' Through this single judgment, I intend to decide Civil Revisions No, 2265 of 2005 and 655 of 2008, as both involved common questions of law and facts and arise out of the same suit for partition.
2. A suit for possession through partition was instituted by the respondent herein on 16.1.1996, in which preliminary decree was passed on 21.11.2000. Subsequently, the final decree was passed by the learned trial Court on 21.7.2004. The petitioner preferred an appeal against final decree on 30- 10-2004, which was dismissed by the learned first appellate Court vide judgment and decree dated 12.4.2005, holding the appeal to be barred by time. Another ground to dismiss the appeal which found favour with the learned first appellate Court was that no appeal had been preferred against the preliminary decree, hence, appeal against final decree could not be maintained.
3. It appears that in the meanwhile, the petitioner-defendant also preferred an appeal on 21.5.2005 against the preliminary judgment and decree dated 21.11.2000. The said appeal was dismissed by the learned first appellate Court vide judgment and decree dated 4.
23.1.2008. Civil Revision No. 655 of 2008 was then preferred by the petitioner against the said judgment and decree of the learned first appellate Court.
4. It appears that the petitioner in C.R No. 2265 of 2005, was represented by Mr. Ghulam Haider Al- ghazali, Advocate, who today put in appearance and maintained that his client had taken away brief from him in the year 2008, as such, he had no instructions in the matter. The other C.R No. 655 of 2008 was preferred by Mian Zulfiqar Ali, Advocate, but despite repeated calls nobody has turned up on his behalf today. However, Mr. Waqar-ul Hassan Butt, Advocate, appeared from respondent's side in both the revision petitions.
5. I have heard the arguments addressed by him and considering that it was an old matter I have myself gone through the record and proceed to decide both these civil revision through this single judgment.
6. As regards C.R No.2265. Of 2005, it appears from the contents of the impugned judgment dated 12.4.2005 that only photocopy of the impugned decree was attached with the appeal filed against the judgment and decree dated 21.7.2004, and even according to the said copy of the decree, the application for issuance of certified copy was made on 3.9.2004 which was prepared and delivered on 6.9.2004, whereas, the appeal was instituted on 3.10.2004, and thus, it was barred by time and the same was dismissed by the learned first appellate Court on that score. Yet another reason which prevailed with the learned first appellate Court to dismiss the appeal was that no appeal was preferred against preliminary decree, hence, final decree could not be brought under challenge and in this regard learned first appellate Court placed, reliance upon case titled "Zeeshan Bhatti v. Maqbool Bhatti and another" (PLD 2001 SC 79). The grounds for dismissal of the appeal which found favour with, the learned first appellate Court are not open to any exception, because the delay of each and every day was to be explained, but there was no such explanation offered by the appellant, therefore, the appeal was rightly dismissed. The revision filed by the petitioner, therefore, has also to meet with the same fate which is hereby dismissed being the impugned judgment not open to any exception.
7. As regards C.R No. 655 of 2008, the learned first appellate. Court while dismissing the appeal preferred by the petitioner against preliminary decree dated 21.11.2000 has maintained that even petitioner had not applied for issuance of certified copy of the decree in time and he made such an application on 15.4.2005. The circumstances do suggest that had the petitioner intention to assail preliminary decree he would have applied for issuance of certified copy in time and if the same had not been drawn by the learned trial Court the same could have been, drawn on receipt of application for certified copy of preliminary decree, but the fact that he made application for issuance of certified copy on 15.4.2005 clearly indicates that he had no intention to file appeal against preliminary decree.
8. It is also worth mentioning that appeal filed by the petitioner against final decree was dismissed on 12.4.2005 and the learned first appellate Court had maintained in the impugned judgment that since no appeal had been preferred against preliminary decree, an appeal against final decree could not be maintained. Thus, the petitioner became alert on 12.4.2005, when his appeal failed against the final judgment and decree failed and then submitted application for issuance of certified copy of preliminary decree. His, conduct, therefore, speaks volume that he only submitted application for issuance of certified copy when his appeal against final decree failed. In these circumstances, even the judgment impugned, in CR No. 655 of 2008 is also not open to any exception. Resultantly C.R. No. 655 of 2008 also fails and the same is herby dismissed with no order as to costs.