P L D 1954 Federal Court 184 (PLP)

AKRAM, J.

A partition Suit No. 118/41 was instituted by Muhammad Hafiz, one of the heirs of Muhammad Bakhsh deceased, impleading the other heirs and successors as parties-defendants. Except the defendant No. 7, Tajuddin, all the other defendants entered appearance and prayed for an ascertainment of their shares as well. The trial Court passed a preliminary decree in favour of the plaintiff to the extent of a 1/4th share in the estate and as to the remainder made a declaration specifying the shares of the defendants. Against this decree the defendant No. 1, Muhammad Latif appealed to the Lahore High Court (F. A. 154/43) but the appeal was dismissed in April 1946. Meanwhile, however, one of the defendants Mst. Fazl-un-Nisa died in December 1945. The plaintiff thereupon put in a petition under section 151 C. P. C. for increasing his share by 1/24 as an heir of Mst.-Fazl-un-Nisa. The defendants also, other than Muhammad Latif and defendant No. 7 Tajuddin, presented a similar petition for a separate allotment' of their respective shares. Both these petitions were opposed by Muhammad Latif on various grounds but his objections were overruled and in May 1948, it was ordered by the trial Court that the preliminary decree be amended as prayed for. The plaintiff's share was thereupon increased to 7/24. From the amended preliminary decree defendant Muhammad Latif again appealed to the Lahore High Court (F. A. 24/48) but on this occasion also he was unsuccessful. He then applied under sections 109 and 110 C: P. C. for a certificate that the case was a fit one for an appeal to this Court (Civil Miscellaneous No. 37/C of 1953), but even this effort produced no better result. He has now preferred the present petition before us for granting him special leave to appeal. The petitioner who appeared in person contended that the trial Court had no jurisdiction to amend the preliminary decree after the appeal from it preferred by himself had been dismissed by the High Court in 1946 ; but it is to be observed that the suit was one for partition instituted by one of the heirs only, while the other heirs excepting the defendant No. 7 had filed written statements praying for a determination of their respective sharea which were accordingly set out in the judgment of the trial Court; that subsequently it becomes necessary to increase these shares on account of the death of Mst. Fazal-un-Nisa, and the preliminary decree was, therefore, amended. A Court can and ought to take notice of subse quent events which may happen during the pendency of a suit provided no prejudice is caused to anyone by doing so Ram Rattan Sahai v. Mohan Sahai (6 C L J 74.). A partition suit in which only a preliminary 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 cladunath Roy v. Permeswari Mallick (A I R 1940 P C 11.). I fail to see what prejudice could have been caused to the petitioner by the amendment of the preliminary decree. Next, it was contended that a certain property had been left out of the suit and the suit, therefore, was not maintainable being a suit for a partial partition. It appears, however, that the title to it is disputed and a suit is pending decision with regard to the said property. It cannot be said that in all circumstances there is an absolute prohibition in law from instituting a partition suit after leaving out some of the properties alleged to be joint properties. I see no merits either or fact or of law in this case, and would, therefore, dismiss the petition and refuse leave to appeal. SHAHABUDDIN AND CORNELIUS, JJ.

We agree that this petition be dismissed. In addition to the reasons contained in the order of Akram, J. we find that in his reply to the application of certain defendants, in the trial Court for amendment of the decree, the petitioner expressly took the plea that the decision of the Lahore High Court of April 1946, "was erroneous in law" and could not "at all operate as res judicata". In a reply to the plaintiff's application for amendment, he repudiated the decree of the High Court, and at the same time "prayed that the preliminary decree already issued in his (the plaintiffs) favour may be modified as specified in paras. 3 and 4 above". If now the petitioner contends that the High Court decree of April 1946, could not be amended by the trial Court, he is clearly assuming an attitude of reprobation towards a proceeding which he has previously, in the same litigation, approved. A. H. Petition dismissed.