1. The brief facts out of which the present revision petition arises are that a suit for partition was instituted on 31-1-1977 by the respondents/plaintiffs against the petitioner/defendant and one Shaukat Ali (present respondent No.3) in respect of the Shop/Property No.332, Ward No.1, Village Jalalpur Pirwala, Tehsil Shujabad, District Multan. The present petitioner/defendant controverted the allegations levelled in the plaint through written statement jointly filed by him and respondent No.3 Shaukat Ali. The learned trial Court vide its judgment and decree dated 21-5-1985 dismissed the suit of the respondents/plaintiffs. The respondents/plaintiffs being aggrieved by the judgment and decree of the trial Court filed an appeal before the District Judge, Multan, which was entrusted to the learned Additional District Judge, who accepted the appeal vide his judgment and decree, dated 11-7-1985 in the following terms:-- "In view of the above discussion, the findings of the learned trial Court on Issues Nos.2 and 4 cannot be maintained and hence the same are hereby set . Aside with the result that his appeal is hereby accepted and the case is hereby sent back to the learned trial Court for passing a preliminary decree in favour of the appellant after determination of separate shares of the parties in it."
2. The present petitioner/defendant being aggrieved by the judgment and decree of the learned Additional District Judge, filed civil revision before this Court, which was dismissed vide judgment and decree dated 4-2-1986. The learned trial Court after the judgment and decree of this Court determined the shares of the parties vide order dated 10-7-1988 and appointed Mr. Ahmad Hussain Hamzai, Advocate as Local Commissioner to effect the partition by visiting the property in question.
3. Order of the trial Court dated 10-7-1988 is reproduced hereunder: -- The Local Commissioner submitted his report before the trial Court and the trial Court on the basis of the report passed final decree vide its judgment and decree, dated 30-3-1991. The present petitioner being aggrieved by the judgment and decree of the trial. Court filed appeal before the District Judge, Multan, who decided the same vide his judgment and decree dated 5-4-1993 in the following terms:-- "I have considered the foregoing facts and the arguments addressed at the bar. The order dated 10-7-1988 was passed by the learned trial Court whereby the shares of the parties were determined in accordance with the order of the learned Additional District Judge, Multan, which was upheld even by the Honourable High Court Mr. Ahmad Hussain Hamzai, Advocate was appointed as Local Commissioner to effect the partition by visiting the property in question. It is, thus, obvious that though the words 'preliminary decree' were not used while making the order dated 10-7-1988 by the learned lower Court but in substance the aforesaid order amounted to 'preliminary decree'. The nature of the aforesaid order becomes more clear from the order dated 10-7-1990 which reads as under:-- It follows from the above order that the report of the Commissioner was called in the light of the order dated 10-7-1988 which was being treated as a preliminary decree for partition of the property in question.
4. "I have taken into consideration the aforesaid objections. The appellant/defendant is wrong to say that he was not heard by the Local Commissioner. On the contrary, he appeared before the Local Commissioner on 5-5-1990 but he declined to participate in the proceedings of the plea that the other cases should be decided first. He also deposed before the Local Commissioner he did not remember the number of the shop and that he also did not know as to how many shareholders were the owners of that shop. The report of the Local Commissioner Mark ' A' is clear to that effect.
5. In such a situation, it does not lie in the mouth of the appellant/defendant that he was not heard by the Local Commissioner. The learned counsel for the appellant/defendant when confronted with the situation, had nothing to say in respect of the report of the Local Commissioner. "
6. Hence the present revision petition.
2. Learned counsel for the petitioner contended that the learned trial Court did not decide the case in terms of the direction of the Appellate Court, dated 11-7-1985, i.e. Failed to determine the share and passed preliminary decree, therefore, trial Court could not pass final decree. He further contended that the trial Court as well as the Appellate Court failed to decide the objection of the petitioner against the report of Local Commissioner. He further contended that both the Courts below passed the judgment and decree in violation of section 33 read with Order 22, Rule 5, C.P.C.
7. And section 97, C.P.C. He further contended that petitioner is well within his right to challenge the final decree. He further contended that interim order of the trial Court dated 10-7-1988 may not be termed as preliminary decree on any principle of law.
3. Learned counsel for the respondents contended that both the parties are inter se closely related to each other and the property in question is of their later father by stating the pedigree-table which is reproduced hereunder:-- He further contended that learned counsel of the petitioner did not argue on factual side at all and raised legal points, which were duly considered by both the Courts below and decided in accordance with law. He further contended that learned trial Court passed the preliminary decree on 10-7-1988 and the contents of the order dated 10-7-1988 amounted to preliminary decree in spite of the fact that the words 'preliminary decree' were not mentioned by the trial Court, which tantamount to an irregularity which could not create any prejudice to the petitioner. He further contended that the petitioner appeared before the Local Commissioner on 5-5-1990 and his statement was recorded. He further contended that petitioner did not file any appeal against the preliminary decree dated 10-7-1988, therefore, he is debarred to file appeal or revision against the final decree.
4. I have given my anxious consideration to the contentions of the learned counsel for the parties and perused the record. It is better and appropriate to reproduce the relevant provisions of the Civil Procedure Code for ready reference:-- "Section 2(2).--- 'Decree' means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint.
8. Explanation.--- A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final.
9. Section 97. Appeal from final decree where no anneal from preliminary decree.--- Where any party aggrieved by a preliminary decree passed after the commencement of this Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree.
10. Section 99. No decree to be reversed or modified for error or irregularity not affecting merits or Jurisdiction.--- No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court. "
11. The main controversy between the parties reveals whether the order, dated 10-7-1988 falls under the preliminary decree or not? The contents of the aforesaid order reveal that the learned trial Court determined the respective shares of the parties coupled with the fact that the trial Court vide order, dated 10-.7-1988 appointed Local Commissioner, who was directed to submit report, which was being treated as preliminary decree, as the order, dated 10-1-1990 of the trial Court clarified this ambiguity and the order, dated 10-1-1990 is to the following effect:-- It is pertinent to mention here that order dated 10-7-1988, report of the commission and order dated 10-1-1990 revealed that the trial Court determined the shares of the respective parties, as directed by the Appellate Court vide judgment and decree dated 11-7-1985. In all respect order dated 10-7-1988 contemplates as preliminary decree. Even if the learned trial Court failed to mention the word "preliminary decree" in its order dated 10-7-1988 in merely an irregularity, which could be cured by virtue of section 99 of the Civil Procedure Code. Non-mentioning of the word preliminary decree does not prejudice the A petitioner in any case. I am fortified by the judgment 1'995 CLC 1257. The subsistence of the order dated 10-7-1988 contemplated as preliminary decree.
12. Somewhat similar proposition of law. Was considered by the Honourable Supreme Court in reported judgment PLD 1989 SC 136 and observed as follows:-- "Although, decree granted by Special Court was described as preliminary decree, it was, in substance, a final decree as it did not contemplate any further proceedings."
13. "The explanation to section 2(2), C.P.C. Lays down that a decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of."
14. The word "preliminary decree" was interpreted by the Honourable Peshawar High Court in the following terms (PLD 1960 Pesh. 37) and observed as follows:-- "Preliminary decrees in cases where the statute makes a provision for them stand on an independent footing as independent entities and there is no question of merges of these decrees in the final decrees that follow them. In fact under section 97, C.P.C. a party aggrieved by a preliminary decree not filing an appeal against it, will be precluded from disputing its correctness in any appeal, which may be filed against a final decree. A preliminary decree does not become extinct after passing of the final decree, nor does the latter effect the maintainability of an appeal against the former and this will be so even if the appellant has not asked for stay of proceedings after the institution of his appeal or has not filed an appeal against the final decree. The final decree is in fact dependent on the preliminary decree stating and applying with precision with a preliminary decree has ordained and if the latter is set aside on appeal, the former falls with it."
15. Section 97 was considered by the Honourable Supreme Court in 1991 SCM R 2324 and laid down the following principle:-- "It was open to respondent to throw challenge of validity of ex parte preliminary decree any appeal from final decree and order of High Court striking down ex parte preliminary decree was evidently violative of section 97 and, thus, could not be sustained. "
16. 5.In view of the above discussion, the judgments of both the Courts below did not violate any principle of law and fact, decided the case in accordance with the principle laid down by the superior Courts. The contents of the order dated 10-7-1988 coupled with the circumstances contemplates 8 preliminary decree by virtue of section 2(2), Explanation, C.P.C. In all respects and the petitioner failed to agitate the same before any higher forum. Therefore, I appeal as well as revision petition are not maintainable by virtue of section 97 of the Code of Civil Procedure. I am also fortified by Jamal-ud-Din's l8 case 1983 CLC 286. The trial Court did not commit any material irregularity which caused prejudice to the petitioner. The word "preliminary decree" was not written in order, dated 10-7-1988, is curable by virtue of section 99 of the C.P.C. The other contention of the learned counsel for the petitioner has no force.
6. It is pertinent to mention here that learned counsel for the petitioner did not say word on merits, therefore, findings of fact concurrently decided against the petitioner by both the Courts below are final and this Court while exercising jurisdiction under section 15, C.P.C. Has very limited jurisdiction to disturb the concurrent findings of fact arrived by both the Courts below after proper appreciation of evidence, unless and until both the Courts below misread or non--read the record.
17. Learned counsel for the petitioner failed to point out any piece of evidence, which was misread or non-read by both the Courts below.
18. 7.In view of what has been discussed above, this revision petition has no merits and the same is hereby dismissed with no order as to costs.
19. H.B.T./F-67/K