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Civil Revision No. 99 of 1978, decided on 7th December, 1985.

‑‑0. XIII, r. 10‑Limitation‑Summoning of record‑Where certi fied copies of record were already on record and original record of suit was present on bass of which point relating to limitation could conveniently be disposed of, summoning of register of suits for determination of period of limitation, held, was not necessary. [Limitation].

‑‑S. 115‑Revisional jurisdiction, exercise of ‑‑Plea neither taken in written statement, nor stressed before Appellate Court and in grounds of revision‑Petitioner, held, could not be permitted to urge same in revisional jurisdiction of High Curt.

‑ O. IV, rr. 1 & 2‑‑Institution of suit‑Date of‑Suit, held, would be deemed to have been instituted in Court as order sheet, plaint and documents filed alongwith such plaint, including power‑of attorney, signed by trial Court would indicate and not on date of order for entry of such suit in register of suits.

‑‑ S. 31‑Pre‑emption suit‑Period for limitation‑Limitation for filing suit for pre‑emption, he1J, would commence from date of attestation of sale mutation.‑[Limitation].

---Ss. 12 (1) & 29 (2)(a)‑General Clauses Act (X of 1897), S. 9‑‑North‑West Frontier Province Pre‑emption Act (XIV of 1950), S. 31‑Pre‑emption suit‑Date of expiry of limitation‑Provisions of Limitation Act, 1908 and General Clauses Act, 1897, held, would be applicable to suits of pre‑emption with regard to limitation ‑Date of expiry of limitation would be in accordance with S. 12 (1) of Limitation Act, 1903.

S. Abdus Salam Sarwar for Petitioner.

Q. Abdur Rashid assisted by Shaukat Ali Khan for Respondent.

Date of hearing : 7th December, 1985.

Maulvi Abdul Latif was sole owner of the land represented by Kbasra Nos. 1736 and of 17/192 share in the land represented by Khasra No. 1735, situated in village Labarkot, Tehsil and District Mansehra. He sold this land in favour of Malik Aman for an ostensible price of Rs.26,000 and sale Mutation No. 6253 was got attested by him on 12‑10‑1976 in favour of vendee. This sale was pre‑empted by Mst. Bibi Amraizan on the ground that she being participator in immunities and appendages of the suit land and having land contiguous thereto had a superior right of pre‑emption as against vendee who did not possess these qualifications. She also alleged that the sale consideration paid for the suit land was only Rs. 6,000.

2. The suit was contested by the vendee on many grounds, which are fully reflected in the following issues framed by the learned trial Judge :‑ '

(1) Whether the plaintiff has a superior right of pre‑emption

(2) Whether the plaintiff has a cause of action

(3) Whether the suit is within time

(4) Whether the suit is properly valued; for the purposes of court‑fee and jurisdiction

(5) Whether the plaintiff is estopped

(6) Whether the plaintiff has waived his right of pre‑emption

(7) Whether the sum of Rs. 26,000 was fixed in good faith and actually paid as sale consideration of the suit land

(8) Market value"

(9) Relief.

On conclusion of the proceedings the learned trial Judge, vide his judgment and decree, dated 3‑5‑1978, answered issue No. I to favour of the pre‑emptor because the disputed land formed one block with which the pre‑emptor, being co‑Sharer in Khasra Nos. 2.s75/173g and 2397/1739, had contiguity. This qualification, was according to the learned trial Judge, was not possessed by the vendee. He also answered issues Nos. 2 to 4 in the affirmative and issues Nos. 5 and 6 in the negative. Issue No. was also answered by the learned trial Judge in the negative but since on issue No. 8 his finding was that the market value of the suit land was snore than what was mentioned in the sale mutation, he held that the market value of the suit land was Rs. 26,000. The suit was accordingly decreed on payment of this amount.

3. The vendee defendant. aggrieved as he was by the order made by the learned trial Judge, went up to appeal to the District Court, where, as is mentioned in paragraph 4 of the Judgment, the only issue pressed on behalf of the appellant was issue No. 3, which related to limitation. The learned lower Appellate Judge, like the learned trial Judge, found this issue in favour of the pre‑emptor holding that the suit having been instituted on 12‑10‑1977 was within time. He, consequently, by the judgment and decree, dated 8‑10‑1978, dismissed the appeal, leaving the parties to bear their own costs.

4. This revision is directed against the aforesaid two decrees of the learned two Courts below.

5. To complete the narration of facts, while this revision petition, was pending in this Court, the respondent‑plaintiff moved an application; under section 152, C. P. C. before the learned trial Judge for the correction of the decree‑sheet so as to insert therein the date of institution of the, suit as 1''‑10‑1977, which in the decree‑sheet, according to the applicant, was wrongly mentioned as 26‑10‑1977. This application was decided by the learned trial Judge in favour of the applicant without affording tae other party an opportunity of being heard. The order was challenged it the High Court by a revision (C. R. 20/79). Both the revision petitior were heard together by the High Court and the finding was that since the order, dated 8‑2‑1979 was made by the trial Judge behind the back of the other party, it was set aside and the whole case was remanded to the: trial Court to be decided afresh after hearing both the parties, The remand order was challenged by the vendee before the Supreme Court and vide the judgment, dated 15‑4‑1985 the appeal was accepted and th e case was remanded to the High Court for, deciding revision petition ac cording to law on the basis of record.

6. In the light or the aforesaid order of the Supreme Court, vendee‑r petitioner filed to this Court Miscellaneous Petition No. 452 of 1985 praying therein that Register No. 1 of the year 1977 relating to suits be summoned from the learned trial Judge copies of the relevant entries whereof were enclosed with the petition, This course was adopted to show that the suit was in fact instituted on 26‑10‑1977 and not on 12‑10‑1977, This petition was opposed by the respondent. This order would dispose of the miscellaneous petition as well as the, revision petition filed by the petitioner.

7. S. Abdul Salam Sarwar. Advocate appeared on behalf of the petitioner and Qazi Abdur Rashid and Shaukat Ali Khan, Advocates appeared on behalf of the respondent. They were heard and the record of the case was perused with their assistance.

8. In so far as the Miscellaneous Petition No. 452 of 1985 is concerned, the summoning of register No. 1 was not necessary because certified copies thereof were placed on the record alongwith this petition and the original record of the suit was also present in Court on the basis of which point urged in the revision petition relating to limitation, and also argued before me, could conveniently be disposed of. For this reason and also for the reasons which I would hereafter mention while dealing with issue No. 3, which was the only issue pressed before me, this petition is without substance.

9. The learned counsel for the petitioner very frankly, and rightly so, conceded that from the evidence brought on record it had not been proved that the vendee‑petitioner had taken possession of the suit land earlier than the date of attestation of sale mutation in his favour and that the concurrent finding of fact reached by the learned two Courts below on this point could be disturbed by this Court while exercising revisional jurisdiction. The learned counsel for the petitioner then attempted to argue that even if it be assumed that the suit ha3 been instituted in the Court on 12‑10‑1977, the suit should have bean dismissed for non compliance by the respondent of the first order made by the learned trial Court on 12‑10‑1977 wherein a direction was made in presence of the learned counsel for the plaintiff that the plaintiff be produced in Court on 26‑10‑1977. The learned counsel contended that the order dated 26‑10‑1977 made by the Court would show that instead of the plaintiff, her attorney (Min Afzal) had appeared in Court and that being a violation of the specific direction given by the Court in the first order, should have been visited with the penalty of dismissal of the suit. This point cannot be permitted to be urged by the learned counsel for the petitioner at this stage because it was neither taken up by the petitioner in his written defence filed before the trial Judge, nor was urged before him or before the learned lower Appellate Judge. and was also not taken up in the grounds of the revision petition filed in this Court.

10. The next argument of the learned counsel for the petitioner was that the suit would be taken to have been instituted in the Court on 26‑10‑1977 when the Court ordered its entry in the relevant register kept under the rules and that on that date the suit was barred by time. This argument was also without substance because the order‑sheet signed by the learned trial Judge, the plaint instituted in the Court and the docu ments filed alongwith the plaint, including the power‑of attorney given by the respondent‑plaintiff to her counsel, would show that the suit was instituted in Court on 12‑10‑1977 and not on 26‑10‑1977. On the late, mentioned date the Court had passed order for its entry in the relevant register and had also directed the plaintiff to deposit the pre‑emption money mentioned in the older. The defendant was also directed to be summoned for the next date of hearing fixed by the Court. In such circumstances, it could not be urged that 26‑10‑1977 was the date of the institution of the suit and not 12‑10‑1977 when the. suit was actually instituted in the Court.

11. The next argument of the learned counsel for the petitioner was 4hat the limitation had started to run from 10‑9‑1976 when the vendor had made statement before the Revenue Officer in. respect of the sale of the suit land in favour of the petitioner. In this connection, the learned counsel invited my attention to the words attestation of sale used in section 31 of the N.‑W. F. P. Pre‑emption Act and argued that the attesta tion of sale would mean the certification of the sale on the basis of the statement given by the vendor to that effect and not the attestation of mutation, This novel argument advanced by the learned counsel for the petitioner overlooks the language employed in clause (1) of section 31 of the Pre‑emption Act which is to be read as a whole and not in piecemeal. The reading of entire clause (1) of section 31 of the Act would lead to the only conclusion that the relevant date for the running of the limitation prescribed in section 31 in such a situation to which this 1clause is attracted would be the date of attestation of the sale mutation.

12. The last argument of the learned counsel for the petitioner was that the sale mutation having been attested on 12‑10‑1976, the limitation to file a Pre‑emption suit started on the same date and expired on 11‑10‑1977, and the suit having been instituted on 12‑10‑1977 was beyond time. This was the argument addressed before the learned two Courts below which was repelled on the ground that it overlooked the provisions of section 12 (1) of the Limitation Act. The learned counsel for the petitioner argued that the Pre‑emption Act being a special law, the provisions of section 12 of the Limitation Act were not attracted thereto and for that reason the day on which the sale mutation was attested could not be excluded while computing the period of limitation prescribed in section 31 of the relevant Act. When the attention of the learned counsel was invited to the provisions contained in clause (a) of subsection (2) of section 29 of the Limitation Act, read with section 9 of the General Clauses Act. and to the fact that there was no express exclusion of these provisions by the Pre‑emption Act, which the learned counsel could nod deny, he had no plausible explanation to offer. This argument was, there fore, without substance.

13. In the end, finding no merit in this revision petition, it is hereby dismissed with costs.

A. A. Revision dismissed.

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