IN THE SUPREME COURT OF PAKISTAN  
(Appellate Jurisdiction) 
 
 
 
PRESENT: 
MR. JUSTICE GULZAR AHMED  
MR. JUSTICE DOST MUHAMMAD KHAN  
 
Civil Appeal No.1207 of 2004 
a/w CAs 1208/04 and CAs No.577-578 of 2006 
(On appeal from the judgment dated 17.04.2001, passed by the Lahore 
High Court, Lahore in C.R.s No.376-377 of 1998) 
 
Mohammad Ijaz  
 
 
 
(in CAs No.1207-1208/04) 
Muhammad Hussain 
 
 
 
(in CAs No.577-578/06) 
….Appellants 
Versus  
 
Mohammad Shafi (decd.) through L.Rs. 
..Respondent in all cases  
 
For the appellants: 
 
Ch. Mushtaq Ahmad Khan, Sr. ASC 
(CAs 1207-1208) 
 
 
Mr. Ishfaq Qayyum Cheema, ASC 
 
(CAs 577-578): 
 
  
Mr. Muhammad Siddique Khan Baloch, ASC 
 
For respondents No.1-2: 
Mr. Taki Ahmed Khan, ASC 
(CAs No.1207-1208) 
 
For respondent No.3: 
 
Ex-parte 
(in call cases) 
 
Date of hearing:  
 
06.1.2016 
 
 
 
 
  
JUDGMENT 
 
 
Dost Muhammad Khan, J.— This single judgment shall also 
decide CA No.1208/04 and CAs No.577-578/06 because all have arisen 
from almost the same judgment of the Lahore High Court dated 
17.04.2001, through which Civil Revision Petitions No.376-D and 377-
D of 1987 were allowed and two separate suits for possession through 
exercise of right of pre-emption were decreed by reversing the 
judgment and decrees of the learned Additional District Judge, Camp 
at Narowal.  
2. 
  
Leave to appeal in all the four cases was granted to 
consider as to whether the suits, filed by the respondents/preemptors 
were presented to the competent court on 30.05.1963 and if it was not 
CAs 1207/04 etc. 
2 
so then, whether these had become time barred on the date when the 
same were received by the competent forum/Civil Judge, Narowal, 
after the said Court reopened for judicial work.  
3. 
  
The epitome of the relevant facts of the present 
controversy is that, the appellants in these two sets of appeals 
purchased land through two different transactions. In the first 
transaction, the land measuring 53-K, 4-M was purchased on 
31.05.1962 through mutation No.675 for sale consideration of 
Rs.4,000/-. Through the second transaction, the remaining land of the 
vendor, measuring 41-K, 16-M was purchased on 21.12.1962.  
4. 
  
The respondents herein, on the basis of superior right of 
pre-emption, instituted two separate suits on 30.5.1963, but before 
the then Tehsildar of the area, due to the absence of the Civil Judge. 
These suits were transmitted by the Tehsildar to the learned Civil 
Judge, who received the same on 5.6.1963 and were duly registered.  
5. 
  
The appellants/vendees contested both the suits on 
various legal and factual grounds however, after holding trial, both the 
suits were decreed by the Trial Court vide judgment and decrees dated 
10.12.1985. On appeals, filed by the appellants, the learned Additional 
District Judge, Camp at Narowal held that the suit, through which the 
first transaction of sale was pre-empted, was barred by time as in his 
view these were not presented or filed in a competent court while 
about the second suit the learned District Appellate Court held that 
after dismissal of the first suit, the vendees i.e. the present appellants 
had become co-owners in the suit property thus, they were possessing 
equal right of pre-emption and in this way superior right of pre-
CAs 1207/04 etc. 
3 
emption could not be claimed by the respondents/preemptors, thus, 
the second suit was also dismissed and both the appeals were allowed.  
6. 
  
The learned Judge in Chamber of the Lahore High Court, 
Lahore through the above Civil Revision Petitions, reversed the 
findings of the learned Additional District Judge and restored the 
judgments and decrees of the Trial Court and decreed both the suits. 
7. 
  
The entire controversy needed to be resolved is, the one 
discussed in para-2 of this judgment.  
8. 
  
Learned counsel for the parties also addressed arguments 
on this point alone.  
 
We have considered their valuable arguments and have carefully 
perused the record as well.  
9. 
  
It is an admitted fact that only one Civil Judge was posted 
at Narowal, which by then was having the status of Tehsil, or to say, 
sub-division. The filing of the suits before the Tehsildar in the absence 
of the Civil Judge from the station, was a regular practice therefore, 
filing of the present suits before him could not be taken as an 
exception.  
10. 
  
Learned ASC for the appellants argued with considerable 
vehemence that notification No.157/C-II-26 dated 10.02.1969, issued 
by the learned District Judge, Sialkot, who was competent to issue the 
same, could not be given retrospective effect to cover the presentation 
or filing of the present suits before the then Tehsildar, Narowal 
therefore, it was wrongly relied upon by the learned Judge in Chamber 
of the Lahore High Court.  
CAs 1207/04 etc. 
4 
 
To clarify the factual position for the purpose of drawing 
legitimate inference there-from, the said notification is reproduced 
below:- 
 
“I hereby authorize the Tehsildars Narowal and 
Shakargarh Tehsils who are receiving plaints in the 
absence of a Civil Judge in that area to sign challan forms 
for the deposit of rent and other amounts in consequent 
(consequence) of orders passed by the Civil Judge in that 
behalf.” 
The words employed in the notification strongly suggest to an 
unrebuttable extent that the Tehsildars Narowal and Shakargarh, both 
were already authorized in receiving plaints in the absence of Civil 
Judge in that areas however, through this notification they were 
conferred upon additional powers to sign challan forms for the deposit 
of rent and other amounts in consequence of orders passed by the 
Civil Judge in that behalf.  
11. 
  
Neither the appellants have brought on record any 
evidence to the contrary nor the learned Additional District Judge, who 
reversed the judgments and decrees of the Trial Court, has taken 
pains to probe into the matter in a legal manner by tracing out the 
origin of the authorization of Tehsildars by the District Judge of the 
Sessions Division, under Rule 7(c) of the High Court (Lahore) Rules 
and Orders, Chapter-I, Part-B, read with section 23 of the Civil Court 
Ordinance, 1962.  
12. 
  
It must always be kept in mind that the establishment of 
judicature has been ordained by Article 175 of the Constitution. In 
Sub-Article (3) of Article 175 ibid  it was mandatory for the State to 
separate the Judiciary from the Executive progressively within the 
initial period of five years however, this period was extended to 
CAs 1207/04 etc. 
5 
fourteen years by the then Martial Law Administrator, by inserting the 
amendment through Presidential Order No.14 of 1985 however, after 
the landmark judgment of this Court in the case of Government of 
Sindh v. Sharaf Faridi (PLD 1994 SC 105) the Judiciary was 
ultimately separated from the Executive Branch in 1994-95 due to the 
written undertakings, given by the Federal Government and all the 
Provincial Governments.  
13. 
  
The reported precedents of this Court would show that 
presentation of plaints before the Tehsildar, where no other judicial 
officer of low grade was available, was a consistent practice in vogue 
in the said days when the Executive limb of the State was also 
exercising judicial powers. It may not be out of place to mention that 
Tehsildar possesses and exercises two-fold jurisdiction. Under the Land 
Revenue Act, he acts as a Revenue Officer which falls within the 
administrative province of the revenue authorities however, the same 
Tehsildar was graded as 1st Class or 2nd Class Magistrate/Revenue 
Courts under the provisions of The Punjab Tenancy Act, 1887. In 
this regard, reference may be made to the case of Elahi Bakhsh v. 
Mst. Balqees Begum [1992 PSC 1655(b)], therefore, we are 
unable to subscribe to the plea taken by the learned counsel for the 
appellants.  
14. 
  
As already pointed out that for the resolution of civil, 
criminal and revenue disputes, different classes of courts have been 
constituted through different enactments. In some categories of cases, 
these different categories of courts exercise almost the same and 
similar jurisdiction but procedure for that is differently provided. In 
this regard, reference may be made to a revenue court where a title 
dispute is raised then the revenue officer or the Collector may frame 
CAs 1207/04 etc. 
6 
any issue and decide the title himself or in the alternative, may refer it 
to the Civil Court for determination. Similarly, with regard to the 
dispute over immovable property, Magistrate of 1st Class exercises 
powers to regulate the possession of it and confers it on the other 
party like the Civil Court does it u/Ss. 8 and 9 of the Specific Relief 
Act, 1877. 
15. 
  
As the present suits were instituted in the early days when 
Sessions Divisions were few in the then West Pakistan and only camp 
courts were held at Tehsil Headquarters at different intervals, hence 
we entertain no amount of doubt that on the crucial date, the lonely 
Civil Judge posted at Narowal, was not present and similarly the 
Tehsildar was much earlier authorized to receive the plaints, however, 
through the ibid notification of 1969 extra powers were conferred upon 
him to deal with urgent matters because of the temporary absence of 
Civil Judge.  
16. 
  
The litigants are the major stakeholders in the justice 
system. It is because of the court fee paid, different types of fine 
recovered and cost imposed upon them, a handsome revenue is 
generated for the State from their pockets thus, it is the constitutional 
and legal obligation of the State to provide the maximum facilities to 
the litigants for the redressal of their grievance through different 
courts duly constituted. It was in this background that the Lahore High 
Court had authorized the District & Sessions Judges to confer upon any 
officer, powers of receiving plaints to sign and endorse forms for the 
deposit of rent and other amounts in the temporary absence of the 
Civil Judge from the Tehsil Headquarters.  
CAs 1207/04 etc. 
7 
17. 
  
Just for a moment, if it is assumed, albeit not correct, that 
the then Tehsildar was not competent to receive the plaint and the 
learned District & Sessions Judge of District Sialkot had also not issued 
any notification or public notice to directly receive such plaints, etc. 
then, for such omission the respondents/plaintiffs cannot be blamed 
nor they can be held to be at fault because it was/is the legal 
obligation of the court to facilitate the litigants, approaching the courts 
conveniently. There is a well-known maxim “Actus Curiae Neminem 
Gravabit” (an act of the court shall prejudice no man) thus, where 
any court is found to have not complied with the mandatory provision 
of law or omitted to pass an order, required by law in the prescribed 
manner then, the litigants/parties cannot be taxed, much less 
penalized for the act or omission of the court. The fault in such cases 
does lie with the court and not with the litigants and no litigant should 
suffer on that account unless he/they are contumaciously negligent 
and have deliberately not complied with a mandatory provision of law. 
(see PLD 1972 SC 69). Even if it is held that filing of the plaint before 
the Tehsildar was not valid then, section 4 of the Limitation Act and 
Rules of Propriety will come into play and no limitation shall run 
against such party till the date, the competent court i.e. of Civil Judge 
reopened for judicial work.   
 
The provision of S.4 of the Limitation Act does not extend or 
enlarge the period of limitation, prescribed under the law however, it 
certainly stops the clock to tic forward to the prejudice of the litigant 
due to closure of the Court and permit him/them to file the 
plaint/appeal/application on the re-opening of the Court, albeit the 
period of limitation provided there-for had expired on the day when 
the court was closed. In the present case, the evidence does furnish 
CAs 1207/04 etc. 
8 
proof that the Presiding Officer was on tour to another Tehsil/District 
and was holding Camp Court there, obliging the present respondent to 
have approached him in case he was reachable for the filing of the 
plaints. In any case, the respondents/plaintiffs cannot be held to have 
committed any fault or default in presenting the plaint to the 
Tehsildar, who was regularly receiving the same, duly authorized by 
the District & Sessions Judge by then.  
18. 
  
In this case, the learned Civil Judge without any exception 
or reservation received the plaints from the Tehsildar and registered 
the same in the relevant register, which is another fact, suggesting 
that the practice of receiving the plaints by the Tehsildar was well in 
the field and was duly acknowledged, therefore, in our considered view 
the contention of the learned ASC for the appellants is absolutely 
unfounded and liable to be rejected. In this regard, reference may be 
made to the case of Rashad Ehsan and others v. Bashir Ahmad 
(PLD 1989 SC 146). Similar proposition was resolved by this Court in 
the above manner in the case of Muhammad Yar v. Muhammad 
(2003 SCMR 1772) where a plethora of authorities, right from the 
Indian jurisdiction upto 1968 were relied upon.  
19. 
  
We fully endorse the view taken by the learned Judge in 
Chamber of the Lahore High Court that on one hand the learned 
Additional District Judge held almost a similar view but jumped at the 
conclusion without any justification by holding that because due to 
dismissal of the 1st suit, the vendees/appellants herein had become co-
owners in the suit land and have equal right therefore, the superior 
right of preemption of the respondents/plaintiffs has been brought to 
naught and was not enforceable. This was rightly held to be a wrong 
CAs 1207/04 etc. 
9 
conclusion against the statutory provisions of law and was rightly set 
aside by the High Court.  
20. 
  
During the course of hearing of these appeals, we have 
observed that right from the beginning upto this Court, the 
appellants/vendees have taken shelter behind mere technicalities to 
defeat the right of pre-emption of the respondents/plaintiffs, although 
certain technicalities of law, where right is vested in the opposite party 
by efflux of time or where public policy demands so, may become 
relevant however, the same cannot be given any preference by 
defeating the ends of justice,  depriving a party of substantive rights, 
which accrued to it under the law and principle of justice.  
In this regard the famous principle laid down in the case of 
Imtiaz Ahmad v. Ghulam Ali (PLD 1963 SC 382) is reproduced 
below: 
“…the proper place of procedure in any system of 
administration of justice is to help and not to thwart the 
grant to the people of their rights. All technicalities have 
to be avoided unless it be essential to comply with them 
on grounds of public policy…..Any system which by giving 
effect to the form and not the substance defeats 
substantive rights (and) is defective to that extent.” 
21. 
  
Judged and discussed from all angles, we are entertaining 
no amount of doubt that the learned Judge in Chamber of the Lahore 
High Court has fairly comprehended the correct legal position, 
according to the facts and circumstances of the case and has applied 
the correct principle of law to it, to which no exception can be taken on 
any ground whatsoever.  
CAs 1207/04 etc. 
10
22. 
  
Accordingly, all these appeals are found bereft of legal 
merits, both on factual and legal premises. Thus, the same are 
dismissed, with no order as to costs.  
 
Judge  
 
 
 
 
Judge  
Islamabad, the   
6th January, 2016 
Nisar /-‘ 
 
 
 
Approved For Reporting. 
