P L D 1966 (W (PLP)

An application lies to restore the former application under Order IX, rule 9 which was dismissed in default. At the same time when that application is rejected no appeal lies from the order of rejection. Rameshar Dutt Singh and others v. Harihar and others A I R 1937 Oudh 344 dissented from. Kirpa Singh v. Mula Singh A I R 1919 Lah. 155; Abdul Rahman Shah and others v. Shahana A I R 1920 Lah. 304; Lok Ngth and others v. Mst. Sattan Bai and others A I R 1923 Lah. 302; Firm Piare Lal Mohan Lal v. Haider A I R 1927 Lah. 71; Hukam Chand v. Jowala Singh A I R 1927 Lah. 904.; Nand Lal v. Jetha Ram A I R 1929 Lah. 878 and Jugal Kishore & Brothers v. Pensioner Subedar A I R 1934 Pesh. 13 ref. Chandar Sahai v. Durga Prasad and another A I R 1924 All. 682; Kalookhan Fazledin and others v. Surji V. Ilabhadas A I R 1947 Born. 328; Sadaya Padayachi and another v. Chinnaswami Naidu A I R 1935 Mad. 609 and Hara Jumar Mitter v. Murari Mohan Dose and others A I R 1922 Cal. 572 fol. (c) Civil Procedure Code (V of 1908), S. 115‑Revision Neither question of jurisdiction involved nor any illegality or material irregularity on part of trial Court pointed out‑Application for revision, held, not competent. Ashiq Muhammad Khan for Petitioner. The petitioner‑plaintiff filed a suit against the defendant for rendition of accounts. It was dismissed in default on the 5th of September 1963. The petitioner made an application for its restoration on the 19th of September 1963. This application was also dismissed in default on the 4th of November 1963. The petitioner then moved an application for the restoration of the earlier application which he had made on the 19th September 1963. This application was dismissed on merits by the learned Civil Judge, on the 5th of January 1965. The petitioner preferred an appeal against this order which was not entertained by the District Judge, who in his order dated the 10th of September 1965, held that an appeal against the order rejecting an application for the restoration of an application under Order IX, rule 9 of the Code of Civil Procedure, was not competent. The petitioner has filed this petition under section 115 of the Code of Civil Procedure.

2. The learned counsel for the petitioner contends that the appeal against the order of the trial Court dated the 5th of January 1965, was competent and that the District Judge has erred in refusing to exercise jurisdiction vested in him. He argued that the, provisions of section 141, which permit the procedure laid down in the Code in regard to a suit being followed in respect of all proceedings in a Civil Court could also enable an appeal being made under Order XLIII, rule 1 (c). He, in support of his contentions relied on Rameshar Dutt Singh and others v. Harihar and others. (A I R 1937 Oudh 344) where it was held, "If the aid of section 141, Civil P. C., can be invoked to bring within the scope of Order IX, rule 9, an application to restore to hearing a previous application for restoration which has been dismissed for default, it seems to us that that same section can be invoked to make appealable under Order XLIII (1) (c) the order which is passed upon such an application." An application for restoring an application which was dismissed for default and which was itself filed for restoring a suit which was also dismissed for a default, does. He as held in Kirpa Singh v. Mula Singh (A I R 1919 Lah. 155); Abdul Rahman Shah and others v. Shahana (A I R 1920 Lah. 304); Lok Nath and others v. Mst. Sattan Bai and others (A I R 1923 Lah. 302); Firm Piare Lal Mohan Lal v. Haider (A I R 1927 Lah. 71) ; Hukam Chand v. Jowala Singh (A I R 1927 Lah. 904) ; Nand Lal v. Jetha Ram (A I R 1929 Lah.878); Jugal Kishore & Brothers v. Pensioner Subedar (A I R 1934 Pesh.13). Section 141 lays down that the procedure provided in the Code in regard to suits shall be applied as far as it can be mad, applicable in all proceedings in any Court of civil jurisdiction:, An application to set aside an order dismissing a suit in default is a proceeding in a Court of civil jurisdiction and an order dismissing such yin application for default is a part of such a proceeding. By virtue of section 141 provisions of Order IX, rule 9, would be applicable to such a case and an application would lie for restoring an application which has been dismissed for default.

3. An order under Order IX, rule 9, of the Code of Civil Procedure dismissing an application for the restoration of a, suit is appealable under Order XLIII, rule 1, of the Code of Civil Procedure. A question arises whether an appeal is competent also against the dismissal of a second application which was made for the restoration of the earlier application under Order IX, rule 9, of the Code of Civil Procedure, which was dismissed in default. The provisions of section 141 of the Code of Civil Procedure, in my opinion, cannot be invoked for giving a right of appeal. An appeal is always a substantive right and does not fall within the domain of procedure and that being so, section 141 cannot be pressed into service for the application of provisions in the Civil Procedure Code which deal with appeals. With great respect to the learned Judges of the Oudl: High Court in Rameshar Dutt Singh and others v. Harihar and others it seems to me that they failed to draw a distinction between matters which pertain to procedure and those which are relative to substantive rights. In Chandar Sahai v. Durga Prasad and another (A I R 1924 All. 682) it was held; "An appeal lies from an order "refusing to set aside an ex parte decree, but under the Code of Civil Procedure no appeal is provided for from an order dismissing an application which is for restoration of an application for setting aside an ex parte decree. Nor can a right of appeal be claimed by virtue of section 141 of the Code of Civil Procedure, when Order XLIII of the Code makes no provision for such an appeal." In Kalookhan Fazledin and others v. Surji V. Ilabhadas (A I R 1947 Rom. 328) it was held, "No appeal lies against the dismissal of an application for restoring to file an application which was dismissed for default and which was itself filed for restoring to file a suit which was also dismissed for default." . The same view was taken in Sadayd Padayachi and another v. Chinna swami Naidu (A I R 1935 Mad. 609) and it was held, "the provisions of Order IX, rule 9, Civil P. C., will apply to applications made under the same rule as well as to applications to set aside a dismissal of a suit. That however is not to say that the same section will avail to confer a right of appeal. It deals only with procedure, whereas a right of appeal is a substantive right. Under section 104 of the Code such a right is enjoyed only in respect of orders specified in that section or m Order XLIII, rule 1." Similar view was taken in Hara Jumar Mitter v. Murari Mohan Dose and others (A I R 1922 Cal. 572) and it was held that section 141 did not operate to give the right of appeal from an order not otherwise appealable under Order XLIII. In Lok Nath and others v. Mst. Sattan Bai and others it was held, "An application lies to restore the former application under Order IX, rule 9 which was dismissed in default. At the, same time when that application is rejected no appeal lies from the order of rejection. Order XLIII, rule 1 (c), shows that an appeal lies from an order under rule 9, Order IX, rejecting an application from an order to set aside the dismissal of a suit. This cannot be interpreted to mean that an appeal lies 'from an order under rule 9, Order IX, rejecting an application for an order to set aside the dismissal of an application; but a revision lies." I agree, with the view taken by the Lahore, Allahabad and Madras High Courts. In this view of the matter, the learned District Judge was right in holding that ho 'appeal lay.

4. It was further urged that even if no appeal lay, the present application may be treated as an application for revision against the order of the trial Court, dismissing the application on the 5th January 1965. It is obvious that no question of jurisdiction is involved in the case. The learned counsel failed to point out that the trial Court had acted illegally or with material irregularity in the exercise of its jurisdiction. Therefore, even under section 115 of the Code of Civil Procedure, an application in revision would not be competent. The petition has no merit and is dismissed in limine. S. A. H/S. Q. Petition dismissed in limine.