 120 days, it would have specifically mentioned as 'four lunar/Islamic months'. That having not been so incorporated, I am unable to accept his contention that said four months would mean four lunar/Islamic months." I am in respectful agreement with the rule of law laid down in the said judgment. In the circumstances, learned counsel for the petitioner has failed to point out any illegality in the judgment passed by the learned District Judge whereby the question of limitation was decided against the petitioner and the case was remanded to the learned trial Court for its decision on merits: In result this revision petition fails and is dismissed with no order as to costs. Q.M.H./M.A.K./G-109/L Revision dismissed.