Maulana NURULHAQ vs IBRAHIM KHALIL

' QAZI MUHAMMAD FAROOQ, J.---By virtue of a registered sale deed dated 26-4-1993 a house situated in Peshawar City was purchased by one Ibrahim Khalil, respondent herein, for an ostensible price of Rs,70,000. A suit for possession of the house through pre-emption was filed by Maulana Noor-ul-Haq on 18-11-1993 with the allegations that the vendor had sold the same secretly and had not spelt out his intention to sell through a notice, he was possessed of a superior right of pre-emption being Shafi-Khalit' and 'Shafi-Jar', the sale price mentioned in the sale deed was fancy and had been inserted therein to fend off pre-emption and the requisite Talbs were made by him in accordance with law.

2. The vendee instead of filing a written statement submitted an application for rejection of the plaint on the ground that the suit was barred by limitation having been filed beyond the prescribed period of 120 days. The application was allowed by the learned. Trial Court, vide order dated 20-11- 1994, and the plaint was rejected under Order VII, Rule 11(d), C.P.C. The order was upheld by the learned Additional District Judge, Peshawar as well as the Peshawar High Court. Feeling aggrieved, the preemptor has filed this petition for leave to appeal.

3. The impugned judgment of the Peshawar High Court was assailed by the learned counsel for the petitioner on three grounds. First, that the provisions of Order VII, rule 11(d), C.P.C. Can be invoked only where a suit is 'barred by any law' and not where the suit is barred by limitation. Secondly, where a sale deed is registered but the Registrar concerned does not give public notice in respect of such registration as envisaged by section 32 of the N.-W.F.P.. Pre-emption Act, 1987, which is not redundant, then the period of limitation is to be computed from the date of knowledge the pre- emptor and not from the date of registration of the sale deed as provided by section 31 ibid. Thirdly, the sale transaction was effected on 26-4-1993 surreptitiously and the petitioner had got knowledge of the same on 2-11-1993 and had filed the suit on 16-11-1993 after making the requisite 'Talbs'. The suit having been filed within 120 days of knowledge by the petitioner was well within time,

4. The learned counsel for the caveator, on the other hand, submitted that in the absence of penal clause the provisions of section 32 of the N.-W.F.P. Pre-emption Act, 1987 (hereinafter referred to as the Act) were directory and not mandatory and it was specifically mentioned in clause (a) of section 31 of the Act that the period of limitation would run from the date of registration of the sale deed. It was further submitted that the plaint was rightly rejected as the suit was badly barred by limitation.

5. Before adverting to the points for determination it is necessary to reproduce sections 31 and 32 of the Act. Section 31 reads as under:--- "Limitation.--The period of limitation for a suit to enforce a right of pre-emption under this Act shall be one hundred and twenty days from the date---

(a) of the registration of the sale-deed; or

(b) of the attestation of the mutation, if the sale is made otherwise than through the registered sale-deed; or

(c) on which the vendee takes physical possession of the property if the sale is made otherwise than through the registered sale-deed or the mutation; or

(d) of knowledge by the pre-emptor, if the sale is not covered under paragraph (a) or paragraph

(b) or paragraph (c)".

' Section 32 is worded thus:--- "Notice.-

(1) The Registrar registering the sale-deed or the Revenue Officer attesting the mutation of a sale shall, within two weeks of the registration or attestation, as the case may be, give public notice in respect of such registration or attestation.

(2) The notice under subsection (1) shall be deemed sufficiently given if it be stuck up on the main entrance of a mosque and on any other public place of the village, city or place where the property is situated: ' Provided that if the property is situated in a city, the notice shall also be given through a newspaper having large circulation in such city.

(3) The charges for the notice under subsection (2) shall be recovered from the vendee by the Registrar or the Revenue Officer, as the case may be, at the time of registration or attestion of mutation."

6. The first point for determination is whether the plaint can be rejected under Order VII, rule 11(d), C.P.0 if the suit is time-barred. The answer is in the affirmative. The contention raised by the learned counsel for the petitioner is too naive to prevail. The bar of limitation is traceable to the Limitation Act, therefore, it goes without saying that the expression 'barred by any law' includes the law of limitation. However, there is no need to discuss this point any further as it stands resolved by the judgment of this Court reported as Mumtaz Khan v. Nawab Khan and 5 others 2000 SCMR wherein it has been held that clause (d) of Order VII, rule 11, C.P.C. Is applicable where the suit is time-barred, and Hakim Muhammad Buta and another v. Habib Ahmed and others (PLD 1985 SC 153) wherein it has been observed that if from the statement in the plaint the suit appears to be barred by limitation the plaint shall have to be rejected under Order VII, rule 11, C.P.C.

7. The next point for determination relates to the date from which the period of limitation for a suit to enforce a right of pre-emption arising from a registered sale-deed is to be computed. The explicit and mandatory provisions of section 31 of the Act leave no room for doubt that in case of a sale effected through a registered sale deed the period of one hundred and twenty days shall be computed from the date of registration of the sale deed. The contention that if the Registrar fails to issue public notice envisaged by the mandatory provisions of section 32 of the Act the period of limitation is to be computed from the date of knowledge by the pre-emptor is misconceived. Such a provision is neither contained in section 31 of the Act nor can be read into it in view of settled law that Court cannot supply 'casus omissus'. A comparative study of sections 31 and 32 of the Act would make it manifest that the provisions with regard to issuance of public notice by the Registrar contained in section 32 had no nexus with the period of limitation prescribed by section 31 for filing a pre-emption suit in respect of sale transaction effected through a registered sale deed and is meant to provide an extra source of knowledge for making 'Talb'-i-Mowathibat' and an alternate time frame for making Talb-e-Ishhad' in accordance with subsection (3) of section 13 of the Act which reads as follows:--- "Subject to his ability to do so, where a pre-emptor has made Talbe-e-Mowathibat under subsection (2), he shall as soon thereafter as possible but not later than two weeks from the date of notice under section 32 or knowledge, whichever may be earlier, make Talb-e-Ishhad by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgement due to the vendee, confirming his intention to exercise the right of preemption: ' Provided that in areas where due to lack of post office facilities it is not possible for the pre-emptor to give registered notice, he may make Talb-e-Ishhad in the presence of two truthful witnesses."

There is yet another aspect of the matter to which it is necessary to refer to section 32 of the Act appears to be mandatory, in view of the expression 'shall' used therein, but in fact is directory for want of a penal clause. No doubt there exists no faultless acid test or a universal rule for determining whether a provision of law is mandatory or directory and such determination by and large depends upon the intention of Legislature and the language in which the provision is couched but it is by now firmly settled that where the consequence of failure to comply with the provision is not mentioned the provision is directory and where the consequence is expressly mentioned the provision is mandatory. It was held in Niaz Muhammad Khan v. Mian Fazal Raqeeb (PLD 1974 SC 134) that as a general rule a statute is understood to be directory when it contains matters merely of direction, but it is mandatory when those directions are followed by an express provision that in default of following them the facts shall be null and void. In Major Shujat Ali v. Mst.

Surrya Begum (PLD 1978 SC (AJ & K) 118) it was held that in the absence of a penalty for failure to follow the prescribed procedure the provisions are to be taken to be directory and not mandatory.

The provisions of section 32 of the Act being directory cannot in any manner override or dilute the provisions of section 31 of the Act which are mandatory by all standards.

' As regards the third contention it will be enough to say that the plaint was rightly rejected as the suit having been brought beyond one hundred and twenty days of registration of the sale deed was time-barred and the allegation that the transaction was effected in a clandestine manner overlooks this legal position that registration of a sale deed is a notice to public-at-large. For these reasons, leave is declined and the petition is dismissed.