Preliminary Decree

Present matter concerned a dispute between three brothers over the partition of property left by their deceased father, comprising four houses

A family arrangement allegedly allocated one house to each brother, while one property remained undivided

Litigation first arose when two brothers sought injunction regarding construction over the disputed house

Subsequently, respondent No.1 filed a suit for partition and separate possession of the disputed property, which resulted in a preliminary decree in his favour and the same was upheld by the Appellate Court and the High Court

Pivotal issue requiring determination before the Supreme Court was as to “whether the suit for partition confined to a selected portion of joint property, without determining the shares of all co-sharers and without including the entire estate, was legally sustainable and whether a preliminary decree passed without compliance with Order XX Rule 18, C.P.C. was valid in law?”

Held: The suit concerned the partition of property along with a request for separate possession of an individual share

Given this context it was imperative that the Trial Court adhered to the procedural guidelines set out in Rule 18 of Order XX, C.P.C. when issuing preliminary decree

Unfortunately, this essential procedure was overlooked

Judgments and decrees rendered by the Courts below were unsustainable

Matter was referred back to the Trail Court to decide the suit afresh in accordance with law

Petition was converted into appeal and allowed, in circumstances.

Petitioners were aggrieved of refusal of respondent to vacate portion of suit property in her possession, in the light of preliminary decree passed by Trial Court

Plea raised by respondent was that she had retained possession in lieu of partition of agriculture land still to be partitioned

Trial Court and Lower Appellate Court declined to deliver possession to petitioners

Validity

Fact that agriculture land remained to be partitioned or sold had no co-relation to settlement and distribution of shares in relation to other properties that had formed part of partition suit

Preliminary decree was a final decree in relation to properties in relation to which respective shares stood distributed between co-sharers

Merely because it was a preliminary decree in relation to agriculture land that remained to be distributed and/or sold did not make such decree a preliminary decree in relation to properties, the distribution of which had already taken place and constituted a matter that required no further adjudication

High Court directed the respondent to hand over possession to petitioner and set aside orders passed by Trial Court and Lower Appellate Court

High Court declared that petitioners were entitled to receive rent from respondent to be determined by Executing Court for the period respondent declined handing over of the possession till such possession would be handed over

Revision was allowed, in circumstances.

When preliminary decree is passed, Court does not become functus officio and retain control over action even after decree

Suit remains pending till such time a proper final decree is passed and right of parties are determined

If a question arises as to whether a decree is preliminary or final, it has to be decided by a reference to decree itself

Decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of, it is final where such adjudication completely disposes of the suit.

Whenever an application is filed by plaintiff for dissolution of marriage upon failure of pre-trial reconciliation, the marriage is to be dissolved forthwith through a speaking and reasonable order

Dissolution cannot be withheld or refused merely upon pendency of other contesting issues between the parties qua recovery of payment of dower, maintenance or other ancillary matters, which could at best be adjudged after recording pro and contra evidence of the parties

Albiet, if the marriage tie is kept intact on account of other ancillary issues; then, it would be denial of the right so conferred upon the wife by the law, as the very purpose and object of S.10 of Family Courts Act, 1964, is to salvage the wife from hateful union and she should not be compelled in any circumstances to stay in the marriage contract against her will and consent; which would amount to keep the tie of marriage forcefully intact

Decree so passed shall be treated as a preliminary decree, which shall be merged into final decree after recording of pro and contra evidence of the parties.

Petitioners/vendees had purchased the share of one of the respondents during the pendency of the case and they were impleaded as party by the Appellate Court during hearing of appeal preferred against the preliminary judgment and decree

Petitioners assailed the dismissal of the appeal preferred against the preliminary decree

Held, admittedly, petitioners purchased the share of vendor/respondent during the pendency of suit for possession through partition

Petitioners had stepped into the shoes of the vendor/respondent who himself had not challenged the preliminary judgment and decree before the Appellate Court

Preliminary decree had, thus, attained finality and fell under the past and closed transaction, which could not be re-opened merely on the whims and caprice of the party

No illegality or infirmity was found in the impugned judgment and decree passed by the Appellate Court maintaining the preliminary decree

Revision was dismissed, in circumstances.

Plaintiff claimed to be one of the legal heirs of deceased owner of suit house who sought recovery of possession on the plea of co-owner

Defendant resisted issuance of preliminary decree on the plea that he had paid valuable consideration to another co-owner for suit property whereas suit filed by defendant seeking declaration was dismissed for non-prosecution

Validity

Co-owner did not enter appearance to confirm receipt of consideration from defendant

Even if consideration was proved that could at the best be taken to be consideration for share of that co-owner in suit house

Till such time the co-owner would execute a registered deed to transfer her share to defendant, provision of S.44 Transfer of Property Act, 1882, was not triggered so as to enable him to claim that he was a transferee from a co-owner

Even if defendant were to subsequently become a transferee from co-owner, even then he could not resist a suit brought by another co-owner for administration of suit house

Though suit of defendant seeking declaration to that end was dismissed for non-prosecution but he had taken same plea in defence of suit filed by plaintiff who was a co-owner

Right of mortgagor to redeem his property, was a right founded in equity which was also protected by statute in S.60 of Transfer of Property Act, 1882

Such right was not extinguished by act of parties or by decree of a Court

Defendant had no legal basis to retain possession of suit house nor any legal basis to oppose preliminary decree for administration of suit house belonging to deceased, to which there was otherwise no impediment

Preliminary decree was passed in, circumstances.

Trial Court passed final decree in the terms that subject to payment of share of defendants the plaintiffs would be owner of suit property

Validity

Court had jurisdiction to decide whether suit property was partitionable or not

If suit property was not divisible due to its nature and sale proceed was more beneficial, then Court might pass order for sale of suit property and distribution of sale proceeds amongst the shareholders

"Request" for sale of suit property might be written or verbal

Where preliminary decree had been passed then S.2 of Partition Act, 1893, was not applicable

Mere non-filing of written application for sale of suit property would not defeat the right of any of the parties to purchase the same

Possession of suit property was with the defendants who had 5/6 shares as compared to 1/6 of the plaintiffs in the suit land

Share of defendants was much bigger than that of plaintiffs in addition to the fact they had possession of suit property

Defendants were to be given opportunity to purchase the minor share of plaintiffs in the suit property, in circumstances

No illegality had been pointed out in the impugned judgments and decrees passed by the Courts below

Revision was dismissed, in circumstances.

Trial Court having failed to pass preliminary decree before passing final decree as required under mandatory provision of O. XX, R. 16, C.P.C., decree was set aside and case was remanded to the Trial Court for decision afresh.

Orders passed in absence of legal heirs could not be treated as orders passed on "objections" in order to treat an application for letter for administration as contentious, which could only be converted into a suit if the objections filed were prima facie tenable and objectors were to be treated as defendants in terms of S.295, Succession Act, 1925

When there was neither "objections" nor "objectors" on record, order under O.XX, R.13, C.P.C. could not be passed.

Petitioner contended that the respondent/plaintiff had not deposited the court fee within a month as directed by Trial Court, so preliminary decree passed in his favour had automatically deemed to be rejected

Petitioner contended that the two courts below had wrongly dismissed his application for rejection of plaint of the respondent

Respondent contended that as the decree passed in his favour was preliminary, therefore, Trial Court was competent to extend prescribed time

Validity

Trial Court could direct the plaintiff to affix the court fee within a prescribed period at any stage of the suit and could pass a conditional decree, however, in the present case, the Trial Court had rendered its findings on the issue regarding the affixation of court fee but the same direction was omitted in the relief column as well as in the preliminary decree drawn accordingly

Case purely pertained to extension of period for deposit of required court fee

Order XX, R. 6, C.P.C., provided that the decree would agree with the judgment and shall specify clearly the relief granted or other determination of the suit but no such direction was rendered by Trial Court while drawing the decree in terms of O. XX, R. 7, C.P.C.

Plaint could not be rejected except where the relief claimed was under value and the plaintiff on being required by court to correct the valuation within a time to be fixed by the court, failed to do so

In the present case, time was fixed by the court for deposit of court fee, which was one month after the passing of the preliminary decree but the Trial Court had not corrected the valuation nor had specified the amount to be deposited by the respondent/plaintiff

Where the matter was not finally decided, the court while passing final decree had the jurisdiction to enlarge period for depositing the required court fee even if the time fixed already by the court, had expired

Court could not extend, enlarge or grant any further time for doing an act if it was specifically mentioned in the relevant statute in terms of S. 148, C.P.C.

Court could extend time prescribed by the court itself but the jurisdiction conferred upon a civil court in terms of S. 149, C.P.C., which related to court fee was exclusive jurisdiction to direct at any stage and allow any party to the suit to pay the whole or part of the court-fee as the case might be

No illegality or defect in jurisdiction in the impugned judgments were found

Constitutional petition was dismissed accordingly.

Plaintiff filed suit claiming that suit property was owned by parties being legal heirs of deceased, and sought partition and separate possession thereof

Defendants, brother and step mother of plaintiff, took plea that suit property had actually been purchased by father of plaintiff but the same had been in name of plaintiff and defendants, whereas plaintiff was only benamidar

Plaintiff filed application seeking appointment of Nazir of the Court for resolution of dispute as to use of suit property

Validity

As per record, plaintiff and defendants were joint owners and co-sharers of suit property

Order XX, R. 18, C.P.C. provided mechanism for partition and separate possession of movable and immovable property

Order XX, R. 18(2), C.P.C. provided vast jurisdiction to court to record preliminary decree where partition or separation could not be conveniently made without further inquiry

Remedy for specific partition and possession in specific immovable or movable property was an exception to other reliefs, controlled and declared by Specific Relief Act, 1877

Where legal status of parties as sharers or joint owners was not disputed, course provided under O. XX, R. 18, C.P.C. should have been adopted

Predecessor of parties had gifted suit property equally to the parties, and their titles, being under same gift, could not be claimed to be Benami by any one of them

Party claiming any right on basis of independent title or character might file separate suit, but on that plea, process of partition would not stop, where prima facie legal status of parties as co-sharers and that of suit property was evident

High court passing preliminary decree appointed Nazir of court to inspect suit property and submit his report as to feasibility of partition thereof

Suit along with civil miscellaneous application was disposed off accordingly.

Wife filed suit for recovery of maintenance allowance and dower wherein Family Court directed the husband to pay dower before decision of said suit

Contention of husband was that preliminary decree could not be passed in family cases

Validity

Husband had not paid dower to the wife

Dower was prompt in nature and it had to be paid on demand

Family Court in order to do substantial justice was competent to regulate its proceedings and pass order to promote interest of justice

Purpose and object behind enactment of S. 17 of Family Courts Act, 1964 was to facilitate the Family Court to bypass the lengthy and mundane procedure of Civil Procedure Code, 1908 and to decide family matters expeditiously

Husband could not insist to defer the payment of dower till the conclusion of family suit

If prompt dower was not paid on demand, wife could refuse to perform conjugal obligations to her husband

Pendency of suit for conjugal rights against the wife could not be considered as an impediment for her to demand prompt dower from the husband

Constitutional petition was dismissed in circumstances.

Court could for the purpose of achieving the object of such a suit besides determining the question of title to any property determine the existence or validity of any alienation of property not only by other persons after the death of deceased but also by deceased himself during his life time

Court could take over charge for determining property and entire process of realization, payment, settlement and distribution of assets of deceased had to be made under the supervision of court

Factual controversy could only be resolved upon leading comprehensive evidence by the parties to the suit

No preliminary decree was passed in the suit for appointment of an administrator to administer the properties of the deceased under the supervision of court

No administrator was appointed by the Trial Court to administer the properties left by the deceased and accounts of the properties were not ordered to be rendered by the Trial Court

Mandatory requirements had not been fulfilled by the Trial Court which had vitiated entire proceedings

Impugned judgments and decrees were set aside

Case was remanded to the Trial Court for adjudication afresh in terms of preliminary decree which should be passed in respect of only those properties which were in the name of deceased and in case properties were not in the name of deceased then commissioner/administrator be appointed to record evidence of the parties

Appeal was disposed of accordingly.

Final decree had to be sought for execution of preliminary decree for delivery of possession of the share of each co-owner in the corpus of the undivided property.

Partition had to be sought for all the undivided immovable properties and partial partition thereof would not be competent

All the co-sharers of said undivided property had to be impleaded in the suit for partition

Court to ensure that each co-sharer was allotted his share equitably depending on the value thereof which would depend upon the area, location and nature of property

Suit property sought to be partitioned was situated within the Abadi Deh and civil court was competent to adjudicate the partition proceedings

Defendants had failed to point out any other joint immovable property within Abadi Deh in the Mauza

Immovable undivided property outside the Abadi Deh had to be partitioned by the Revenue hierarchy

Plaintiffs could not have included the land owned by the parties in Shamilat Deh in their suit filed before the Trial Court

Trial Court was required to first determine the respective rights of the parties and record the same in the preliminary decree

Said preliminary decree would ensure each party /co-sharer to know exactly their rights which would include their respective shares and if any improvement was made thereon

Both the courts below had accepted the prayer for partition but had not determined the respective rights of the parties

Impugned judgments passed by both the courts were set aside and case was remanded to the Trial Court with direction to determine the rights of the parties and decide the same within specified period.

Plaintiff, a private limited company, filed suit for damages on ground that defendants, foreign companies, had failed to fulfill their part of undertaking as agreed upon through a Letter of Intent, which had resulted in huge loss, and other defendants, being franchise holders, represented said foreign companies in Pakistan

Defendants, foreign companies, on application under O. XII, R. 2, C.P.C. filed by plaintiff, had admitted all documents annexed with the plaint, including receipt of amount of money as part of payment of the franchise agreement; on which, plaintiff filed application under O. XV, R. 1 read with S. 151, C.P.C. for preliminary decree on basis of said admission seeking deposit of the admitted amount in court, which was dismissed by Trial Court

Defendants took plea that the amount paid by plaintiff was non-refundable

Validity

Present suit had already been summarily dismissed against defendants, the franchise holders, by Trial Court under O. I, R. 10, C.P.C.

Defendants, in their reply to present application for preliminary decree, had shown their willingness to refund the disputed amount but with condition that plaintiff would withdraw the suit

Defendants, had no assets in Pakistan, and in case, decree was passed, plaintiff would not be able to get the decree executed against the defendants

Franchise fee being received by the defendants from other defendants, franchise holders, were not ascertainable

Defendants, having been incorporated out of Pakistan, should deposited the amount in court, which would be regulated as per terms of decree

High Court, setting aside order of Trial Court, directed defendants to deposit the amount in dispute with Trial Court

Revision petition was allowed in circumstances.

Plaintiff, a private limited company, filed suit for damages on ground that defendants, foreign companies, had failed to fulfill their part of undertaking as agreed upon through a Letter of Intent, which had resulted in huge loss, and other defendants, being franchise holders, represented said foreign companies in Pakistan

Defendants, foreign companies, on application under O.XII, R.2, C.P.C. filed by plaintiff, had admitted all documents annexed with the plaint, including receipt of amount of money as part of payment of the franchise agreement; on which, plaintiff filed application under O.XV, R.1 read with S.151, C.P.C. for preliminary decree on basis of said admission seeking deposit of the admitted amount in court, which was dismissed by trial court

Defendants took plea that the amount paid by plaintiff was non-refundable

Validity

Present suit had already been summarily dismissed against defendants, the franchise holders, by trial court under O.I, R.10, C.P.C.

Defendants, in their reply to present application for preliminary decree, had shown their willingness to refund the disputed amount but with condition that plaintiff would withdraw the suit

Defendants, had no assets in Pakistan, and in case, decree was passed, plaintiff would not be able to get the decree executed against the defendants

Franchise fee being received by the defendants from other defendants, franchise holders, was not ascertainable

Defendants, having been incorporated out of Pakistan, should have deposited the amount in court, which would be regulated as per terms of decree

High Court, setting aside order of trial court, directed defendants to deposit the amount in dispute with trial court

Revision petition was allowed in circumstances.

Contention of defendant was that Nazir had handed over the possession of suit property to the plaintiff beyond the mandate given by the court

Validity

Plaintiff was not holding the possession of suit property at the time of filing of present suit

No order for putting the plaintiff in the disputed shop was passed by the court

Plaintiff stood placed in possession of the shop in question due to misunderstanding or wrong assumption on the part of Nazir who was solely authorized for taking accounts by breaking open the lock of said shop

Court had every power, jurisdiction and authority not only to enforce its legal order but also to bring things back within legal frame if any excess was noticed/found

No one should suffer or prejudice for act or omission of the court

Agent was legally authorized to do what the principal had permitted him/her to do and had no authority which the principal never vested him/her

Wrong assumption or interpretation would never vest a right

Plea of plaintiff with regard to bonafide had no legal value to claim continuity of such possession

No one could claim any protection or legalization even on the plea of bonafide as illegality would continue to be illegality

Nazir of the court was directed to take the possession of shop in dispute under an inventory showing what he had delivered and received and maintain the accounts in presence of representative of each party.

Preliminary Decree Final decree passed without passing preliminary decree in partition suit-Treated as preliminary decree by Appellate Court-Clerical mistake-Civil Procedure Code (V of 1908), S. 151 and O. XX, r. 18 (2).