' AMIN-UD-DIN KHAN, J. --- Through this civil revision, petitioner who is defendant No, 1 in a partition suit has challenged the order dated 31.01.2013 passed by learned Civil Judge 1st Class, Lahore, who has not only dismissed the application under Order VII, Rule 11 of the CPC for rejection of the plaint but also passed an order synonymous to a preliminary decree. The application under Order VII, Rule 11 of the CPC was filed on the ground that list of witnesses has not been filed in accordance with Order XVI of the CPC.
2. When the instant civil revision was entertained, learned counsel for the petitioner on 12.02.2013 made a statement that he will not press this petition to the extent of dismissal of application for rejection of plaint. Today learned counsel has argued that not only the application for rejection of plaint was dismissed but also virtually a preliminary decree was passed; that when the issues were framed and without recording of evidence the order impugned, whereby a preliminary decree has been passed, therefore the order is not sustainable under the law. Learned counsel has relied upon the judgments "2004 M LD 293 (Abdul Wahab and others v. Ghulam Muhammad), 1982 SCM R 816 (Ali Muhammad v. Muhammad Hayat and others) and 2011 YLR 3073 (Mst. Jannat and others v. Mst.
Maqsood and others)" to argue that after framing of issues without recording {{PAGE CUT}} ,tevidence the preliminary deCree could not have . Been passed,
3. On the other hand learned counsel for 'the respondents has.Resisted the argiutents of learned' cotin,sel. For the petitioner and argues that there is absolutely no any . Illegalify,or. Infirmity in ,the.i impugned order. Which is not revisable by this Court; fhat when there was an admitted position,' therefore the Corirt Was competent fa :pass a preliminary decree at any stage and same has rightly been passed: Learned counsel admits that formal prelirninary" decree has nOt been prepared- whiqh. Can be ordered to the learned Trial COurt for preparation of the same.
4. I have heard the learned counsel for the parties at length and &So gone through the case-law as well as the impugned order passed by learned Trial court and the pleadings of parties appended with this civil revision.
5. F: Tne suit for partition , was filed by' the plaintiff-, . Respondent SNct. 1, on .24.112011.-The plaintiff is one of the sons of late Justice (Retired) Karam Elahi Chauhan, whereas defendants NO. 1 and.2arehis,brothers: Defendant: "No, NO..1 who is petitioner before this Court has filed contesting written stateinerit, 'whereas defendant NO.- has filed consenting written statement. Learned Trial Court framed the issues on.- 05.12.2012 and invitedlhe parties to produce their evidence..The petitioner who is defendint!No, -I in the Trial Court moved an application under. Order VII, Rule 11 read Order.XVI and Section 151 of the CPC. It seems that, t ' the time Of:hearing the argumentS on the application learned s 2 Trial Court scrutinized the pleadings as. WelliaS the record of'. '' case and' 'while rejeCting the' application under Order VII, Rule 11 and Order XVI of the CPC, came to' the conclusion . That there is no need to record the evidence as it is admitted between the parties that property is joint one and parties to the suit are owner of the property in equal share and.Virtually passed a preliminary decree. I have noticed that the claim of plaintiff that on the basis of registered gift deed NO. 4651, cL.R. dated 08.02.1979 the suit property was gifted by their father to all the three sons in equal shares, whO are party to .The sdit;This fact has been admitted in the Writtenstatemeht and the learned Trial pourt mentioned. In the impugned order that gift deed is available on the file Which is an admitted dOcumeht between the parties and When:it-has' been pleaded by the parties that' each _party is :faint i_owner to the. Extent of 1/3 .In ..The suit .Property, 'therefore -learned Trial Court vide, iMpughed order dated, 31.01'2011; after dismissing the application under. Order .VIi; Rule 11 as Well as Order, XVI of the CPC paSsed a preliminary 'decree. In this view of the matters: the case.
Ow referred to by learned counsellor the petitioner is not...Applicable to the facts Of this case.!-For invoking jurisdiction of this court:under ,section 115 of the CPC the petitioner is under obligation to point out any illegality, infirmity or material irregularity in the impugned Order passed by learned Trial Court but no such flaw has been shown' by the learned counsel for the -petitioner. The t I _ order passed by the learned Trial CoOrt is in aboordancewith law.
6. As the Court haS scrutinized ...The: matter and there is an admission op ,behalf ot,the parties with regard to joint 'property,. Therefore. Preliminary decree has rightly been passed. The only defect visible in the, proceedings .Is that a formal preliminary decree has not been prepared. In this View 'of' the matter, while dismissing this civil revisionlearned Trial 'Court is direoted to prepare- a formal preliminary .'clearee, so that a defeat in the proceedings be cured. The parties' are left to Searlheir Own -costs 'Copy Of this order' e. Sent ininiediately to the 'learned Trial Calk for guidanoe.
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