Nawabzada Farooq Khan etc Vs Qamar-u-Hakeem etc

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

D.I.KHAN BENCH

(Judicial Department)

Writ Petition No.36-D/2021 with CMAs No.58/2021, 21, 22, 63, 64/2023 Nawabzada Farooq Khan & another Versus Qamar-ul-Hakeem and other

For petitioner: Malik Muhammad Jehangir Awan Advocate

For Respondents: Muhammad Yousuf Khan Advocate for respondents No. 1 to 4.

Muhammad Saeed Bhutta Advocate (for LRs of respondent No.9)

Mr. Fahim Ahmad Baloch Advocate (for LRs of respondents No. 11, 13, respondent No.14 and applicant of CM No.64-D/2023)

Sheikh Shafqat Rehman Advocate (for respondents No.40 to 43)

Mr. Arif Raheem Ustarana Advocate (for respondents No.48, 60, 61)

Date of hearing 30.03.2026

JUDGMENT

SADIQ ALI, J.- Through this petition filed under Article 199 of the Constitution of the Islamic Republic of Pakistan,

1973, in the nature of certiorari, the petitioners have challenged the legality of judgment dated 28.01.2021 passed by the learned Additional District Judge-I, Tank, whereby the civil revision filed by petitioners against order dated 20.02.2020 of the learned trial court was dismissed.

2.Facts forming factual canvas of this petition are that, owing a preliminary decree in a partition suit No.279/1, an application for final decree was instituted by respondent No.5 and others however, that application was dismissed for non-prosecution vide order dated 03.02.2015. On 22.10.2015, the present respondents No.1 to 4 filed another application for final decree. The present petitioners filed application praying dismissal of second application to be not maintainable on the ground that earlier application for final decree was dismissed for non-prosecution and therefore fresh applicants had to apply for restoration of same instead of filing fresh one. Learned Civil Judge-I Tank, after hearing arguments held the second application for final decree maintainable vide order dated 20.02.2020.

3.Not contented with the order dated 20.02.02020, the present petitioners filed revision petition before the District Court. Learned Additional District Judge-I, Tank, after hearing parties, dismissed the revision petition vide judgment

dated 28.01.2021, hence, the instant constitutional petition by the petitioners.

4.Arguments heard and record perused with valuable assistance of the learned counsel representing parties.

5.It is evident from the record that the suit for partition was initially decreed by the learned trial court on 18.03.1992 and this decree maintained by the Apex Court vide Judgment dated 06.07.2009. First application for final decree was instituted on 21.10.2009 which was dismissed for non- prosecution on 03.02.2015. Subsequently the second application for final decree was filed on 22.10.2015.

6.There is no denial of the fact that a preliminary decree between parties regarding the same property has already been passed, and now it was the turn to determine the share of each share-holder as the preliminary decree confer right upon each party to the suit to claim the fruits of decree passed notwithstanding the fact whether he was plaintiff or defendant in the original suit. The dismissal of earlier application for final decree cannot bar other share-holder to apply for the final decree of partition. It is so because, if proceedings for final decree are abandoned or final decree is refused due to any technical reason, then parties having less

or no possession would be deprived eternally from their rights as they or their ancestors, how low soever, would hit by the doctrine of resjudicata in applying again for preliminary decree.

7.In-fact there is no specific limitation period for filing an application for a final decree of partition, as the suit remains pending after the preliminary decree. In this context, this Court has already expressed its view in the case of Muhammad Ayaz and others1, whereby it was held that in cases of partition of immovable property, which are outside the scope of the Land Revenue Act, 1967, and are governed under the provision of the Partition Act, 1893, other than agricultural land, the proceedings thereof entails three stages, first, Pleadings; second, Preliminary Decree and the third stage is Final Decree, because the proceeding is in continuation of the preliminary decree until the property is partitioned between share-holders. Reliance in this regard can be placed on the case of Muhammad Latif2 wherein the Hon’ble Lahore High Court was of the view that a suit for partition remain pending till the passing of the final decree.

Muhammad Ayaz and others vs. Malik Zareef Khan and others (PLD 2016 Peshawar 8)

Muhammad Latif Vs. M. Muhammad Hafiz and others (PLD 1953 Lahore 256)

In this case, admittedly no final decree has been passed, therefore, neither limitation can run against an application for final decree, nor application final decree, if dismissed for non-prosecution or due to any other technical reason, would bar the institution of fresh application. Reliance to this effect is placed on the judgment of the Supreme Court of india in the case of Shankar Balwant Lokhande3, wherein it was held:

It is settled law that more than one final decree can be passed. With the passing of the final decree in respect of the share of the first respondent, the rights of the parties in respect of other properties have not been crystallised and no final decree dividing the properties by metes and bounds was passed nor any application was made to divide the properties in terms of the shares of the parties declared in the preliminary decree.

8.Regarding the objection of limitation, once the rights of the parties have been finally determined in a preliminary decree, an application by a party thereto or the legal representatives, for effecting the actual partition in accordance with the directions contained in the preliminary decree can never be construed to be an application within the meaning of the Limitation Act. It shall be taken to be an 3 Shankar Balwant Lokhande (Dead) By L.Rs vs Chandrakant Shankar Lokhande & Anr (1995 SCC (3) 413)

application in a pending suit and therefore the question of limitation does not arise.

9.Before parting with this judgment, it would be pertinent to note that an application for drawing up a final decree is in-fact a reminder to the Court that something which the Court is obliged to do or finalized has not been done. Besides, it is an obligation on the court for drawing up a final decree, since a preliminary decree conclusively determines the rights and liabilities of the parties with regard to all or some of the matters in controversy in the suit although it does not completely dispose of the suit, further proceedings await the suit to work out and adjust the rights of the parties. The Court cannot dismiss a suit for default when once a preliminary decree is passed in a partition suit.

The parties to the suit have acquired rights or incurred liabilities under the decree. They are final, unless or until the decree is varied or set aside. After passing a final decree, if any party who filed application for final decree does not take any steps after, the Court should adjourn the proceedings sine die with liberty to the parties concerned to end the torpor and suspended animation of the suit by activizing it by taking appropriate proceedings. An alternative procedure would have been to transpose any of the respondents to the status of

petitioners, thereby continuing the proceedings until the issuance of a final decree

10.Now this Court has come to the conclusion that the two Courts below have not committed any illegality, irregularity or jurisdictional error in proceeding ahead with the seconding application for final decree. The second application for final decree filed by respondents No.1 To 4 is very much competent, entertainable and maintainable. There is no merit in this writ petition and the same is therefore, dismissed.

Listed CMAs stands disposed of for having become infructuous.

Announced.

(*M/Subhan)

Sd/-

JUDGE

(S.B)

Hon’ble Mr. Justice Sadiq Ali