P L D 1992 Supreme Court 47 (PLP)

ABDUL QADEER CHAUDHRY, J: --Leave to appeal has been sought against the judgment of the Peshawar High Court, dated 29-5-1991.

2. The brief facts of the case are that the respondent brought a suit for pre-emption on 8-5-1979 in respect of the disputed land against the petitioners. The suit was contested. It was dismissed disputed trial Court on the ground of limitation. The appeal filed by the respondent was accepted by the Additional District Judge, Bannu and the suit was decreed in favour of the pre-emptor on 10-11-1982. The petitioners challenged the aforesaid order of the Additional District Judge in revision before the High Court which was accepted on 13-11-1984 and the case was remanded to the trial Court. The trial Court dismissed the suit on 6-10-1987. The appeal filed by the respondent was dismissed by the District Judge on 11-12-1988. The respondent challenged these orders in a revision petition before the High Court which was accepted by the impugned order. It was held that the period of limitation had expired during the closure of the Court and the suit was filed on the day when the Court re-opened. As such, the plaintiff was in his right to file his plaint on the re-opening of the Court.

3. Learned counsel for the petitioners submitted that the plaint was? presented on 8-5-1979 and the period of limitation expired on 7-5-1979 therefore, the suit was barred by time. He submitted that the District Judge, Bannu and the Additional District Judge, Lakki Marwat and Senior Civil Judge, Bannu, were present in their Court therefore, the plaint could be ?presented to any one of these officers. It may be pointed out that the Civil Judge, Lakki Marwat, was on leave on 7-5-1979 as such the plaint was presented on 8-5-1979. The learned counsel for the petitioners has referred to an application moved by Akhi Khan in the Court of Additional District Judge that as the Civil Judge was on leave and he has not authorised any person to receive the plaint, therefore, an endorsement may be made and the plaint be sent to the Court concerned for necessary action. He submitted that there is a ?practice that in case the Civil Judge who receives plaint is on leave, the plaint can be presented to the Additional District Judge and that would be proper presentation of the plaint. We do not consider that such practice, if any, debars a plaintiff to exercise his right of presenting his plaint on the re-opening of the Court as the law gives such concession.

4. The learned counsel has referred to section 3 of the Civil Courts Ordinance, 1962 which provides that there shall be the following classes of Civil Courts, namely:-- (a) the Court of the District Judge; (b) the Court of the Additional District Judge; and (c) the Court of the Civil Judge. He, therefore, submitted that the presentation of the plaint to any one of these Courts would be proper presentation.

5. Section 23 of the Civil Courts Ordinance provides as follows:-- "In the event of the death, suspension or temporary absence of any Civil Judge, the District Judge may empower any other Civil Judge of the District to perform the duties of the Judge of the vacated Civil Court, either at the place of such Court or of his own Court, but in every such case the registers and records of the two Courts shall be kept separately."

6. The learned counsel for the petitioners submitted that section 23 does not relate to the absence of any Civil Judge for a short period but it relates to such eventuality where perforce the functions of the Court could not be performed. This contention is devoid of force and against the clear language of section

23. It clearly stipulates "suspension", "temporary absence" of any Civil Judge. The absence of Civil Judge even for a day would require the District Judge to empower any other Civil Judge to perform the duties of the Judge. Section 13 of the Ordinance relates to the places of sitting of Courts. Section LS provides that "notwithstanding anything contained in the Code of Civil Procedure, every District Judge may by written order direct that any civil business cognizable by the Courts under his control shall be distributed among such Courts in such manner as he thinks fit: Provided that no direction issued under this section shall empower any Court to exercise any powers or deal with any business beyond the limits of its jurisdiction". In the present case, the admitted position is that the learned Civil Judge who was on leave had not authorised any officer to receive the plaint in his absence. The learned District Judge, Bannu, has also not delegated such power to any other Judge. Under Order 4, rule 1, C.P.C. every plaint shall be presented to the Court or such officer as it appoints in this behalf. The power to receive plaint can be delegated by a separate order. The Court in which a plaint has to be presented is generally the Court of lowest grade competent to try the matter (S.15, 'X.C.). The power to receive plaints can be delegated by a specified order. The presentation of a plaint to an authorised officer is the proper presentation. If no authorisation is made then the plaint can be presented on the first day of re‑opening of the Court. Section 23 comes into effect in the event of temporary absence of a Presiding Officer. Under Rule 7(c) of the High Court Rules and Orders (Chapter 1, Part B) the District Judge may make arrangements for reception of plaints and petitions by another officer of a Court when an officer is temporarily sent on leave. In the present case, no such arrangement was made. In Nazar Muhammad v. Murad Ali PLD 1960 (W.P.) Lah. 757, it has been observed as hereunder:‑‑‑ "Applying these tests to the facts of the present case one cannot but arrive at the conclusion that the Court of the Senior Civil Judge, Gujranwala, was closed on the 16th August, 1954, so far as the presentation of plaints in that Court was concerned. This is so because the Presiding Officer of the Court was on leave and the plaint could not be presented to him. On the 16th of August, 1954, officials of the Court of the Senior Civil Judge, Gujranwala, were probably all present in the Court‑room, or in a room attached to it, but as none of? them had been authorised by the Senior Civil Judge, Gujranwala, to receive plaints on his behalf, their presence was entirely immaterial. What I have said above about the Court of the Senior Civil Judge, Gujranwala, applies with equal force to the Court of the District Judge, Gujranwala. It follows, therefore, that section 4 of the Limitation Act comes to the aid of the plaintiff and because the Senior Civil Judge, Gujranwala, returned from leave on the ''8th of August,?? 1954, I have no hesitation in holding that his Court remained closed from the 14th of August, 1954, till the 27th of August 1954 and a plaint, which should have been presented on the 14th of August, 1954, must be held to have been presented within time if it was presented on the 28th of August, 1954‑ That the plaint under consideration was placed before the Senior Civil Judge, Gujranwala, on the 28th of August, 1954, is clear from the fact that he passed an order thereon on that day and even if there was any defect in the presentation of the plaint on account of the fact that it had been presented to the Duty Magistrate, Gujranwala, who could not, in law, receive it‑‑a defect for ? which the plaintiff was in no way responsible‑‑it was cured by reason of the fact that the plaint was placed before the Senior Civil Judge, Gujranwala, on the 28th of August, 1954." 7.?? In Rehmat Ali v. Noor Muhammad 1981 SCMR 159, it has been held that "plaint can be presented to Court or such officer as appointed by the Court in such behalf". In this case, the Civil Judge had authorised his Ahlmad to receive plaints in his absence. It was held that the plaint was validly presented, 8‑ In Khuda Bakhsh v. Muhammad Ismail PLD 1978,;Lah. 1049, it has been held that "section 23 of the Civil Courts Ordinance will apply and a plaint could be presented to another officer appointed by the Court".

9. In the result, we are of the opinion that the learned High Court has correctly decided the point of law. This petition has no force. The same is dismissed and leave to appeal is refused. . A.A./M‑1577/S??????????????????????????????????????????????????????????????????? ?????????????????????????????????????????????????????????????????????????????????????????? Leave refused.