Friday, 25 March 2016

Formal Preliminary Decree is mandatory at times


PLJ 2014 Lahore 981
Present: Amin-ud-Din Khan, J.
versus
C.R. No. 356 of 2013, heard on 2.12.2013.
----S. 115, O. VII, R. 11 & O. XVI--Suit for partition--Rejection of plaint--Order of synonymous to preliminary decree was passed--Contesting and consenting written statements were filed--Property was gifted to all sons in equal shares--Admission on behalf of parties with regard to joint property--Formal preliminary decree was not prepared--Validity--There is no need to record the evidence as it is admitted between the parties that property was joint one and parties to the suit were owner of the property in equal share and virtually passed a preliminary decree--Such fact has been admitted in the written statement and trial Court mentioned in the impugned order that gift deed is available on the file which is an admitted document between the parties and when it has been pleaded by the parties that each party was joint owner to the extent of 1/3 in the suit property, therefore, trial Court dismissing the application under Order VII Rule 11 as well as Order XVI of the CPC passed a preliminary decree--For invoking jurisdiction of High Court under Section 115 of the CPC the petitioner is under obligation to point out any illegality, infirmity or material irregularity in the impugned order passed by trial Court but no such flaw has been shown by petitioner--Order passed by trial Court was in accordance with law.    [P. 983] A, B & C
Mr. Haris Azmat, Advocate for Petitioner.
Mr. Waqar-ul-Hassan Butt, Advocate for Respondent No. 1.
Mr. Abdul Rehman Khalil, Advocate for Respondent No. 2.
Date of hearing: 2.12.2013.
Judgment
Through this civil revision, petitioner who is Defendant No. 1 in a partition suit has challenged the order dated 31.01.2013 passed by learned Civil Judge Is Class, Lahore, who has not only dismissed the application under Order VII Rule 11 of the CPC for rejection of the plaint but also passed an order synonymous to a preliminary decree. The application under Order VII Rule 11 of the CPC was filed on the ground that list of witnesses has not been filed in accordance with Order XVI of the CPC.
2.  When the instant civil revision was entertained, learned counsel for the petitioner on 12.02.2013 made a statement that he will not press this petition to the extent of dismissal of application for rejection of plaint. Today learned counsel has argued that not only the application for rejection of plaint was dismissed but also virtually a preliminary decree was passed; that when the issues were framed and without recording of evidence the order impugned, whereby a preliminary decree has been passed, therefore the order is not sustainable under the law. Learned counsel has relied upon the judgments "2004 MLD 293 (Abdul Wahab and others vs. Ghulam Muhammad), 1982 SCMR 816 (Ali Muhammad vs. Muhammad Hayat and others) and 2011 YLR 3073 (Mst. Jannat and others vs. Mst. Maqsood and others)" to argue that after framing of issues without recording evidence the preliminary decree could not have been passed.
3.  On the other hand, learned counsel for the respondents has resisted the arguments of learned counsel for the petitioner and argues that there is absolutely no any illegality or infirmity in the impugned order which is not revisable by this Court; that when there was an admitted position, therefore the Court was competent to pass a preliminary decree at any stage and same has rightly been passed. Learned counsel admits that formal preliminary decree has not been prepared which can be ordered to the learned trial Court for preparation of the same.
4.  I have heard the learned counsel for the parties at length and also gone through the case law as well as the impugned order passed by learned trial Court and the pleadings of parties appended with this civil revision.
5.  The suit for partition was filed by the plaintiff-Respondent No. 1 on 24.11.2011. The plaintiff is one of the sons of late Justice (Retired) Karam Elahi Chauhan, whereas Defendants No. 1 and 2 are his brothers. Defendant No. 1 who is petitioner before this Court has filed  contesting  written  statement,  whereas  Defendant  No. 2 has filed consenting written statement. Learned trial Court framed the issues on 05.12.2012 and invited the parties to produce their evidence. The petitioner who is Defendant No. 1 in the trial Court moved an application under Order VII Rule 11 read with Order XVI and Section 151 of the CPC. It seems that at the time of hearing the arguments on the application learned trial Court scrutinized the pleadings as well as the record of case and while rejecting the application under Order VII Rule 11 and Order XVI of the CPC, came to the conclusion that there is no need to record the evidence as it is admitted between the parties that property is joint one and parties to the suit are owner of the property in equal share and virtually passed a preliminary decree. I have noticed that the claim of plaintiff that on the basis of registered gift deed No. 4651 dated 08.02.1979 the suit property was gifted by their father to all the three sons in equal shares, who are party to the suit. This fact has been admitted in the written statement and the learned trial Court mentioned in the impugned order that gift deed is available on the file which is an admitted document between the parties and when it has been pleaded by the parties that each party is joint owner to the extent of 1/3 in the suit property, therefore learned trial Court vide impugned order dated 31.01.2013 after dismissing the application under Order VII Rule 11 as well as Order XVI of the CPC passed a preliminary decree. In this view of the matter, the case law referred to by learned counsel for the petitioner is not applicable to the facts of this case. For invoking jurisdiction of this Court under Section 115 of the CPC the petitioner is under obligation to point out any illegality, infirmity or material irregularity in the impugned order passed by learned trial Court but no such flaw has been shown by the learned counsel for the petitioner. The order passed by the learned trial Court is in accordance with law.
6.  As the Court has scrutinized the matter and there is an admission on behalf of the parties with regard to joint property, therefore preliminary decree has rightly been passed. The only defect visible in the proceedings is that a formal preliminary decree has not been prepared. In this view of the matter, while dismissing this civil revision learned trial Court is directed to prepare a formal preliminary decree, so that a defect in the proceedings be cured. The parties are left to bear their own costs. Copy of this order be sent immediately to the learned trial Court for guidance.

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