IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR
IInd Appeal No.
S – 01 of 2011
Mr. Justice Muhammad Shafi Siddiqui
Appellant : Mst. Hanifa,
through Mr. T. David Lawrence, assisted by Mr. Muhammad Tahir Qureshi Advocate.
Respondent No.6 : Abdul Majeed,
through Mr. A. M. Mobeen Khan Advocate.
Respondent No.4(b)(i): Raheem Bakhsh,
through Mr. Tariq G. Hanif Mangi Advocate.
Date of hearing : 19.11.2018.
U D G M E N T
MUHAMMAD SHAFI SIDDIQUI, J. : This IInd Appeal is arising out of concurrent findings of the two courts below. The suit bearing No.62/1991 for declaration, perpetual injunction, cancellation, recovery, partition and possession was filed by one Abdul Majeed / respondent No.6 against Mst. Hanifa, the alleged beneficiary of the gift deed. The trial Court, on the basis of the pleadings, passed a preliminary decree on 10.10.2000 and final decree on 28.03.2007. The defendant therein challenged the preliminary decree in the shape of an Appeal bearing No.44/2001 which was dismissed followed by Revision Application No.399/2004 which too met the same fate. The Defendant in the suit / appellant claimed to have filed a Review Application which too was dismissed on 20.12.2004.
2. It is the case of the appellant that in the pleadings as well as in the evidence, the fact of execution of Will was pleaded and discussed whereas no issue was framed by the trial Court and hence the case of the appellant / defendant has not been considered with the background of Will having been executed by the father- in-law of the appellant in her favour. M/s A. M. Mobeen Khan and Tariq G. Hanif Mangi both learned counsel for the respondents, on the other hand, have argued that now it is not open for the appellant to challenge the contents of the preliminary decree which though was challenged by the petitioner but remained unsuccessful as both the appeal as well as the revision against the preliminary decree were dismissed. The provisions of Section 97 CPC do not allow the appellant to yet again impugn the contents of the preliminary decree which has already attained finality. Counsel submit that at the most the consequences of the preliminary decree to be followed, could at best be challenged i.e. the calculation of mesne profits and bifurcation and the distribution as per their respective share in the property. This defence that the question of Will and Gift has not been considered, is now past and closed transaction.
3. I have heard all the learned counsel and perused the material available on record.
4. In this matter, a preliminary decree, as prayed in the plaint, was passed on 10.10.2000 which was challenged by the appellant by moving an appeal bearing No.44/2001. The order passed in aforesaid appeal No.44/2001 was then challenged by the appellant in Revision Application No.399/2004 which too was dismissed on 20.12.2004. These facts are not denied by the appellant’s counsel. The contents of the preliminary decree, thus, attained finality in terms of an unsuccessful attempt by filing an Appeal and a Revision Application, as mentioned above. The evidence was recorded by the parties and though it should have been confined only to the extent of consequences to be followed after passing of the preliminary decree, all issues arising out of the pleadings, including the Gift were framed. The trial Court had not framed a specific issue regarding execution of Will, however, it was neither questioned by the appellant before the trial Court by moving an application for the amendment in the issues nor have they made out a case to such an extent before appellate forum as no such ground was available in the memo of appeal except ground No.14, which too talks about the fact that the execution of Gift and Will has not been considered by the trial Court. There is no specific objection as to the framing of the issues. Since the suit has been preliminary decreed as prayed and the challenge to preliminary decree was unsuccessful, only the consequences of the preliminary decree to be followed. However, despite this the issues were framed and evidence was recorded on main pleadings.
5. In support of the pleadings, appellant Mst. Hanifa recorded her evidence. She produced the photocopy of Will as Exh.66, however, it was under objection as it was only a secondary evidence since the original was never produced by the appellant. It is a matter of fact that neither the concerned Registrar was summoned nor the attesting witnesses, such as, Abdul Rahman, one of the signatories of the alleged Will, were examined. This Will has also lost its strength when the witness himself says that after two days of death of the father-in-law, the respondents took away the golden ornaments, cash and original Will forcibly whereas no FIR to such an extent was registered. She also stated that her father-in-law thought that his sons would create some trouble for her, therefore, he executed Gift deed in her favour. There is no reason as to why the father would deprive rest of his sons from availing fruits of the property.
6. Section 97 CPC enables a party aggrieved of a preliminary decree to challenge, however, in case he fails to challenge it, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree. Since the appellant remained unsuccessful as far as challenge to a preliminary decree is concerned, an appeal against decree which has been followed by a preliminary decree, will be limited to points arising subsequent to the preliminary decree and any defect in the proceedings prior to the passing of preliminary decree cannot be made the grounds of appeal in an appeal against final decree. While passing a final decree, the appellate Court cannot re-open matters which have already been decided by a preliminary decree. The Hon'ble Supreme Court in the case of Friend Engineering Corporation v. Government of Punjab, 1991 SCMR 2324 has held as under:
“7. A preliminary decree is
appealable, but the respondent did not prefer any appeal against ex parte decree dated 12-5-1976. It is in the report of the
Local Commissioner that from 16th December, 1976, to 26th
December, 1977, officials of the department appeared before him on several
occasions, produced the account books and participated in the proceedings. The
trial Court’s order also reflects that the counsel for the respondents entered
appearance in the Court along with the Local Commissioner on 29-11-1976,
10-1-1977 and 26-12-1977. It can thus safely be presumed that they stood posted
with the knowledge of the preliminary decree in pursuance whereof the Local
Commissioner had embarked upon taking the accounts. Section 97, C.P.C.,
‘Where any party aggrieved by a
preliminary decree... ... does not
appeal from such decree, he shall be precluded from disputing its correctness
in an appeal, which may be preferred against the final decree.’
‘It was not open to the respondents
to throw a challenge to the validity of the preliminary decree against an
appeal from the final decree. The order of the High Court in striking down the
preliminary decree is evidentially violative of mandatory provisions of section
97, C.P.C., and thus, cannot be sustained. The failure of the learned Civil
Judge to suo moto take notice of the form of the suit
and passing of preliminary decree by him without calling upon the appellant to
establish that the respondents were an accounting party would at the most be an
illegality against which they could seek remedy through an appeal provided by
section 97, C.P.C. As regards a void order, it will not be out of place to
refer here to the following observations appearing in M/s Conforce
Ltd. v. Syed Ali Shah etc. PLD 1977 SC 599:
‘... ... We would observe that a
void order or an order without jurisdiction is only a type of an illegal order
passed by a Court and the fact that it has been passed and that it may, therefore,
create rights cannot be altered by describing it as void or without
jurisdiction. And, further, the expressions ‘void orders’ and ‘orders without
jurisdiction’ are overworked expressions.’
‘It is significant to note that
there is nothing in the impugned judgment to reflect that the High Court
proceeded on the assumption that the preliminary decree was void and a nullity.
It appears that section 97 was not even present to the mind of the learned
Single Judge. The respondents could not have been permitted to circumvent the
period of limitation and bypass the provisions of section 97, C.P.C.’ ”
In the case of Conforce Ltd. v. Rafique Industries Ltd., PLD 1989 SC 136, the Hon'ble Supreme Court held as under:
“Section 97 of the C.P.C. debars a party
from questioning the correctness of a preliminary decree in an appeal preferred
from the final decree. Therefore, if a party fails to challenge a preliminary
decree within the prescribed period of limitation, the party would be precluded
from challenging the same in an appeal against the final decree. None of the
parties filed an appeal against the preliminary decree passed and drawn up by
the Court in this case.”
In the case of Shamsuddin v. Imamuddin, PLD 1982 Karachi 327, it was held as under:
“On behalf of the appellant the
impugned order was first assailed on the ground that the accounting period
fixed and determined by the preliminary decree passed by the L.P.A. Bench could
not be varied subsequently. It is no doubt true that under the principle
underlying section 97, C.P.C., any defect in the proceedings prior to the
passage of the preliminary decree cannot be agitated and while passing a final
decree the Court cannot re-open matter which has already been decided by the
7. The appellant has attempted to challenge, by filing Civil Appeal No.44/2007, both the preliminary decree dated 10.10.2000 and final decree dated 28.03.2007. The appellate Court, on consideration of the accounts and the reports of the Mukhtiarkar, did not find any illegality or irregularity committed by the Senior Civil Judge while passing final decree. It is also a matter of fact that in her own examination-in-chief, she has stated that at the time of marriage, the age of his father-in-law was about 80 years and that two of her sons Abdul Majeed and Abdul Rahman were jobless. In the pleadings, respondents No.3 and 4 i.e. Mst. Hanifa and her husband Nazeerullah s/o Haji Sultan Muhammad, whose property is under dispute, admitted that his father-in-law / father was an old man and needed care and help in feeding and lodging, which was done by defendant No.3 (appellant), hence when enquired from the counsel Mr. Lawrence that he was on death bed, Mr. Lawrence honestly and categorically conceded. He, however, was of the view that he was in full senses.
8. The rights which have already been determined by a preliminary decree dated 10.10.2000, cannot be re-assailed in another appeal while challenging the final decree. Though the preliminary decree was challenged at the relevant time but the appellant remained unsuccessful. As far as final decree is concerned, no material illegality or irregularity is shown. The appeal, as such, is dismissed with no order as to costs.
J U D G E