KHALIL-UR-REHMAN Versus TALIZAR KHAN

1. MUHAMMAD AFZAL ZULLAH, CJ.---A defendant/vendees' side in a pre-emption matter has called in question the acceptance by the High Court of respondent/plaintiff's Constitutional (Writ) Petition.

2. The case relates to Sawat. On the recommendations of a Jirga the respondent's suit for pre-emption was decreed by an order of the Assistant Commissioner. The appellants failed before the Additional Commissioner in appeal. However, the appellants' Revision filed before the Provincial Government was allowed by an Additional Secretary and it was held that the respondent's suit was time-barred by virtue of the provisions of Para 255(1) of the Riwaj Nama of Sawat. The respondent challenged this order through a Writ Petition in the High Court and the same having been allowed leave to appeal was granted to examine; whether the High Court correctly interpreted section 4(2) of the PATA Special Provisions (Amendment) Regulation IV of 1976 which provided that notwithstanding anything contained in the Limitation Act, 1908 "a case shall not be referred to a Jirga if a civil suit in respect thereof would be barred under the Rewaj, Custom and usage having force of law".

3. It was also noted for examination "that if there was any doubt with regard to the application of one or the other law he emphasized, the one which was more in accord with the Islamic principles, should have been adopted". In this behalf the case of Haji Nizam Khan v. Additional District Judge, Lyallpur PLD 1976 Lahore 930 was also noted.

4. Learned counsel for the appellants has drawn our attention to PATH (Application of Laws) (Second) Regulation II of 1974, by virtue of section 3 thereof certain laws specified in its schedule were made applicable to Sawat. Items Nos.15 and 24 related to the application of the Limitation Act and the N.-W.F.P. Pre-emption Act. It is admitted position that both these laws provided the period of limitation for filing a pre-emption suit. By another legislation namely, PATA Civil Procedure (Special Provisions) Regulation II of 1975 in its section 4(2), it was provided that a Lase could not be referred to Jirga if a civil suit in respect thereof would be barred under the Limitation Act. This law was further amended by PATA Special Provisions (Amendment) Regulation IV of 1976. The so amended section 4(2) of Regulation II of 1975 reads as follows:-

5. "(2) Notwithstanding anything contained in the Limitation Act, 1908 (IX of 1908), a case shall not be referred to a Jirga if a civil suit in respect thereof would be time-barred under any Rewaj, custom or usage having the force of law."

6. The Rewaj on the law of limitation, it is agreed by the learned counsel, is contained in Para 255 of Rewaj/Dastur-ul-Amal. It reads as follows:-

7. It is admitted position that if the respondent/plaintiff's suit examined for purpose of limitation under the light either of the Limitation Act or of the N.-W.F.P. Pre-emption Act it would not undoubtedly, be time-barred and in that case this appeal would have to be dismissed. Learned counsel for the appellants, however, argued that the High Court fell into error in assuming that by not excluding the N.-W.F.P. Pre-emption Act in the amended section 4(2) of Regulation 11 of 1975, the legislature assumed that the provisions regarding limitation contained in the said Act would continue to apply. According to him the intention of the legislature was that the intended law of Limitation, whether in the one or the other enactment, applicable in N: W.F.P. stood excluded by the positive inclusion of the law of Limitation as contained in Rewaj, custom or usage having the force of law.

8. The learned counsel for the respondent while supporting the judgment of the High Court has contended that the omission of the words "or any other law in force in this respect" the expression "Limitation Act, 1908" in section 4(2) as ultimately amended was intentional; and even if it was not so, without supplying this omission, the provisions regarding limitation in the N.-W.F.P. Pre-emption Act could not be read as having been excluded by section 4(2). On face the argument of the learned counsel for the respondent seems plausible but on deeper analysis it has been found to be of no force.

9. . ????????? As the history of the relevant legislation shows, Regulation II of 1974 had prescribed that the Limitation Act and the Provisions of N.-W.F.P. Pre-emption Act were applicable, but while enacting section 4(2) of the original Regulation 11 of 1975-it was directed that a suit could not be referred to the Jirga if it was barred by the Limitation Act. Thus to an extent importance was being given to the Limitation Act, but it would not be necessary in this behalf also to hold that the N: W.F.P. Pre-emption Act was no more applicable as was intended by section 3 of Regulation II of 1974. It is not E necessary to examine any further that aspect of the matter; because, in our view, section 4(2) of Regulation 11 of 1975 as amended by Regulation IV of 1976 does not present any unsurmountable difficulty in assuming that the Statute Law of Limitation; whether contained in the Limitation Act or in the N: W.F.P. Pre-emption Act, stood excluded in so far as suits for pre-emption were concerned.

10. No doubt in the non-obstante clause of section 4(2), only the Limitation Act is mentioned and the N.-W.F.P. Pre-emption Act with reference to the provisions regarding Limitation contained therein has not been specifically excluded. But the matter would not end here. If the substantial part of Section 4(2) is read independently it means that the law of imitation as contained in Rewaj, custom or usage having the force of law, had been applied directly with such a command that a case could not be referred to the Arga at all if a civil suit in respect thereof would be time barred under the Rewaj dispensation. Further, it could be argued that by amendment (by Regulation IV of 1976) the Limitation Act stood excluded expressly and the provisions regarding limitation in the N.-W.F.P. Pre-emption Act stood' excluded by intendment. This supposition gets support from two other rules of interpretation. One; the N.-W.F.P. Pre-emption Act which was made applicable in 1974, is an earlier law as compared to section 4(2) of Regulation II of 1975 as amended in 1976, which is later law. And two; the N.-W.F.P. Preemption Act contains the general provision for all suits in the Province of N: W.F.P. while section 4(2) is a special law applicable to some cases and in some areas; therefore, the special provision in section 4(2) would exclude the application regarding limitation contained in the N.-W.F.P. Pre-emption Act--a general law in this context.

11. There is one more consideration which would finally determine this controversy; even if some doubt remained regarding the afore-discussed points of interpretation.

12. It was held in the case of Haji Nazam Khan PLD 1976 Lahore 930 which was later on affirmed in the case of Muhammad Bashir v. -The State PLD 1982 SC 139 that in sdch like situations even if there were two possible equal interpretations the one in accord with the Islamic principles would be preferred and adopted. 1n this case, admittedly, the provisions regarding limitation contained in Para 255 of the Dastoor-ul-Amal are in accord with Islamic law of Shufa. That being so, it is held that section 4(2) of the Regulation 11 of 1975 excludes, also the application of the provisions regarding limitation in the N.-W.F.P. Pre-emption Act. Accordingly, the provisions applicable in the present case would be those contained in Para 255 of Dastoor-ul-Amal.

13. The matter does not end here. Learned counsel for the respondent/pre-emptor contended that even if Para 255 is applied the respondent's suit would remain within limitation. He in particular relied on sub-para (2) of Para 255. It provided that if the pre-emptor at the time of sale was not in the State of Sawat and was in the settled areas he could file a suit within six months. And because the respondent was at the relevant time in the settled areas of Pakistan, therefore, his suit having been filed within six months could not be dismissed as time-barred. The learned counsel for the appellants contested the statement of fact made by the learned counsel for the respondent and relied upon the address and other particulars given in the respondent's suit itself; which, amply established that he was in the State of Sawat and not in the settled areas at the relevant time. According to learned counsel for the appellants, the respondent's case fell within Sub-para (1) of Para 255 which provided that if the pre-emptor is in the village where the property is sold he would have to file the pre-emption suit within a month otherwise it would not be entertainable. Admittedly, the suit was not filed within a month. That being so, it was rightly rejected as time-barred. Learned counsel is right.

14. In the light of the foregoing discussion this appeal is allowed. The impugned judgment is set aside, the judgment and order of the Provincial Government passed by its Home Secretary is restored. Thus the respondent's suit stands dismissed -as time-barred.

15. M.B.A./K-192/S ???????? Appeal allowed.