MUHAMMAD NAEEM ANW AR, J.---This civil revision is directed against the judgment and order dated 22.02.2020 of the learned Additional District Judge-XIII, Peshawar , by which, the appeal filed by the petitioner against the judgment and order of the learned Civil Judge-XIII, Peshawar dated 22.02.2019, was dismissed.
2. Facts leading to the institution of the instant petition are that the respondent has filed a suit seeking declaration that she is the owner in possession of 1/2 share in the house bearing No.3770 measuring 2-1/2 Marlas, situated at Mohallah Naukocha No.2 Tehsil and District Peshawar on the basis of deed No.4093, Bahi No.1 Volume 1789/252 dated 19.10.2001 with which petitioner has got no right whatsoever , to the extent of her share. Decree for recovery of possession through partition to the extent of her own share was also sought within an added prayer of perpetual injunction that the petitioner be restraine d from interfering in her possession and from altering the nature of suit house by any mean. In response to the notice issued by the learned trial Court the petitioner/ defendant appeared and contested the suit through her written statement on various legal and factual objections. The parties were directed to adduce their evidence. During the course of evidence, the petitioner/defendant disappeared from the proceedings which resulted into ex-parte proceedings initiated against her. After competition of ex-parte evidence, ex-parte preliminary decree was passed against her on 20.06.2017. Plaintif f/respondent has filed an application for final decree on 18.07.2017, the notice of which was issued to the petitioner , however , after observing the legal and codal formalities of petitioner's service through all means i.e. service of notice on petitioner's husband / attorney , service through affixation and lastly substituted service through publication of a notice in daily Pakistan followed by her non-appearance, she was proceeded against ex-parte on 05.12.2017 and thereafter , ex-parte proceedings were culminated into ex-parte final decre e on 20.06.2018, followed by execution application when the petitioner has submitted an application under Order IX Rule 13 of C.P.C, 1908 for setting aside of ex-parte decree dated 20.06.2018. The application was contested through proper reply by the respondent / decree holder . The petitioner's application was dismissed by the learned trial Court on 22.02.2019, being dissatisfied from the findings of the learned trial Court, the petitioner filed an appeal which too met the same fate, hence the instant petition.
3. Learned counsel for the petitioner contended that neither the petitioner was served personally nor she got the knowledge of ex-parte decree during execution proceedings, pending against her before the executing Court then she filed the application for setting aside of ex-parte decree within an application for condonation of delay under Section 5 of the Limitation Act, 1908. Next, he added that the petitioner has got valuable rights with the disputed house and that on the basis of principle of natural justice audi alterim partem the petitioner deserves to be given right of hearing. It was also contended that application for setting aside of ex-parte decree shall be dealt with under the provisions of Article 181 of the Limita tion Act, 1908, which provides three years' limitation for setting aside ex parte decree, in the circumstances in which the defendant joined the proceedings and later-on disappeared. He continued that under Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has got fundamental rights of being heard but both the learned Courts below have not adverted to this legal aspect of the case, which resulted into grave miscarria ge of justice. In order to fortify his submissions, he relied on 1973 SCMR 403, PLD 1971 SC 161, 2018 YLR 779, 2006 CLC 92, 1986 CLC 1241 , PLD 1974 Lahore 434, PLD 1970 Lahore 6, 1992 CLC 1362 , 2004 YLR 1535 , 2000 CLC 1352 , 2005 YLR 2817 and 2006 YLR 108 .
4. Conversely , learned counsel for decree holder strenuously opposed the arguments advanced by the petitioner by contending that the petitioner has not challenged the preliminary decree therefore, final decree could not be assailed under Section 97 of the Code of Civil Procedure, 1908. He went on to say that not only the petitioner was in knowledge of ex parte preliminary decree but after filing of application for final decree, the petition; was served through her attorney/husband namely Jasim Khan who has exchanged nasty words when the clerk of local commission informed him about commission's proceedings. He referred the notices issued to the petitioner during the proceedings for final decree. Further more, when the local commission procee ded to the spot and conducted the commission proceedings the petitioner did not opt to join the Court proceedings, in such circumstances, the application filed for setting aside of ex-parte decree would be treated under Article 164 of the Limitation Act, 1908 which provides thirty days' limitation for setting aside ex-parte decree, from the date of decree. To substantiate his contentions, he relied on 2008 YLR 33, 2019 MLD 1082 , 2005 SCMR 609, 2017 YLR 900, 2006 SCMR 631, 2008 SCMR 227, 2015 CLC 1290 and 2005 MLD 157.
5. Arguments heard and record perused.
6. Admittedly , undisputedly and undeniably , the petitioner joined the proceedings and submitted her written statement through her attorney namely Jasim Khan who happened to be her husband. It is significant to mention that the instant petition too was filed by the petitioner's special attorney and her husband Jasim Khan. The petitioner has never disputed rather admitted that she was represented through Jasim Khan before the trial Court where her attorney has submitted written statement. Perusal of record reveals that after joining the proceedings, witnesses of respondent / plaintif f were cross-examined by the petitioner and he remained in picture till 10.04.2017 when the learned trial Court directed issuance of a notice under Order IX, Rule 2, C.P.C. 'to the petitioner as well as her counsel and the proceedings were posted for 22.04.2017. The notice was served upon Mr. Afroz Ahmad, Advocate, who personally received the same whereas the notice issued to the petitioner returned with the report of Process Server (Waqas Ahmad) dated 13.04.2017, on the overleaf of the notice that the petitioner denied from the service by contending that without the permission of her husband she could not sign any notice and her husband / attorney has also refused from the service. When no one turned up on behalf of the petitioner on the date fixed, the learned trial Court has left with no option but to continue with ex-parte proceeding s which ultimately resulted into preliminary decree dated 20.06.2017.
7. It would not be out of context that since 20.06.2017 till today , the preliminary decree was not challenged by the petitioner . When the learned counsel for petitioner was confronted with this legal aspect, firstly he contended that preliminary decree was challenged through the application filed under Order IX, Rule 13, however , the date of decree was inadvertently mentioned as 20.06.2018 instead of 20.06.2017. Scanning of record reveals that in happening of events the preliminary decree was passed on 20.06.2017 and final decree was granted on 20.06.2018, the application for setting aside of ex parte decree was turned down by the lower court on 22.02.2019 against which the appeal was dismissed on 22.02.2020. Moreso, the contents of application manifested that the petitioner never intended in seeking the set aside of preliminary ex-parte decree. Not even an iota in this regard was ever mentioned in the application. In such circumstances, when preliminary decree was not challenged, provisions of section 97 of the Code of Civil Procedure, 1908 would come into play, which precludes the challenging of final decree, which reads as: - "97. Appeal from final decree where no appeal from preliminary decree.--- Where any party aggrieved by a preliminary decree passed after the commencement of this Code does not appea l from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree".
8. In Conforce Limited v. Rafique Industries Limited (PLD 1989 SC 136), it was held by the Hon'ble Supreme Court that "section 97 of C.P.C. debars a party from questioning the correctness of preliminary decree in an appeal preferred from final decree. Therefore, if a party fails to challenge preliminary decree within the prescribed period of limitation, the party would be precluded from challenging the same in an appeal against final decree". The Privy Council in Ahmed Musaji Saleji v. Hashim Ebrahim Saleji (AIR 1915 PC 116) has held that failure to appeal against preliminary decree would operate as a bar to raise any objection to it in an appeal filed against final decree.
Likewise, it was held in AIR 1963 Supreme Court 992 that a preliminary decree passed, whether it is in a mortgage suit or partition suit, is not a tentative decree but must, insofar as the matters dealt with by it are concerned, be regarded as embodying in the final decision of the Court passing that decree.
9. As the petitioner has not challenged the preliminary decree either through appeal or by filing an application for setting aside it, especially when on her disappearance she was served with a notice through her husband / special attorney under Order IX, Rule 2, C.P .C, would be precluded from raising the objection/challenging the final decree.
10. Even otherwise, the petitioner was in knowledge of not only of preliminary decree but also the proceedings being conducted by the learned trial court in the application submitted by respondent for final decree, when the learned local commission through his clerk has sent notice and intended that the special attorney of petitioner be served, who instead of receiving the notice and participating the proceedings exchanged some nasty words and threatened him of dire consequences, whereupon the learned local commission informed the Court regarding the aforesaid circumstances with the request that some other local commission be appointed as he would not be able to proceed with the matter . Apart from the above, when the local commission visited the spot, in order to determine as to whether the decreed property is partitionable or not and in case if it is partitionable what would be the mode of partition. The commission proceedings were conducted on 08.05.2018 and the learned local commission has submitted its report on 11.05.2018, where-after final decree was passed on 20.06.2018. The petitioner opted to submit the application on 16.11.2018. The question before this Court would be as to whether the application would be treated under Article 164 or 181 of the Code of Civil Procedure, 1908. It is undisputed that the petitioner earlier participated in the proceedings and therea fter absented herself. The Hon'ble Supre me Court in case titled "Shahid Parvez alias Shahid Hameed v. Muhammad Ahmad Ameen" (2006 SCMR 631) has observed that "when the defendant Joined proceedings before the trial Court and afterwards on - his absence an ex parte decree was passed. Defendant after 4 months filed application for setting aside ex parte decree which application was dismissed being time barred. Article 164 of Limitation Act provides 30 days to file application for selling aside ex parte decree because petitioner / defendant had participated in the proceedings before the trial Court". The said principle was followed by the Hon'ble Supreme Court in case titled "Secretary Education Department, Government of NWFP Peshawar and others v. Asfandiar Khan" as reported in (2008 SCMR 287). When the petitioner was fully aware regarding the pending proceedings before the trial Court and neither he opted to join the proceedings nor submitted the application within the period of 30 days as provided for setting aside ex parte decree then filing of application after 5 months of ex parte decree would be hit by limitation, which was rightly dismissed by the learned Courts below . It is significant to mention that with the application for setting aside ex parte decree petitioner has submitted an application under Section 5 of the Limitation Act by mentioning therein that she being pardanasheen lady had got no knowled ge of ex parte judgment dated 20.06.2018 thus the delay in filing of application was not intentional but due to unavoidable reason, the aforesaid contentions of petitioner is without any plausible explanation because on each and every occasion not only the petitioner herself but her husband too was informed by the learned Trial Court but neither she nor her husband appeared before the Court and deliberately avoided participating in proceedings. As such, the said application was also rightly discarded by the learned lower Courts.
11. Apart from the above, Malik Muhammad Ajmal Khan, Advocate, learned counse l representing the petitioner also contended that there seems a collusion between special attorney for petitione r namely Jasim Khan and the husband of decree holder , if it is true then the learned counsel himself has got no locus-standi being engaged as a counsel by the Jasim Khan / husband of petitioner . Had there been any collusion between Jasim Khan and husband of decree holder , the said factum of connivance or conspiracy would also be attributed to the learned counsel for the petitioner .
12. For the reasons stated above, the instant petition stands dismissed being without substance.