FAZAL ELAHI vs NOOR AHMED and 2 others

' MIAN SAQIB NISAR, J.---On 21-10-2004, the petitioner brought a suit for the premption, against respondent No,1, whereupon, the same day, the learned trial Court, issued summons to respondent No,1 for 20-11-2004 and directed the petitioner to deposit the Zar-e-Soim within 30 days, in the precise words of the order the petitioner made the deposit on 20-11-2004. But on that date, the Court dismissed the petitioner's suit holding "instant suit was filed on 21-10-2004, plaintiff was ordered to deposit Zare-e-Soem within 30 days of filing of instant suit. Zar-e-Soam was deposited on 20-11-2004 on 31st day of filing of suit i,e, beyond the period fixed in section 24(1) Punjab Pre- emption Act, 1991. So the suit is not maintainable because of clear violation of enacted law. So instant suit is dismissed under section 24(2) of Punjab Pre-emption Act, 1991", the petitioner challenged this through appeal which has been dismissed on 29-3-2005, the learned Court of appeal has relied upon the judgment reported as Muhammad Jehangir v. Muhammad Abbas and 2 others 2004 CLC 538, while concluding that the period of 30 days should be counted by including the day of the institution of the suit and that the period of 30 days cannot be extended by the Court. Hence this writ petition.

2. Learned counsel for the petitioner has contended that the deposit of Zar-e-Soim has been made by the petitioner within 30 days' time, as provided by the provisions of section 24 of the Punjab Pre- emption Act, 1991 and that the time. Of 30 days has to be reckoned from the day following the one, on which the Court has passed the order under section 24. In this behalf, he has placed reliance on the cases reported as Ghulam Mustafa Khan v. Ashiq Hussain and others 2003 CLC 1661; Malik Aman v Mst. Bibi Amraizan PLD 1986 Pesh. 58; Ghulam Hassan and others v. Jamshaid Ali and others 2001 SCMR 1001.

3. Conversely, the learned counsel for the respondent has argued that according to the law laid down in the case reported as Muhammad Jehangir v. Muhammad Abbas and 2 others 2004 CLC 538, thirty days are to be counted from the date, when the suit has been instituted and as it was filed on 21-10-2005, the order was also made on that date,resultantly, counting the said day, the deposit should have been made till 19-11-2005 and because it was delayed by one day, therefore, the suit has been rightly dismissed by the learned trial Court under section 24(2) of the Punjab Pre- emption Act, 1991, (the Act).

4. Heard. The precise question to be considered and determined in this case, is whether the day on which the order of Zar-e-Soim was passed by the Court, should be excluded or included. Section 24(1) of the Act, empowers rather cast a duty upon the Court to pass an order directing the plaintiff to make the deposit within such time, as may be fixed by the Court. However, a rider under proviso to this section has been placed upon the authority of the Court that such time shall not exceed 30 days (of the filing of the suit). The word "of" appearing in this proviso is of an immense significance and therefore needs proper interpretation. According to the Black's Law Dictionary Sixth Edition at page 1080, the word "of" means "A term denoting that from which anything proceeds; indicating origin. The word has been held equivalent to after; at, or from." As per Chambers Concise 20th Century Dictionary at page 671, the word has been defined to mean "from;"Thus on the basis of the above meanings, it is clear that the expressions/words "of", "from" or "after" are inter-changeable and analogous terms, which have been used by the legislature in the different statutes but to signifying the same meaning, therefore, when the word "of" is construed in its proper context, as used in the proviso, it shall mean that 30 days' time, shall be reckoned after the day of the institution of the suit. The above interpretation of this word is also in consonance B with the provisions of section 8 of the West Pakistan General Clauses Act, 1956, which reads as below:--- "It shall be sufficient, for the purpose of excluding the first in a series of days or any other period of time to use the word "from" and for the purpose of including the last in a series of days or any other period of time to use the word "to"."

According to the above section, the first day in the series of days providing a particular period for doing same act or performing a duty, has to be excluded.

5. Almost a similar proposition came under consideration of this Court in the case reported as Imran Ahmed and another v. The District Judge, Dera Ghazi Khan and 2 others 2003 CLC 1597 and in paragraph 11 of the judgment, the Court has held as such that "The day when the order was passed i,e, 1-10-1999, has also to be excluded under section 8 of the West Pakistan General Clauses Act, 1956. The rationale behind this provision of law appears to be that the day when the order is passed should not be counted, because, it is possible that the order is passed at the tail-end of the day and the litigant is not in a position to avail that day in compliance with the order, therefore, through this provision, a benefit is given to a litigant which is his right." Another judgment of this Court reported as Ghulam Mustafa Khan v. Ashiq Hussain and others 2003 CLC 1661 also has ordained to exclude the day from 30 days period, on which, the order itself was passed. Thus on account of the reasoning given in paragraph No,4 and on the basis of these two judgments, I am constrained to hold that the day, on which the order has been passed by the Court, directing the pre-emptor to make the deposit, should be excluded and thus by exclusion thereof, the deposit made by the petitioner in this case, shall be within 30 days time and resultantly, no delinquency and default can be attributed to the petitioner, therefore, the dismissal of the petitioner's suit by the trial Court for noncompliance of the deposit of Zar-e-Soim, is illegal and without jurisdiction, and the judgment and decree in appeal upholding that order also cannot be sustained, resultantly, this petition is accepted and the impugned order and the judgment and decree are set aside.