2008 SCMR 1685 (PLP)

FAQIR MUHAMMAD KHOKHAR, J.

On 26-10-2001,, respondent No.1 filed a suit for possession, of the-suit land measuring 20 Kanals and 3 Marlas through pre-emption which had been purchased by the appellants and respondents Nos.2 and 3 through registered sale-deed dated 30th June, 2001 for a consideration of Rs.4,50,

000. The suit came up for hearing on 27-10-2001 before the Civil Judge, Daska, District Sialkot, who directed the respondent No.1 to deposit a sum of Rs.1,50,000 being 1/3rd (Zar-e-Soem) of the sale price. The same was deposited on 26-11-2001. On the divergent pleadings of the parties, the trial Court framed as many as 8 issues. After the statement of respondent No.1/P.W-1 was partly recorded, the appellants moved an application for dismissal of the suit on the ground that the respondent No.1 had failed to deposit 1/3rd of the sale price within a period of thirty days of the date of filing of the suit as required by section 24 of the Punjab Pre-emption Act, 1991 (herein-after called the Act). The trial Court allowed the application and dismissed the suit, vide judgment dated 22-2-2006 in that the deposit of the 1/3rd of sale price was made on 26-11-2001 with a delay of two days. The appeal of the respondent No.1 was also dismissed by the Additional District Judge, Daska, by judgment dated 2-11-2006. Therefore, he filed Civil Revision No.218 of 2007 which was accepted by a learned Single Judge of the Lahore High Court, Lahore, vide impugned judgment dated 27-6-2007.

2. The learned counsel for the appellants submitted that for computing period of thirty days for deposit of 1/3rd of the sale price fixed by subsection (1) section 24 of the Act, the day of filing of the suit was also to be included. The last date for deposit of the amount was 24-11-2001. Therefore, the deposit of the amount by respondent No.1 on 26-11-2001 with a delay of two days was invalid. Reliance was placed on the cases of Raja v. Tanvir Riaz and others 2006 CLC 1455 and Syed Mushtaq Hussain v. Jewan and 4 others 2007 MLD 1062 (Lahore).

3. On the other hand, the learned counsel for the respondent No.1 argued that the day of institution of the suit and last date for deposit being Sunday were to be excluded. Therefore, the plaintiff was entitled to deposit the amount on the day the Court was re-opened in view of sections 8 and 9 of the West Pakistan General Clauses Act, 1956. Reliance was placed on the cases of Fazal Elahi v. Noor Ahmed and 2 others PLD 2006 Lahore 318, Muhammad Yousaf and 3 others v. Zafarullah and another 1992 SCMR 117, PLD 1993 SC 204, Mian Muhammad Talha Adil v. Mian Muhammad Lutfi 2005 SCMR 720, Ghulam Mustafa Khan v. Ashiq Hussain and others 2003 CLC 1661 and Abdul Wahid and others v. Sardar Ali and others 2000 SCMR 650.

4. We have heard the learned counsel for the parties at length and have also perused the available record with their assistance. The provisions of section 24 of the Act being relevant are re-produced below:

"

24. Plaintiff to deposit the sale price of the property.

(1) In every suit for pre-emption, the Court shall require the plaintiff to deposit in such Court one-third of the sale price of the property in cash within such period as the Court may fix: Provided that such period shall not extend beyond thirty days of the filing of the suit: Provided further that if no sale price is mentioned in the sale-deed or in the mutation, or the price so mentioned appears to be inflated, the Court shall require deposit of one-third of the probable value of the property. (2) Where the plaintiff fails to make a deposit under subsection (1) within the period fixed by the Court, or withdraws the sum so deposited by him, his suit shall be dismissed. (3) Every sum deposited under subsection (1) shall be available for the discharge of costs. (4) The probable value fixed under subsection (1) shall not affect the final determination of the price payable by the pre-emptor."

5. It would appear from the above provisions that in every suit for pre-emption it is the Court which is to require a plaintiff to deposit 1/3rd of the sale price of the property within such period as may be fixed by the Court. The proviso to section 24(1) further stipulates that period fixed by the Court shall not extend beyond thirty days of the filing of the suit. The provisions of section 24(1) do not operate proprio vigore as the deposit is to be made by a plaintiff under the order of the Court and not otherwise. The word "require" used in section 24 (ibid) makes it abundantly clear that-the deposit of the amount is to be made under the direction of the Court. There may be cases in which the suit of the plaintiff, after its institution, may not be taken up for hearing by the Court before expiry of the limitation period. The plaintiff has no control over the regulation of proceedings of the Court. Therefore, there can be no justifiable ground to penalize a plaintiff for an act of omission of the Court itself.

6. A similar question was considered in the case of Ghulam Hussain v. Jamshaid Ali 2001 SCMR 1001. In that case the plaintiff had filed on 26-10-1991 a suit for possession through pre-emption which remained pending up to 13-1-1992 when the Court for the first time directed the plaintiff to deposit 1/3rd of sale price by 15-1-1992. The direction of the Court was complied with. Nevertheless, the suit was dismissed under section 24(2) of the Act. It was held that a duty was cast upon the Court to require the plaintiff to deposit 1/3rd amount of sale price within thirty days from the institution of the suit. But failure on the part of the trial Court would not entail a penalty on the ground that the plaintiff had not deposited 1/3rd sale price within 30 days of the filing of the suit. It was held that in such like cases, the maxim `Actus curiae neminem gravabit' (an act of the Court shall prejudice no man) was attracted in view of law laid down in the cases of Rashid Ehsan and others v. Bashir Ahmad and another PLD 1989 SC 146, Iftikhar Baig v. Muhammad Azam and others 1996 SCMR 762 and Abdul Rashid v. Abdul Salam and others 1991 SCMR 2012. A somewhat similar view was taken the case of Mian Muhammad Talha Adil v. Mian Muhammad Lutfi 2005 SCMR 720.

7. In Fazal Elahi v. Noor Muhammad and 2 others PLD 2006 Lah. 318, the provisions of section 24 were elaborately examined. It was observed that the words `of', `from', or `after' were sometimes interchangeable and analogous terms which had been used by the legislature in different statutes but signifying the same meaning. The word of used in first proviso of section 24 of the Act, 1991, was to be construed in its proper context and meaning in that thirty days' time had to be reckoned after the day of institution of the suit.

8. In Words and Phrases, Permanent Edition 1972, Volume 29, page 341, it is stated as under:

"Where, in prosecution for selling cocaine under statute regulating sale of coca leaves or any derivative thereof, witness said co-caine was active alkaloid of coca leaves, held, "of" as here employed, meant "from" and that alkaloid from coca leaves necessarily is derivative of coca leaves. State v. Wrong Fong 241 P.1072, 1074, 75 Mont. 81." At page 344 it is stated that:-- "The word "of" as well as the word "from" is used as a term of exclusion. Haight v. Hamor 22 A. 369, 372,83 Me. 453."

9. By section 8 of the West Pakistan General Clauses Act, 1956, it is provided that it shall be sufficient for the purpose of excluding the first in series of days or any other period of time to use the word `from' and for the purpose of including the last in series of days or any other period of time to use the word `to' section 9 of the said Act also permits the filing of a suit on the first day of re-opening of the Court where limitation period expires on a day when the Court is closed on account of a public holiday reference may usefully be made to the case of Obaid -ud-Din and others v. Faiz Muhammad Khan and others 1987 SCMR

216. It was Sunday on 25-11-2001 (holiday). Therefore, the deposit was validly made on the next day i.e. 26-11-2001. In our view, by enacting first proviso to section 24 of the Act, 1991 the legislature does not seem to have expressed any intention contrary to the provisions of sections 8 and 9 of the West Pakistan General Clauses Act, 1956. The cases referred to by the learned counsel for the appellants do not lay down the correct law. The impugned judgment of the High Court is unexceptionable.

10. For the foregoing reasons, we do not find any merit in this appeal, which is dismissed. However the parties are left to bear their own costs. M.B.A./N-8/SC Appeal dismissed.