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Civil Revision No. 1109 of 1978, decided on 22nd December, 1980.

‑‑ S. 115‑Revision‑Preliminary decree‑Preliminary decree appealable‑Revision against such decree, held, not competent.‑[Decree‑‑Revision (Civil)].

Punjab Province v. Kanwar Latif Ahmad Khan P L D 1958 S C (Pak.) 195 ; Muhammad Swaleh v. Messrs United Grain and Fodder Agencies P L D 1964 S C 97 and Messrs Conforce Ltd. v Syed Ali Shah P L D 1977 S C 599 ref.

Abdul Aziz Qureshi and Mian Iqbal Hussain for Petitioners.

Kh. Muhammad Tufail for Respondents Nos. 1 to 3 only.

Sh. Riaz‑ul‑Haq for Respondents Nos. 4 and 5 only.

Nemo for other Respondents.

Dates of hearing : 24th May and 21st December, 1980.

The dispute relates to the estate of Irfan Ahmad deceased. He is survived by three widows, impleaded as respondents Nos. 1, 4 and 6 and whereas respondents Nos. 2, 3 and 7 are his minor sons. Respondent No. 5 is the daughter and the petitioners are the brothers of the deceased. Respondents No. 1 and her two minor sons, i. e. respondents Nos. 2 and 3 who were born out of her wedlock with the deceased, on 4th April, 1968 filed a suit against the petitioners and the remaining respondents for possession of certain properties through partition. All the petitioners were duly served and contested the suit. However, later on they defaulted in appearance. Consequently, petitioner No. 1 was proceeded against ex parte on 3rd May, 1976. Similar order was passed by the learned trial Court against the remaining petitioners on 22nd February, 1977. On the same date the plaintiffs/respondents No s. 1 to 3 and the respondents Nos. 4 to 7 entered into a compromise. It appears that the plaint was not correctly valued and proper court‑fee paid by the plaintiffs and under the orders of the Court they corrected the value and were required to pay the requisite court‑fee by 22nd March, 1977. On 2nd March, 1977 they filed an application to sue in forma pauperis which was allowed by the learned trial Court by its order dated 31st May, 1977. Earlier, on 26th June, 1977, they moved another application under Order VI, rule 17 C. P. C. for amendment of their application in forma pauperis, so as to include the relief for rendition of accounts therein. On 5th November, 1977 still another application was filed by them for correction of the description of the properties mentioned in the plaint. Both the applications were accepted. The plaintiffs‑respondents thereupon filed an amended plaint. It is to be noticed that the permission to sue as pauper and the applica tions for amendment were allowed by the learned trial Court, when the petitioners had already been proceeded against ex parte.

2. On 15th December, 1977 the learned trial Court passed a prelimi nary decree, for partition of the property and for a mesne profits, in accordance with the shares as envisaged by the compromises entered into between the plaintiffs‑respondents and respondents Nos. 4 to 7. Under the same order a Local Commissioner was also appointed, to suggest the mode of partition.

3. Through this revision petition, the orders of the learned trial Court, in allowing the pauper application and passing the preliminary decree, are sought to be set aside.

4. It has been argued on behalf of the petitioners that since under the amended plaint, additional relief was claimed by respondents Nos, 1 to 3 and some properties not originally mentioned in the plaint, were added therein, in the garb of correction of the description of the properties, they were entitled to fresh notices and the ex parte orders already passed against them could not be a bar in this respect. In the same wake it was submitted that under the provisions of Order XXXIII, rule 6, C. P. C., they should have been given a notice of the date for receiving evidence of respondent's pauperism. It was further contended, that in any case, after registration of the pauper application as a suit, summons should have been again issued to them. In support of this submission, the learned Counsel heavily relied on the Punjab Province v. Kanwar Latif Ahmad Khan (P L D 1958 S C (Pak.) 195). The compromise enfered into between that plaintiffs‑respondents and respondents Nos. 4 to 7 was also assailed by him.

5. The learned counsel for respondents Nos. 1 to 3 has raised a formidable objection that the preliminary decree being appealable, the remedy of the petitioners lay in filing an appeal and that therefore the revision petition was not competent.

6. I have examined the trial Court's record. It is correct that the petitioners were not served in the matter of pauper application. After the filing of the amended plaint as well, no notice was issued to them. It may be observed that so far as the amendment of the plaint is concerned, the reply of the respondent's learned counsel was that the filing of the amended plaint, with the permission of the Court, would be effective from the date of original institution of the suit, and that, therefore, it was not necessary to issue any notice to the petitioners in this behalf. The peti tioners' claim that they should have been served in the pauper application was also controverted by him.

7. In the precedent case, relied upon by the petitioners. It was maintained that the trial Court's failure to issue proper summons to the defendant, after decision of the question of pauperism and registration of the pauper application as the suit vitiated the entire trial including to ex parte decree passed against him. On the basis of this authority, the petitioners' learned counsel, developing his submissions, further argued that as the orders granting pauper application and the passing of the preliminary decree without hearing the petitioners were void, they could seek the removal thereof. On the strength of the dictum land down in Muhammad Swaleh v. Messrs United Grain and Fodder Agencies (PLD1964SC97) it was ‑vehemently argued that the impugned orders and the entire super structure based thereon, were a nullity in the eye of law, and the Court was bound to ignore the same. It was on these premises that the learned counsel canvassed that the revision petition was competent.

8. It is to be noticed that through the instant revision petition the preliminary decree has also been assailed. Section 115, C. P. C. provides the revision only in a case decided, in which no appeal lies. There is no gainsaying that an appeal could have been filed against the preliminary decree. It appears to me, that the proper course for the petitioners was to have challenged the preliminary decree through an appeal and then in these proceedings, in pursuance of section 105, C. P. C., questioned the validity of all the intermediate order passed by the learned trial Court, It is discernible from the record that a court‑fee of Rs. 15,000 was payable on the appeal. Presumably, for this reason, the petitioner resorted to revision petition instead of filing an appeal.

9. It may further be added that the respondents in theirs.' M. No. 6692/C‑78, filed on 4th December, 1.978 specifically raised an objection that the revision was incompetent but the petitioners did not pay any heed to this objection. It is also noteworthy that the revision petition was filed on 12th September, 1978 when the period of limitation for appeal had already expired. Muhammad Swaleh's case has no application to the instant revision petition. The petitioners' failure to seek proper remedy by filing an appeal cannot be mitigated by dubbing the preliminary decree as void and a nullity. In the connection a reference to Messrs Conforce Ltd. v. Syed Ali Shah (PLD1977SC599), at p. 601 will provide:‑

"...However, in view of the frequency with which gross negligence is sought to be condoned on the plea that the impugned order was void or without jurisdiction, 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 it may, therefore, create rights cannot be altered by describing it as void or without jurisdictions. And, further, the expressions void orders and orders without jurisdiction are overworked expres sions

10. I am, therefore, inclined to uphold the respondent's objection that the revision petition is not competent. It, therefore, is not necessary to adjudicate upon other contentions raised by the parties.

11. For all these reasons, this revision having been found unmain tainable, is dismissed with costs.

12. As this case is lingering on for the last about 12 years, the learned trial Court shall dispose it of expeditiously.

M. Y. M. Petition dismissed.

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