1994 PLP 506 (CLC)

‑‑‑‑S. 30‑‑‑Suit for pre‑emption ‑‑‑Limitation‑‑‑Sale in respect of pre‑empted land took place by mutation attested on 30‑9‑1989, at time when no statutory law was on the statute book as Punjab Pre‑emption Act, .1913 was struck down as uni‑‑Islamic by Shariat Appellate Bench of Supreme Court with effect from 31‑7‑1986‑‑‑Suit for pre‑emption was filed by plaintiff on 15‑5‑1990 at time when Punjab Pre‑emption Ordinance, 1990 was enforced which had provided period of 4 months for filing suit from attestation of mutation‑‑‑Mutation of sale having been attested on 30‑9‑1989, suit filed on 15‑5‑1990 was time barred‑‑‑Swiftness of required steps by a pre‑emptor for enforcement of his pre‑emptive rights was true essence and object behind pre‑emption ‑‑‑Law of limitation, in circumstances was required to be construed strictly. (b) Punjab Pre‑emption Ordinance (V of 1990)‑‑‑ ‑‑‑‑Ss. 13 . & 35‑‑‑Talabs‑‑‑Unreasonable delay in exercise of Talabs tantamounts to acquiescence and extinguishes pre‑emption. Muhammad Rashid Chughtai for Petitioner. Civil revision by the plaintiff arose from a pre‑emption suit. Trial Court rejected the plaint as barred by limitation. Appellate Court endorsed its decision. Plaintiff seeks revision of them. For decision of the question relating to bar of limitation, a brief reference to the facts shall be helpful. Shamsher Ali sold 50 kanals of land to Ashiq Hussain, and, his brother, Ghulam Muhammad for a consideration of Rs.70,000 vide Mutation No.2014, attested on 30‑9‑1989. Iqbal Hussain as plaintiff claimed pre‑emption in respect of this sale. He instituted a suit for possession by pre‑emption on 15‑5‑1990. Defendants submitted their written statement and denied the averments in the plaint. They also averred bar of limitation to the pre‑emption suit. Issues being framed and the statement of a P.W. taken, the issue regarding limitation was decided to be taken ‑ up as preliminary. Parties resolved not to give any evidence respecting issue of limitation. Upon hearing arguments on it, the trial Court found the pre emption suit barred by limitation prescribed in section 30 of Punjab Pre emption Act, 1991. As observed above, appellate Court affirmed its decision. The point for consideration would, be, whether the pre‑emption suit was barred by limitation as found in the lower Courts. Sale took place by mutation attested on 30‑9‑1989. Pre‑emption suit was instituted on 15‑5‑1990. At the time of sale, there was no statute law on the subject of pre‑emption, in the Province of Punjab. Punjab Pre‑emption Act, 1913, was struck down as un‑Islamic in the case of Malik Said Kamal Shah by Shariat Appellate Bench of Supreme Court with effect from 31‑7‑1986. Therefore, it was an obsolete law on the statute‑book. There was a period of interregnum from 1‑8‑1986 to 28‑3‑1990. On 29‑3‑1990, Punjab Pre‑emption Ordinance, 1990 (Ordinance V of 1990) was enforced. It was followed by Punjab Pre‑emption Ordinance, 1990 (Ordinance XII of 1990), Punjab Pre emption Ordinance, 1990 (Ordinance XVIII . of 1990), Punjab Pre‑emption Ordinance, 1990 (Ordinance XXVII of 1990), Punjab Pre‑emption Ordinance, 1991, (Ordinance IX of 1991) and finally Punjab Pre‑emption Act, 1991 (Act IX of 1991). Section 30 of Punjab Ordinance V of 1990 provided for a terminus a quo in respect of period of limitation for a suit to enforce a right of pre‑emption. It said that the period of limitation shall be four months from the date‑‑(a) of the registration of the sale‑deed; (b) of the attestation of the mutation, if the sale is made otherwise than through a registered sale‑deed; (c) on which the vendee takes physical possession of the property if the sale is made otherwise than through a registered sale‑deed or a mutation; or (d) of knowledge by the pre‑emptor, if the sale is not covered under paragraph (a) or paragraph (b) or paragraph (c). Ordinance XII, Ordinance XVIII, Ordinance XXVII, Ordinance IX and finally Act IX of 1991, provided for a similar period of limitation and its terminus a quo. Mutation is attested on a date when a final order on it is passed by a Revenue Officer under section 42, subsection (6) of Punjab Land Revenue Act, 1967. In terms of section 30, for a suit for pre emption, limitation began to run from the date of attestation of mutation i.e. 30‑9‑1989. There was no ambiguity about it, in face of a 'Clear language of the statute. Law of limitation was a law relating to procedure and a suit or proceeding was governed by the Limitation Law in force at the time of its institution. On. the date of filing of the suit, Punjab Ordinance V of 1990 had A come in force and was followed by successive Ordinances and the Act, keeping the provisions regarding limitation alive. The argument that commencement of limitation was linked with and depended upon "notice" in the succeeding section did not appeal to me. In fact, the notice‑provision in the section was clearly relatable to and had nexus with demands of pre‑emption contemplated by section 13, subsection (3) of the Pre‑emption Ordinance/Act. Therefore, the bar of limitation being apparent on the face of the plaint itself, could not be overlooked and postponed for decision till the end of trial of the pre‑emption suit. Swiftness of required steps by a would‑be pre‑emptor for enforcement of 8 his pre‑emptive rights was the true essence and object behind the pre‑emption. Unreasonable delay in performance of Talabs tantamounts to acquiescence and extinguishes the pre‑emption. The law of limitation, therefore, was required to be construed strictly. In view of aforesaid, I would agree with the lower Courts, uphold their decision and dismiss the revision petition in I D limine. H.B.T./I‑69/L Petition dismissed.