HAMID ALI MIRZA, J.---This civil appeal by leave of this Court is directed against the judgment dated 20-10-1997 passed by a learned Single Judge of the High Court in Revision Application No, 280 of 1994 (Maqbool Ahmed Bhatti v. Zeeshan Ahmed Bhatti and another), whereby the judgment and decree passed by the Vth Additional District Judge, Karachi South, in Appeal No,175 of 1993 and the judgment and decree passed in Suit No,345 of 1983 by the learned IVth Senior Civil Judge, Karachi South, were reversed/set aside and the revision application was allowed.
2. The brief facts of the case are that on 18-1-1983 the appellant/plaintiff filed Suit No,345 of 1983 against the respondents for dissolution of a partnership firm known as New Al-Tahir Goods Transport Company and rendition of accounts, which partnership had come into existence on 6-7- 1980 and the business of the firm was of carriage and transportation of goods. The partnership was at will wherein the appellant/plaintiff and 20 per cent. Share in the profits and the two respondents had each 40 per cent. Share in the profits. The appellant/plaintiff was being paid Rs,2,000 per month and such payment was made till July, 1992, whereafter the same was stopped, consequently, he served a notice upon the respondents calling upon them to make payment of his share, but no response was given, consequently, the suit was filed. The respondents filed separate written statements admitting the appellant/plaintiff to be the partner in the firm to the extent of 20 per cent. Share in the profits, but denied their liability for payment of any amount to the appellant.
Learned trial Court after framing of the issues recorded evidence of the parties and after hearing the counsel for parties passed preliminary decree on 15-11-1988 under Order XX, Rule 15, C.P.C.
Directing the respondent to produce all accounts of dealings and transactions of partnership or other documents and to furnish statement of particulars relating to the partnership within one month in order to ascertain the share of the minor appellant/plaintiff up to the dissolution of the partnership. Against this preliminary decree passed on 10-11-1988 and drawn on 15-11-1988, no appeal was preferred. However, after taking accounts, final decree was passed on 27-5-1933 by the Vth Senior Civil Judge, Karachi South while such decree was drawn on 6-11-1993. Respondent No,1, Maqbool A. Bhatti, preferred Appeal No,175 of 1993 against the judgment and decree dated 27-5- 1993 before the District Judge, Karachi South, which was disposed of by learned Vth Additional District Judge, Karachi South, dismissing the appeal. He preferred Civil Revision Application No,280 of 1994 before the Sindh High Court at Karachi against the judgments and decrees dated 27-5- 1993 passed by IVth Senior Civil Judge, Karachi South in Suit No,345 of 1983 and in Appeal No,175 of 1993 passed by the Additional District Judge, Karachi South, which was allowed.
3. Leave was granted by this Court on 16-7-1998 to consider whether the High Court was right in dismissing the suit in spite of the preliminary decree having been passed against respondent No,1 Maqbool A. Bhatti.
4. The contention of the learned counsel for the appellant is that preliminary decree was passed by trial Court on 10-11-1988 and drawn on 15-11-1988, but was not appealed against by respondents, therefore, respondents were precluded from disputing its correctness in any appeal. He further submitted that final decree in suit was passed on 27-5-1993 and drawn on 6-11-1993 and appeal against final decree was preferred on 22-9-1993, which was dismissed. He further submitted that there were concurrent findings of fact of the two Courts below and that first two Courts have legally and properly exercised the jurisdiction vested in them by law and there was no misreading or non- reading of evidence on record therefore, interference by High Court was neither legal nor proper in the exercise of revisional jurisdiction.
5. The learned counsel for the respondent No,1, has submitted that respondent No,1 was not liable to pay any amount to the appellant and further that the admission of co-partner, respondent No,2, was not binding upon him.
6. The admitted position in this appeal is that after the preliminary decree for accounts was drawn by trial Court, it was not appealed against by respondents. Section 97 of the Code of Civil Procedure reads:- "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." The question that appellant/plaintiff was partner in firm with respondents was admitted by the latter and such finding was arrived at by the trial Court. So far the liability of the respondent, it was also determined after taking of the accounts by the Nazir, as such the final decree was prepared.
The respondent having not appealed against preliminary decree passed by trial Court, it could not be legally re-opened even in the revision. Reference may be made to Friend Engineering Corporation v. Government of Punjab 1991 SCMR 2324 wherein this Court has observed as under:-- "7. A preliminary decree is appealable, but the respondent did not prefer any appeal against ex parte decree dated 12-5-1976. It is in the report of the Local Commissioner that from 16th December, 1976, to 26th December, 1977, officials of the department appeared before him on several occasions, produced the account books and participated in the proceedings. The trial Court's order also reflects that the counsel for the respondents entered appearance in the Court alongwith the Local Commissioner on 29-11-1976, 10-1-1977 and 26-12-1977. It can thus safely be presumed that they stood posted with the knowledge of the preliminary decree in pursuance whereof the Local Commissioner had embarked upon taking the accounts. Section 97, C.P.C., expressly ordains: Where any party aggrieved by a preliminary decree... ...Does not appeal from such decree, he shall be precluded from disputing its correctness in an appeal, which may be preferred against the final decree.'
'It was not open to the respondents to throw a challenge to the validity of the preliminary decree against an appeal from the final decree. The order of the High Court in striking down the preliminary decree is evidentially violative of mandatory provisions of section 97, C.P.C., and thus, cannot be sustained. The failure of the learned Civil Judge to suo moto take notice of the form of the suit and passing of preliminary decree by him without calling upon the appellant to establish that the respondents were an accounting party would at the most be an illegality against which they could seek remedy through an appeal provided by section 97, C.P.C. As regards a void order, it will not be out of place to refer here to the following observations appearing in M/s. Conforce Ltd. v.
Syed Ali Shah etc. PLD 1977 SC 599: ... ....We would observe that a void order or an order without jurisdiction is only a type of an illegal order passed by a Court and the fact that it has been passed and that it may, therefore, create rights cannot be altered by describing it as void or without jurisdiction. And, further, the expressions 'void orders' and 'orders without jurisdiction' are overworked expressions.'
It is significant to note that there is nothing in the impugned judgment to reflect that the High Court proceeded on the assumption that the preliminary decree was void and a nullity. It appears that section 97 was not even present to the mind of the learned Single Judge. The respondents could not have been permitted to circumvent the period of limitation and bypass the provisions of section 97, C . P. C . ' " Reference may also be made to Conforce Ltd. v. Rafique Industries Ltd. PLD 1989 SC 136 wherein this Court at page 143 has held:-- "Section 97 of the C.P.C. Debars a party from questioning the correctness of a preliminary decree in an appeal preferred from the final decree. Therefore, if a party fails to challenge a preliminary decree within the prescribed period of limitation, the party would be precluded from challenging the same in an appeal against the final decree. None of the parties filed an appeal against the preliminary decree passed and drawn up by the Court in this case." In the instant case the Nazir was directed to take accounts but the respondent No,1 failed to submit accounts before him, consequently, after the submission of accounts by respondent No,2, the final decree was passed and drawn. The respondent No,1 has raised same plea that he was not liable to an amount which fact was determined after accounts were taken by Commissioner for taking accounts/Nazir before preliminary decree was passed therefore said ground cannot be permitted to be raised in this appeal after final decree. Pleas raised and decided prior to passing of preliminary decree could not be re-agitated and reopened by High Court in the revisional jurisdiction on the same grounds. Reference may be made to Shamsuddin v. Imamuddin PLD 1982 Karachi 327 at 330 wherein it has been observed:-- "On behalf of the appellant the impugned order was first assailed on the ground that the accounting period fixed and determined by the preliminary decree passed by the L.P.A. Bench could not be varied subsequently. It is no doubt true that under the principle underlying section 97, C.P.C., any defect in the proceedings prior to the passage of the preliminary decree cannot be agitated and while passing a final decree the Court cannot re-open matter which has already been decided by the preliminary decree."
It is true that admission in respect of liability of respondent No,2 in his individual capacity cannot bind the co-partner, respondent No,1, but in view of the circumstances of the case that the appellant being a minor and very close relative of the respondents, the said statement of admission of respondent No,2 would be a relevant factor in appreciating the evidence adduced by the parties. On assessm ent of the evidence adduced by the parties the trial Court was justified in passing the decree. We find substance in this appeal, hence impugned judgment of the Sindh High Court is set aside and appeal is allowed, maintaining the judgment and decree in the sum of Rs,97,240.50 against the respondents passed by the Senior Civil Judge, Karachi South and affirmed by the Additional District Judge, Karachi South.