1972 PLP 410 (SCMR)

ANWARUL HAQ, J.‑In a suit for partition and separate possession of her share in the ancestral property, the respondent, Mst. Shahzada Begum, was granted a preliminary decree by the learned Senigr Civi17udge, Sahiwai, on 14‑4‑62 for 7/24 shares. The petitioner, who is a step‑brother of the respondent, agitated against this preliminary decree right up to the Supreme Court but failed. When the case went back to the trial Court for passing the final decree, it was dismissed in default on 6‑5‑65 under Order IX, rule 8 of the C. P. C. owing to the absence of the plaintiff: Thereupon, the plaintiff‑respondent filed an applica tion under section 151 of the C. P. C. for the restoration of the suit, which application was granted by the learned Administrative Civil Judge, by his order dated the 15th May 1968, holding that after the passing of the preliminary decree the provisions of Order IX could not be invoked. The petitioner invoked the revisional jurisdiction of the High Court, but his revision petition was dismissed by a learned Single Judge on 2‑3‑1972, observing that the order of the learned trial Court was‑unexceptionable and had the support of Lachmi Narayan Manvary v. Balmakund Marwary (AIR 1924 P C 198). The learned. Judge dealt with the merits of the case in spite of the fact that the petitioner and his counsel were absent. The petitioner, thereafter, filed; Review Petition No. 31/C of 1972, which was also dismissed by the same learned Judge on the 20th April 1972, stating that the revision petition had not been dismissed in default but was disposed of on merits. Before we notice the contentions raised on behalf‑of the petitioner, we observe that this petition is, barred by 59 days. The explanation given on behalf of the petitioner is that on the date when the revision petition was heard in the High Court, namely, the 2nd of March 1972, the petitioner and his counsel were absent as the name of the petitioner's counsel was not shown in the cause‑list of the High Court for that day, and that sub sequently he filed a review petition and then time was taken in obtaining certified copies of the impugned orders. In view of this explanation we condone the delay and proceed to consider the matter on merits. The first point raised by the learned counsel is that the learned Single Judge has erred in not restoring the revision petition which was heard in the absence of the petitioner on the 2nd March 1972. There is 1ardly any substance in this submis sion, as it appears, although by implication, that the learned Judge did not accept the, explanation given on behalf of the petitioner for the absence of his counsel on the 2nd March 1972 In the second place, he has disposed of the revision petition on merits on the authority of a Privy Council judgment, and there fore, it would have been a sheer technicality to restore the revision petition and then dismiss the same on the ground already stated in the order of the 2nd March 1972. As regards the applicability of the provisions I of Order IX, rule 8 of the C. P. C., the learned counsel has placed reliance op certain observations appearing in Muhammad Latif v. Muhammad Hafiz (P L D 1954 F C' 184), to the effect that a partition suit, in which only a pre liminary decree has been passed, is still a pending suit and the rights of the parties have to be adjusted at the time of the final decree. We find that these observations were made in an altogether different context, namely; that after the passing of the preliminary decree one of the heirs had died, thus necessitating an amendment of the preliminary decree as regards the shares of the remaining heirs. Their Lordships observed that ‑: "A Court can and ought to take notice of subsequent events which may happen during the pendency of a suit provided no prejudice is caused to anyone by doing so" It was in this context that the suit was regarded as pending for the purpose of the finalization of the decree. It is, however, an altogether different‑ matter to urge that the suit could also be dismissed for default even after a preliminary decree had been passed. That point was 'specifically decided preliminary the Privy Council in the case referred to by the trial Court as well as by the learned Single Judge. In that case it was held that after a decree had once been made in a suit, the suit could not be dismissed unless the decree was reversed in appeal. It was added that the parties had, on the making of the decree, acquired rights or incurred liabilities which are flied unless or until the decree was varied or set aside. It was further held that Order XVII, rule 2 also did not apply that there could be no dismissal after decree and that the order was made without jurisdiction and thus liable to be set aside by the High Court in revision. Nothing has been said before us on behalf of the petitioner which would incline us to embark upon a fresh examination of the ducting of the Privy Council with regard to the applicability of the provisions of Order IX, rule 8 of the C. P. C. to a suit in which a preliminary decree has been passed. We would, accordingly, dismiss this petition. Petition dismissed.