' CH. IJAZ AHMAD, J.---The brief facts out of which the present appeal arises are that respondent No,1 filed a suit for partition, separate possession and permanent injunction in the Court of Senior Civil Judge,Lahore. The contents of the plaint reveal that father of the parties namely Sheikh Abdul Aziz owned following properties:--
(1) House No, SW-III-81-S-1 Malvia Street, Islampura, Lahore.
(2) Shop No,21 Alamgir Market, Shah Alam Scheme, Lahore.
' During the pendency of the suit compromise arrived between the parties qua Shop No,21 mentioned above on 16-1-1994. Therefore, there is no dispute qua Shop No,21 mentioned above between the parties. The trial Court passed the preliminary decree vide judgment and decree, dated 13-5-1997 qua the house in question after recording the statement of parties except defendants Nos.4 to 7/present appellant and respondents Nos.4 to 6. The appellant being aggrieved filed this appeal.
2. Learned counsel of the appellant submits that property in question was orally gifted in her favour by her late father and possession is also with her. He further submits that service of the appellant was not effected. He further urges that manner of passing the impugned order is not permissible under the provisions of Code of Civil Procedure.
3. Learned counsel of respondents Nos.1, 4 and 6 submits that appellant has engaged two counsel who entered appearance before the trial Court. He further submits that respondent No,4 has withdrawn his suit titled Zahid Aziz v. Abdul Rashid and others on 13-5-1997 in view of compromise arrived between the parties. He further submits that appellant has also filed a suit for declaration titled Rehana Nasreen v. Shahid Parvez etc. Which was dismissed as withdrawn on 8-1-1997. He further submits that appeal filed by the appellant is three days time-barred. He further submits that appellant failed to furnish sufficient ground for condonation of delay.
4. The service of respondents has been effected. Respondents Nos.2-a to 2-g, 3, 5 and 7 had engaged Malik M. Nadeem, Advocate who entered appearance before this Court on 31-3-2003. His name is also mentioned in the cause list. Despite repeated calls nobody entered appearance on behalf of the said respondents. Therefore, we have no other alternative except to pass ex parte order against them.
5. Learned counsel of the appellant in rebuttal submits that preliminary decree passed by the trial Court is in violation of the mandatory provisions of C.P.C. Therefore, same is not sustainable. He further submits that appellant filed appeal immediately after opening the Court, therefore, appeal filed by the appellant is not time-barred.
6. We have given our anxious consideration to the contentions of the learned counsel of the parties and perused the record.
7. It is better and appropriate to reproduce basic facts in chronological order to resolve the controversy between the parties qua preliminary point raised by The learned counsel of the appellant with regard to limitation.
(i) Impugned judgment and decree was passed by the trial Court on 13-5-1997.
(ii) The appellant submitted application for securing certified copies of the impugned judgment and decree on 30-8-1997.
(iii) Copying branch concerned prepared the copy and delivered the same to the appellant on 5- 9-1997.
(iv) Appeal was filed before this Court on 8-9-1997.
In case the aforesaid facts are put in juxtaposition then appeal is not time-barred in view of section 4 of the Limitation Act as .The law laid down by the superior Courts in the following judgments:--
(1) Fazal Karim v. Ghulam Jillani (1975 SCM R 452) and (2) Nooruddin v. Pakistan (2000 SCM R 354).
' Now we intend to decide the case on merits whether the manner of passing the impugned decree by the trial Court is permissible under the law or not. It is better and appropriate to reproduce operative part of the impugned judgment to resolve the controversy between the parties:-- "Now there is no dispute regarding this property. The plaintiff and defendant Nos.1 to 3 agreed they have no objection if the properties be auctioned. However, no consenting statements have come on record with regard this property on behalf of the defendant Nos.4 to 7. So in view of the pleadings of the parties and statements of the parties referred to above there is no need to record the evidence with regard to the ownership of the property and a preliminary decree passed for partition of property bearing No, S-VOIII-81-5-1(at S. No,2 in para No,1) situated in Malvia.St. Onkar Road Islampura, Lahore.' Since the defendantsNos. 4 to 7 have not given their consent for auction of the property, therefore, at present and Ch. Muhammad Abdullah Advocate, Office at Ali Plaza 4- Mozang Road, Lahore is appointed as local commission with the direction to visit thespot and to report as to whether this property is devisable or not".
We have perused the aforesaid operative part of the impugned judgment and decree which reveals that the trial Court passed the impugned order without application of mind in violation of the mandatory provisions of C.P.C. Especially in the circumstances wherein defendants Nos.4 to 7 have categorically denied the mode of deciding the case in the manner as the trial Court decided.
Therefore, this fact brings the impugned B judgment and decree of the trial Court in the area that the trial Court has decided the same without application of mind which is a condition precedent for the Presiding Officer to resolve the controversy between the parties as the law laid down by the Honourable Supreme Court in Mollah Ejahar Ali v. Govt. Of East Pakistan (PLD 1970 SC 173).
' In view of what has been discussed above, the impugned judgment and decree is modified to the extent of the property in question i:e. House No, SWIII 81-S-1, Malvia Street Islampura, Lahore. The parties are directed to appear before the trial Court on 24-3-2004 and defendants and appellants are directed to appear on the said date along with written statement. In case the appellant and the defendants in the suit failed to appear along with the written statement on the said date then the law will take its own Court. The trial Court after receiving written statement shall frame the issues immediately and decide the suit positively within four months thereafter.