P L D 1954 Lahore 575 (PLP)

SOOFI, J.‑The facts giving rise to this revision petition are as follows: On the 27th of March 1950, the Central Bank of India Limited, Lahore Branch, instituted a suit against Ghulam Farid Muhammad Latif, defendant‑petitioners for the recovery of Rs. 1,74,072‑14‑0 in the Court of Ch. Tufail Ahmad Civil judge, on the ground that the petitioners had taken cash credit facility in two accounts opened with the respondent against the pledge of stocks of wheat, gram, cotton, cotton seed etc. This amount was arrived at after giving the defendants the credit for the sale proceeds of the pledged stocks. It was inter alia pleaded by the defendants in para. No. 9 of the written statement dated the 27th of. January 1951, that the value of the stocks pledged by them amounted to Rs. 12,19,980, and on the rendition of the accounts by the Bank regarding the disposal of the pledged stocks it would be found that a large sum of money was due to the defendants in respect of the said accounts. On the 21st of December 1950, the defendants instituted a suit against .the plaintiff Bank for the recovery of Rs. 3,88,912‑3‑

9. This sum appears to have been arrived at by deducting the sum of Rs. 8,31,067‑12‑3, the amount claimed by the Bank to be due on the 15th of August 1947, from the sum of Rs. 12,19,980, alleged by the defendants to be the value of the stocks pledged with the Bank. It is thus clear that the two cross suits related to one and the same matter. On the 15th of December 1951, the two suits were consolidated by the order of Ch. Tufail Ahmad, Civil Judge 1st Class, Lahore. From that day onwards all the proceedings were recorded in the suit "Central Bank of India Ltd. v. Messrs. Ghulam Farid Muhammad Latif". On the 1st of March 1952, issues were framed in that suit for the decision of both the suits. The evidence of the witnesses of the plaintiff was, recorded at Delhi by a Commissioner appointed by the Civil Judge The only evidence for the Bank that remained to be recorded was that of Mr. Jariwala and Mr. Tadiwala who were to be examined at Lahore. Ch. Tufail Ahmad, Civil Judge unfortunately died oft 16th July 1952, and the cases were transferred to the Court of Ch. Muhammad Siddiq, Civil Judge, who issued a notice dated the 7th of October 1952, directing the parties to attend his Court on the 14th of October 1952. Mr. F. M. Anwari, Standing Counsel and Legal Advisor of the Bank attended the Court on the 14th of October 1952, on behalf of the Bank. Ch. Muhammad Siddiq fixed the case for the 8th of January and the 14th of January 1953 for the production of the evidence of the parties. The District judge transferred the suits to the Court of Sh. Attaullah Qureshi, Senior Civil Judge, Lahore at this stage. Mr. Quershi issued notices dated the 3rd of November 1952, to the parties directing that they or their counsel should attend the Court on the 8th of November 1952. No notice was served on the plaintiff‑Bank or its standing counsel and legal advisor Mr. Anwari, through whom the suit had been instituted. A notice was, however, taken to Malik Muhammad Hussain Advocate who was engaged by the Bank sometime after the institution of the suit, and according to the arrangement with the Bank he had to appear only on important dates. There is a note in pencil on the back of the notice in the hand‑writing of Malik Muhammad Hussain that "most probably he shall not be in Lahore on the 8th of November, 1952". This note was neither dated nor signed, but it is common ground between the parties that the notice was brought to Malik Muhammad Hussain on the 7th of November, 1952. On the 8th of November, 1952, no one appeared on behalf of the plaintiff‑Bank and the suit was dismissed by the Senior Civil judge by an order purporting to be under Order 9, rule 8, C. P. C. In the application dated the 30th of December, 1952, presented on 2nd January 1953 the plaintiff‑Bank prayed for the restoration of the suit under Order 9, rule 9, Order 47, rule 1 and section 151 of the C. P. C. This application was put in through Mr. Anwari, the Standing Counsel and Legal Advisor of the Bank. It. was stated in the application that ‑the petitioner had come to know on the 30th of December, 1952, on the inspection of the record, that the suit had been dismissed for default on the 8th of November, 1952. It was further stated that no notice was served on the plaintiff Bank or on Mr. F. M. Anwari their Standing Counsel and Legal Advisor, while a notice was served on the 6th or 7th of November, 1952, on Malik Muhammad Hussain, Advocate, who noted on the back of the notice that he would not be in Lahore on the 8th of November, 1952. It was also stated in the application that before leaving Lahore Malik Muhammad Hussain sent a chit to Mr. F, M. Anwari, the Standing Counsel and legal Advisor of the Bank informing him of the new date fixed in the case. But as Mr. F. M. Anwari was not at home, the chit ‑was delivered to his servant. It appear s that the chit was lost or mislaid by the servant of Mr. F. M Anwari, for Mr. F. M. Anwari says that he had not received it. It was also stated in this application that Malik Muhammad Hussain was to appear only on the dates when some proceedings were to be conducted, but not on the dates on which nothing was to be done. This application was supported by an affidavit of Mr. Jariwala who is the Chief Agent of the plaintiff‑Bank. It was also contended in that application for restoration, and this fact is of considerable importance that the proceedings in the suit instituted by the plaintiff‑Bank and the cross suit brought by Messrs Ghulam Farid‑Muhammad Latif against the Bank, had been consolidated into one, and no notice in the cross‑suit for appearing on the 8th of November, 1952 was served on any one on behalf of the Bank. The defendants resisted the application mainly on two grounds, namely that it was bared by time and that there was not sufficient cause for the restoration of the suit. The learned Senior Civil judge framed eight issues in the case. He discussed issues Nos. 1, 2' and 6 together in one group and issues Nos. 3, 4 and 5 in another group and issues Nos. 7 and 8 separately. No evidence was produced before him by either party barring the affidavit of Mr. Jariwala referred to above. The learned‑ Senior Civil judge by a well considered order dated the 31st of August, 1953, restored the suit. The defendants have come in revision to this Court. The main points for determination are as follows:‑ (1) Whether a suit can be dismissed in default under Order 9, rule 8 C. P. C. on date which is not fixed for the hearing of the suit? (2) If the Court dismisses it on such date and it is held that it had no jurisdiction to do so, whether the suit can be restored under section 151 or Order 47, rule 1, C. P. C. ? (3) The two suits having been consolidated into one suit, could the suit instituted by the plaintiff have been dismissed under Order 9, rule 8, C. P. C. when the counsel for one of the parties (i.e. Messrs Ghulam Farid Muhammad Latif) was present in Court on 8th, November, 1952? (4) The revisional jurisdiction being discretionary, would the High Court interfere in revision, where substantial justice has been done by the lower Court. Point No. 1.‑It was contended on behalf of the defendant petitioners that the application for restoration was barred by limitation as it was filed after the expiry of thirty days from the date of the order of dismissal. It was urged in reply that Order 9, rule 8, C. P. C. was not applicable to the facts of the case as the date (the 8th of November, 1952) on which the suit was dismissed for default was not fixed for the hearing of the suit and the order of dismissal was passed without jurisdiction and was, therefore, a nullity in the eye of law, As noticed above Ch. Muhammad Siddiq, Civil Judge, had already fixed 8th and 14th of January, 1953 for the evidence of the parties. The plaintiff's evidence was over with the exception of two witnesses who were to be produced on the 8th of January, 1953. Under these circumstances all that the Civil Judge could do on the 8th of January 1953, was to let the case come up on the dates already fixed in January 1953, or to fix fresh dates for the production of evidence. No other proceeding could have possibly been taken on that date. It has to be kept in mind that the Court issued notices as late as the 3rd of November 1952, while the parties were required to attend on the 8th of November 1952. There was an interval of four days only between these two dates and, therefore, it could not have been contemplated that the parties should summon their witnesses and be ready with their evidence on the 8th of November 1952, nor was any direction to that effect given in the notices issued to the parties. Malik Muhammad Akram, counsel for the defendants was served on the 5th of November 1952, while Malik Muhammad Hussain, counsel for the Bank was served on the 6th or 7th of November 1952. In fact it is admitted by the defendants in para No. 5 of the written reply dated the 18th of May 1953, `that the 8th of November 1952, was fixed for the appearance of the counsel for the parties. , A date, which is merely fixed for changing a date previously fixed for the, production‑ of the evidence, can by no stretch of language be called a date for the "hearing of the suit". And if the date is not fixed for‑the hearing of the suit then neither Order 9, rule 8 nor Order 17, rule 2, C. P. C. would give any power to the Court to dismiss the suit for default on that date. The words of Order 9, rule 8 C. P. C. are as follows:‑ "Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed unless the defendant admits the claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such admis sion, and, where part only has been admitted, shall dismiss the suit so far as it relates to the remainder". Order 17 rule 2 C. P. C. reads as under:‑ "Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit." It is abundantly clear from the facts noticed above that the present suit has reached a stage when it would be governed by. Order 17, rule 2, C. P. C. as issues has already been framed and the plaintiff had almost finished his evidence The relevant words of the two provisions of law quoted above are "when the suit is called on for hearing" and "on any date on which the hearing of the suit is adjourned". The most important question for decision, therefore, is what is meant by the expression "hearing of the suit". "Hearing" according to Wharton's Law Lexicon 'means "investigation of a controversy". According to the Chambers Twentieth Century Dictionary the word "hear" means "to try judicially" and "hearing" means "judicial investigation and hearing of arguments, especially of trial without a jury". According to the Oxford Dictionary the word "hearing" means "to listen judicially in a Court of Law". According to the Century Dictionary compiled by W. D. Whitney, 1889 edition, Volume IV page 2755 "hearing" judicial investigation of a suit at law". According to Latham's Dictionary of English Language 1882 edition, Volume I, part 2, page 1140 "hear" means "to try, attend judicially" and "hearing" means "judicial trial". "The Judges from time to time have explained the word "hearing" and a reference to the following few authorities would make its meaning clear: It was held by Lahore High Court in Manohar Dass v. Birandari Sheikhupurian (A I R 1936 Lah. 280) at page 218 column 2 that :‑ "Order 17, Rules 2 and 3 apply only to cases where the actual hearing of the suit has been adjourned and by the hearing of the suit is meant the hearing at which the Judge would be either taking evidence or hearing arguments or would have to consider questions relating to the determina tion of the suit which would enable him finally to come to an adjudication upon it. But in cases where it was clearly never intended that there should be a hearing of the suit in the ordinary sense of the word, but merely some interlocutory matter decided between the parties as to the' future conduct of the suit, the provisions of these rules have no application". It was remarked by the learned judge in the course of judgment that the date on which the suit was dismissed was not the "date of hearing of the suit" and the order of dismissal was without jurisdiction". In Mst. Barkat Bibi v. Fateh Ali (P L D 1949 Lah. 432) Cornelious J. after reproducing the meaning of the word "hearing" as given in Wharton's Law Lexicon and relying on Manohar Dass v. Birandari Sheikhupurian (A I R 1936 Lah. 280) and Balmakund Marwari v. Lachhmi Narain Marwari (57 I C 748) arrived at the same conclusion. The head note is as follows:‑ "Where no investigation of any matter germane to the suit fall to be performed by the trial Court and the only order which it could possibly have made was an order of an administrative nature, held that the order dismissing the suit was without jurisdiction since there was no hearing of the suit on the date on which default of appearance was made." In that case dates had `been fixed for 'receiving records of the case from the High Court and eventually the records ‑were received on the 29th of May 1946, but on that date the plaintiff was absent and the suit was dismissed in default. The learned judge in the course of the judgment remarked that "the only use to which the appearance of the parties on 29th of May 1946, could have been put by the Court, was that of intimating the High Court s orders to the parties and 'if necessary allowing them for taking the necessary steps in compliance therewith". The learned judge held that the 29th of May 1946, was not fixed for the hearing of the suit and the Court had .no jurisdiction to dismiss the suit for default on that date. In the present case nothing could have possibly been done on the 8th of. November 1952, the date on which the suit was dismissed for default, except that either the dates which had been previously fixed for evidence might have been confirmed or some other dates might have been fixed. The 8th of November 1952, as admitted by the defendants in the reply referred to above was fixed only for the appearance of the counsel for the parties. It was observed by Zafar Ali J. in Mahesha Mal Dayal Das v. Muhammad Jamil (A I R 1929 Lah. 374 at p. 375 Cal. 1.), that "it is clear that the order dismissing the suit was ultra vires as the date on which it was dismissed was not the date fixed for hearing it.' It was held by Johnstone J. in Nathu Singh v. Chhuttan and others (A I R 1929 Lah. 830) that where on the day fixed for hearing a preliminary issue based on an objection by the defendant, the parties were absent, the suit could not be dismissed for default as the date was not fixed for the hearing of the suit but the objection on which the issue was based could be rejected. The rule in Nathu Singh v. Chhuttan and others (supra) was referred to with approval by Mr. Justice Abdur Rashid in Grimault & Co. v. Charan Das & Sons (A I R 1934 Lah.237) the facts of which were that an application was made for the amendment of issues and the Court fixed a day for the consideration of the said application, but the parties did not appear on the date fixed. It was held that the Court had no right to dismiss the suit. It could only dismiss the application for amendment. If a date fixed for hearing of arguments regarding a preliminary issue or for deciding an application for amendment of issues cannot be regarded as the date fixed for "hearing of the suit" a fortiori, it cannot be held that a date fixed for simply changing a date already fixed for the production of evidence amounts to a 'date for "hearing of the suit". In Balmokand Marwari v. Lachhmi Narain Marwari (57 I. C. 748) referred to above, a Division Bench of the Patna High Court observed at page 750 that rules 2 and 3 of Order 17 C. P. C. apply only to cases where the actual hearing of the suit had been adjourned and‑by the `hearing of the suit' they meant the hearing at which the Judge would be either taking evidence or hearing arguments or would have to consider questions relating to the determination of the suit which would enable him finally to come to an adjudication upon it. , To the same effect is the rule 'in Sheikh Muhammad v. Mg. Rukmina Kunwar (AIR 1946 All. 506) a case decided by a Division Bench of Allahabad High Court. The facts in that case were that the 3rd of June 1944, was fixed for ascertaining the result of another connected case, but the plaintiff was absent on that date and the suit was dismissed for default under Order 9, rule 8, C. P. C. The plaintiff filed an application under, section 151, C. P. C. on 12th July 1944, for setting aside the order of dismissal but it was rejected by the Civil judge on the ground that the proper remedy of the plaintiff was to file an application under Order 9, rule 9 C. P. C. and that as the plaintiffs had not availed themselves of that remedy, the application under section 151, C. P. C. could not be entertained. In the course of their judgment the learned judges observed at page 507 of the report as follows :‑ "The present application in revision is directed against the order dismissing the application under section 151, C. P. C. In our judgment the view taken by the learned civil judge cannot be sustained. It is manifest from the facts stated above that after the remand by this Court the Civil judge had stayed the suit till the decision of the E. E. Act case. The 3rd June 1944, was the date fixed not for, the hearing of the suit but only to ascertain the result of the E. E. Act case, and for the purpose of passing consequent orders. Order 9, rule 8 has application only as to those cases where on the date fixed for the hearing of a suit the plaintiff fails to prosecute the suit. In the present case 3rd June was not fixed for the hearing of the suit and, therefore, Order 9, rule 8 C. P. C. has no application to the case. That being so, the plaintiffs could not file an application under Order 9, rule 9 for setting aside the order dismissing the suit passed by the Civil judge on 3rd June 1944. "The question then arises as to whether any other remedy and, if so, what remedy, was open to the plaintiffs? The fact that the order dated 3rd of June 1944, dismissing the suit was wholly indefensible cannot be disputed. In the first place as that date was not the date for hearing of the suit the Court below had no jurisdiction to dismiss the suit on that date." In a recent case relating to Bharat reported as Ramswaroop Raghusvardayal and others., v. Mataprasad Prabhudayal (AIR 1952 M.B. 8) it was held that "hearing" in the rule (rule 2 of .Order 17 C. P. C.) occurs only when the judge is taking evidence or hearing arguments or otherwise coming to the final adjudication of the suit and not when the Court considered merely interlocutory matters and that an order of dismissal passed on a date not fixed for the hearing of the suit would be without jurisdiction. (page 9 Co. 2). In this authority Balmokand Marwari v. Lachmi Narain Marwar (57 I C 748 =A I R 1920 Pat. 595.) and A I R 1936 Lah. 280 referred to above were relied `upon. The deci sion in A I R 1920 Pat. 595 was left untouched by their Lordships of the Privy Council in Lachhmi Narain v. Balmokand (I L R 1925 Pat. 61.). In 1953 edition of Mulla's well known Commentary on the Civil Procedure Code it is noted under rule 8 Order 9 C. P. C. that "this rule would not apply where the suit is dismissed for plaintiff's non‑appearance on a date fixed not for hearing of a suit but for some interlocutory matter." A reference to the authorities cited above would show that it has been consistently held up to the present time that the Court has no jurisdiction to dismiss a suit on a date which is not fixed for the "hearing of the suit", but is fixed only for the purpose of determining some interlocutory matter for the future conduct of the suit. It was urged on behalf of the defendants that what other order the Court would pass in the absence of the plaintiff in the present suit on 8th November 1952? The Court could fix date for the production of the evidence of the parties as had already been done by its predecessor and if on that date, which would have been a date for the hearing of the suit, either of the parties was absent the Court could proceed under Order 9 or pass any Order which it deemed fit. The period of 30 days is provided by Article 163 for an application for setting aside a dismissal for default. It is clear that Article 163 is applicable only to those cases where it is necessary for the plaintiff to have a dismissal for default set aside. Where the order regarding a dismissal for default was made without jurisdiction and is only a nullity, it is not necessary that it should be set aside within 30 days prescribed by this Article, as it is not essential to have a nullity set aside. The expression "set aside" also occurs in Article 91 of the Limitation Act which provides a period of three years to cancel or set aside an instrument not otherwise provi ded for. It was observed in a Division Bench ruling of the Calcutta High Court (Sir Asutosh Mookerjee and Beachcroft JJ.) reported as Sidhu Sahu and others v. Gopi Charan Das (18 I C 969 at p. 971 Col. 1.) that "it may now‑ be taken to be well settled by a series of decisions of the Judicial Committee that it is not necessary for a party to a deed to have it formally set aside, if, from its inception it is void and of no effect". (The learned judges added that "it was sufficient in support of this proposition to refer to Gnanasambanda Pandara Sannadhi v. Velu Pandaram (27 I A 69=23 Mad. 271 P C.) and Maharani Beni Pershad Keori v. Dudh Nath Roy and others (26 I A 216= 27 Cal. 156 (P C) at p. 165.). Their Lordships of the Privy Council held in another case reported as Petherpermal Chetty v: Mundiandy Servai (35 Cal. 551. at p. 560.) that an inoperative instrument' does not bar the plaintiff's right to recover possession of his land and that it is unnecessary for him to have it set aside as a preliminary to his obtaining the relief he claims. The ruling 35 Calcutta 551 P. C. was followed by a Division Bench of the Lahore 'High Court (Tek Chand J, and Abdul Rashid J.) in Basant Kaur v. Ram Singh (A I R 1939 Lah. 544 vide p. 546 Col. 1) of the report. To the same effect is Shanker Bhai Daji Bhai v. Baishiv (1930 Bom. 545 at p. 553 Col. 1.) and it was held that in such cases suit was governed by Article 144 and not by Article 91 of the Limita tion Act. In a recent ruling of the Lahore High Court Pak Law Reports Lahore 205, diwana v. Mst. Sahbi (P L D 1954 Lah. 253.), it was observed at page 215 that "Article 91 of the Limitation Act does not apply to suits relating to instruments which are bad ab inito and such instruments may be treated as non‑existent by a party without running any risk." As stated above the plaintiff's suit was not fixed for hearing on 8th November, 1952, either within the meaning of Order 9, rule 8 or Order 17 rule 2, C. P. C. and that the order of dismissal was, therefore, without jurisdiction and a nullity and it was not necessary to have it set' aside In this connection we may also refer to Muhammad Kanni Rowther v. Nana Muhammad Rowther (54 Mad. p. 770 at p. 773, (bottom)), where it was observed that "the order of the Lower Court dismissing the suit on 20th November, 1928, must be deemed to be one passed without jurisdiction and there is no need to set it aside. If it is an order of dismissal for default under Order 9 of the Code which is not a nullity it has got to be set aside within 30 days." It was held that the case was governed by Article 181 of the Limitation Act. It was observed by the learned judge in Mst. Zainab Bibi v. Behari Lal. (160 I C p. 457 at p. 459 Col. 1.) "that the words used in Order 9 rule 3 are the same as those in Order 9 rule 8 C. P. C. that is to say, when the case is called ,for hearing." I am, therefore of the opinion that the case before me is covered by section 151 C. P. C. and not Order 9 rules 8 and

9. It follows that Art. 181, Limitation Act, applied and not Article 163 and the application is within time. I agree with the learned counsel for the respondent that the two Courts below acted under the impres sion that they were bound by Article 163 and that, therefore, they could not do anything in the matter. Again in Skeikh Muhammad v. Mst. Rukmina Kunwar (A I R 1946 All. 506 at p. 507:), referred to above, it was held that as the date on which the suit was dismissed was not fixed for the nearing of the case, the lower Court had no jurisdiction to dismiss the suit on that date. It may be noted that the suit in that case was dismissed on 3rd June, 1944, and the application for restora tion was made on 12th July, 1944, that is, after the expiry of 30 days from the date of the dismissal. See also Chitley's Limitation Act, 1939 edition, Volume III, page 2319, where the question under consideration is discussed under the head ing "To set aside a dismissal". It was held in Kalu Ram v. Ghazita Ram (A I R 1928 Lah. 534 (2)) that a Court has inherent jurisdiction to restore a case which has been dismissed for default through its own mistake. In that case the suit was dismissed on 29th April, 1927, and the application for restoration was filed on 9th August, 1927, and the case was restored. See also Sri Adwaitanand Tirtho Swami v. Basudeo Nand (6 I C 208) a Davison Bench authority of Calcutta High Court which is to the same effect. In view of the authorities cited above the application for restoration of the suit was not barred by limitation. We may now refer to the question relating to the review of the order of dismissal. It has been laid down in a number of rulings that when a suit is dismissed under Order 9, rule 8 C. P. C. two remedies are open to the plaintiff. He may make an application under Order 9, rule 9 C. P. C. or he may make an application for review of the order of dismissal under Order .47, rule 1 C. P. C. In Fateh Chand v. Monghi Bai (109 P R 1913.) a Division Bench held that where a suit has been dismissed for default it is competent to the Court in which the suit was so dismissed, to entertain and grant an application for review of judgment though no application had been made to set aside the order of dismissal, under section 103 C. P. C.1882. In A. T. K. P: L. M. Muthu Pillay v. Lakshmi‑narayan (A I R 1928 Rang. 177.) it was held "that on the facts of this particular case an application for review would lie as the parties had never been directed to attend on 25th February and, in the absence of any such direction, the Court had no power to dismiss the suit, and in the absence of any such direction it could not be expected that the plaintiff would immediately come to know of the dismissal of the suit. It would obviously, therefore, be unjust to restrict him to an application made within the time allowed under Order 9 rule 9, the period of limitation for which commences at .the time when the order is passed." In this connection we may refer to a Division Bench ruling of Calcutta High Court reported as Rai Narain Purkait v. Ananga Mohan Bhandari (26 Cal. p. 598), which has been followed in many subsequent rulings. It arose out of a partition suit which was dismissed for default under section 102 of Civil Proce dure Code 1882. It was held that the Court had jurisdiction to entertain the application for review of judgment, though no previous application had been made to have the order of dismissal set aside under section 103 of the Code. It was laid down in Virupakshi Gowd. v. Bandappa (A I R 1919 Mad. 844.) that when there is nothing in the Code to limit a party to one particular mode of procedure, the, fact that he can get a longer period of limitation by adoption of a particular course is no ground for refusing the relief. In Khasomal and another v. Bacho and another (1929 Sind 38 at p. 39.) it was held that there is nothing in Order XLVII C. P. C. to suggest that the application for review must necessarily be made within the same period which is allowed to a party for the alternative remedy for restoration of a suit. In Chet Narain Sahi v. Rampal Manjhi (151 C p. 554.) a Division Bench following 26 Calcutta 598 held that an application for setting aside an ex parte decree made after the expiry of 30 days from the date of the decree was maintainable under Order XLVII, rule 2, C. P. C. The facts were that the defendant's pleader had been prevented from appearing on the day 11 of hearing. An application under Order XLVII, rule 1 was granted by the trial Court without giving any reason. J. C. on appeal set it aside. High Court res tored the order of the trial Court. Under Order XLVII, rule 1, an application for review can be made inter alia, on the ground that there is some error or mistake apparent on the face of the record or for some other sufficient reason. It is clear from the record of the case that date 8thi November, 1952, was not fixed for hearing of the suit but merely for changing the date of the suit for production of evidence and the order of dismissal of the suit on that date was without jurisdiction and, therefore, a nullity. There was thus a mistake or Error apparent on the face of the record and this should also be regarded as a sufficient reason for reviewing the order of dismissal within the meaning oaf Order XLVII, rule

1. If there is a ground for review as contemplated by Order XLVII rule 1, there is no reason why a plaintiff whose suit has been dismissed for default should be deprived of the longer period of limitation, that is, 90 days from the date of the order under Article 173 of the Limitation Act as laid, down in the authorities referred to above. , For this reason also the application for restoration is maintainable and is, within time as it was filed within ninety days from the 8th November, 1953. The learned counsel for the petitioners has laid great stress on a ruling of their Lordships of the Privy Council Chhajju Ram v. Neki (I L R 3 Lah. 127,), where it is laid down that Order XLVII rule 1 of the Code of Civil Procedure must be read as in itself definitive of the limits within which review of a decree or order is now permitted and the words "any other sufficient reason" mean a reason sufficient on ground at least analogous to those specified immediately previously. It does not deal with any question relating to the dismissal of a suit for default. It merely lays down that an application for review can be granted only on the grounds mentioned in rule 1 of Order XLVII C. P. C. In the present case there is an apparent error or mistake on the face of the record as the suit was dismissed on a dates which was not fixed for hear ing of the suit but only for fixing another date for pro duction of evidence. It is within the purview of Order XLVII, rule 1 C. P. C. Mahadeo Govind Wadkar v. Lakshmi Narayan Ramnath Marwadi (A I R 1925 Bom. 521.) was also referred to by the learned counsel for the petitioners. But that ruling does not support his contention that under no circumstances an application for restoration of a suit can be made under Order XLVII rule 1 C. P. C. The learned judges have observed that since the decision of the Privy Council in Chhajoo Ram v. Neki (I L R 3 Lah. 127) referred to above" we must take it that a plaintiff whose suit has been dismissed for want of appearance under Order IX rule 9 has no remedy by way of review because the ground on which a review can be granted are specified in Order XLVII rule 1." In the earlier part of the judgment it was remarked that a plaintiff can have his suit restored if he can satisfy the Court that there was sufficient cause for his non‑appear ance when the suit was called for hearing. The learned judges have pointed out that sufficient cause for non‑appear ance may be a good ground for restoration under Order IX, rule 9 but that would be no ground for a review in accord ance with the grounds for a review specified in Order XLVII rule

1. But they have nowhere laid down that where grounds for a review exist in a case an application for restoration based on those grounds cannot be entertained. It was on the other band remarked at page 521 Column 2 that "if as a matter of fact the opponent was entitled to apply for a review we might not have been inclined to interfere with the decision of the Judge." If the contention of the learned counsel were to be accepted, very inconvenient results may follow. For example, where in a case the date fixed for hearing of the suit was not communicated to the plaintiff and the suit was dismissed for default, he would have no remedy if he did not come to know about dismissal of the suit before the expiry of 30 days from the date of dismissal. It was laid down in Raja Bhai Rabendra Narain Dev v. Kumar Punvendra Narain Deb (1950 Assam 47.) that it cannot be held "as a general rule that an order purporting to have been passed under Order IX rule 8 C. P. C. is not at all subject to review." In this case Mahadev v. Lakhshmi etc. (1925 Bom. 521.) was referred to and explained Kala Mia v. Abdul Quddus Mia (P L D 1952 Dacca 43) relied upon by learned counsel for the petitioner is no authority on the point under consideration. It was held that an appeal under Order XLI rule 1 (j) lies against an order of dismissal of an application under order XXI rule 90, hence it cannot be interfered' with under section 151 C. P. C. Nor has Hayat Ahmad Khan v. Bashir Sadiq (P L D 1952 Lah. 48.) any application to the case, where it was held that inherent power of the Court under section 151 C: P. C. cannot be invoked while dealing with disobedience of a temporary injunction for which Order XXXIX C. P. C. provides a complete remedy. Nor has Mst. Karam Rhari v. Jagan Nath (A I R 1936 Lah. 495.) any application to the facts of this case, because there the dismissal of the suit was on a date on which the case was to be taken up after the ex parte decree had been set aside. That date was evidently for the conduct of judicial business and not for any interlocutory or preliminary matter. Similarly A I R 1938. Nag. 558, 38 Indian Cases 53, A I R 1942 Lah. 153, A I R 1926 Lah. 379, A I R 1934 Nag. '43, 93 Indian Cases 1023, A I R 1932 Lah. 539 cited by the learned counsel for the petitioner have no application to the facts of the present case. There is another aspect of the case which forms subject matter of issues Nos. 3 and 4 pertaining to the legal consequ ences which ensue from the consolidation of the two suits brought by the parties against each other. The two suits which were filed by the parties against each other relate to the same transaction and were consolidated with the con sent of the parties and by the order of the Court, dated 15th December, 1951. It was stated in that 9rder that as the issues would be mostly common in both the suits, the two suits be consolidated and that the proceedings in both the suits would hence‑forth be recorded in the suit brought by the plaintiff Bank against the defendants. This order was signed by the counsel for the parties as a token of their consent. After the passing of this order, all proceedings were recorded in the suit in which the Bank was the plaintiff. On the 1st March, 1952, issues were framed in that suit for decision of both the suits. The evidence of the witnesses produced by the plaintiff Bank was also recorded in that suit. The question which arises is what are the legal consequences which follow from the consolidation of the two suits! It is contended on behalf of the plaintiff Bank that when two suits are consolidated there is one trial, one judgment and one decree. Therefore, the plaintiffs in both the suits are to be regarded as plaintiffs in the consolidated suit, for if either of the plaintiffs is to be granted a decree, that decree will be passed in the consolidated suit. For this proposition reliance was placed on the Full Bench rulings of Lah and Qudh reported as. Mst. Lachhmi v. Mr. Bhulli. (I L R 8 Lah. 384.) and Shanker Sahai v. Bhagwat Sahai. (1946 Oudh. 33 (F B)) and on Ganga Parshad v. Mst. Banas Pati (A I R 1937 Nag. 132. at p. 133 Col. 1.) and also on Tillu Mal Teku Mal v. Mychumal Khatumal (1939 Sind.128.), wherein the following observations were made ‑ on pages 407 and 408 of the report in I L R 8 Lah. 384:‑ "When parties desire to have two suits tried together, the strictly proper procedure would have been to pass a formal order of consolidation, and if that had been done only one decree would have been prepared and one' appeal would have been sufficient. Where this formality has not however been gone through, but a virtual consolidation of the suits has been brought about, the position of the parties should not in any way be made worse. As pointed out in Damodar Das v. Sheo Ram Dass (I L R 29 All. 730.), which has been approved in Ghanshyam Singh v. Bhola Singh (I L R 45 All. 506) there is in such a case in' reality but one, decree, though written in duplicate on two different pieces of paper, one of which is attached to the record of each suit." Reliance was also placed on A I R 1946 Oudh 33 F. B. 1937 Nagpur 132 at page 133 Column (1) and 1939 Sind

188. In Oudh case which is a Full Bench authority I L R 8 Lah. 380 was relied upon and also quoted with approval. In the present case there is a formal order of consolidation and, therefore, only one decree could have been passed in the consolidated suit. It is urged that both the Central Bank and the firm Ghulam Farid Muhammad Latif should be considered as plaintiffs in the consolidated suit, because if either of the plaintiffs was to be granted a decree, that decree would have been passed in the consolidated suit. Therefore, the suit could not be dismissed under Order 9 rule 8 as that rule applies only if there are mort than one plaintiff and all of them do not appear. In other words the rule applies if no plaintiff is present. In the present case one of the plaintiffs, that is, Messrs Ghulam Farid‑Muhammad Latif, was repres ented by counsel on the 8th November, 1952 and, therefore, an order of dismissal for default under Order IX rule 8 could not be made by the Court. These arguments are not without force. There is yet another aspect from which the case can be viewed. It has been shown above that the application rot the restoration of the suit is not bared by time, but for the sake of argument if it is not within time and the suit was wrongly restored by the lower Court, the question arises whether the High Court is bound to interfere when it is dealing with the case on the revision side. It has been invariably held that the exercise of its revisional jurisdiction by the High Court is discretionary and it should not be exercised when substantial' justice has been done between the parties. As stated in the beginning the defendants have in a way admitted the plaintiff' 1s claim that a sum of Rs. 8,31,067‑12‑3 was due to the plaintiff on the 15th of August 1947 because after deducting that sum from the sum of Rs: 12,19,980 which is alleged to be the value of the good pledged by them, the defendants sued the plaintiff for the recovery of the balance Rs. 3,88,912‑3‑9 or for such sum which may be found due to them after taking the account. The plaintiff's claim cannot be called an unjust claim. Moreover issues were framed in this case on the 1st of March 1952 and the plaintiff Bank had produced almost the whole of its evidence excepting .two witnesses, before the 8th of November 1952 when the suit' was dismissed for default. It is obvious that the suit had reached a stage when it would be governed by Order XVII, rule 2 C. P. C. according to which the Court was not bound to dismiss the suit for default under Order IX but also could pass such "other order as it thought fit". Moreover, no proceedings could be held on the 8th of November 1952 excepting the changing of the dates for production of evidence. There is another circumstance which cannot be lost sight of. The two suits which the parties brought against each other had been, consolidated into one suit on the 15th December 1951 and notice issued in the case in which Messrs Ghulam Farid‑Muhammad Latif were plaintiffs had not been served and that suit was adjourned to the 15th of December 1952.' In the peculiar circumstances of this case the plaintiff's suit also may well have been adjourned, especi ally when neither the plaintiff Bank nor its standing counsel Mr. Anwari had been served and a notice was served on Malik Muhammad Hussain as late as the 7th of November, and he intimated to the Court that most probably he would not be in Lahore, on the 8th of November: Now that the suit had been restored, it is eminently a fit case in which the High Court should refrain from exercising its revisional jurisdiction. It was held by a Division Bench of the Lahore High Court (Harries C. J. and Mahajan, J.) in Hari Singh v. Khan Moin‑ud‑Din Khan (A I R 1944 Lah. 397.) that‑ "The exercise of the powers in revision is discretionary and it has been a long established practice in the Lahore High Court (as well as in other High Courts in India) that where substantial justice has been done between the parties powers of revision should neither be invoked nor exercised. Where the order of trial Court setting aside the ex parte decree and permitting the parties to fight out the case on its merits on payment of costs was eminently a just order the power of revision cannot be exercised to reverse that order. In the case reported as Ghasita v Sultan (93 P R 1911.) the plain tiff's suit was barred by time but the lower Court wrongly held that it was within time. The defendant went up in revision but the Court refused to interfere on the ground that substantial justice had been done between the parties. In the course of the judgment the following observations by Chat terji J. were quoted at pages 331 and 332 of the report :‑ "In an appeal it is the right of the appellant to obtain an adjudication, wand one in his favour if his grounds are made out irrespective of the question whether substantial justice is or is not thereby dispensed in the case. A point of law or procedure may in a particular case work great hardship, but in an appeal the Court is bound to give effect to it without regard to the consequences. In cases of revision it is quite otherwise. No party has the right to obtain an adjudication, and it is entirely within the discretion of the Court to interfere or not, as it thinks fit. It will not inter fere to perpetuate an injustice, but only to promote the ends of justice. Suppose a just claim is really barred by time but is erroneously held not to be so by the lower Court, or a forfeiture clause under a contract, which would work great hardship in a particular instance, is erroneously held not to apply‑in such a case a Court of Appeal would be obliged to enforce the law, but a Court of Revision would ordinarily refuse to act." It may be noted that the case reported as 93 P R 1911 was decided under section 25 of the Small Cause Courts Act. It is well settled that powers to interfere in revision are much wider under section 25 of that Act than the powers conferred on the Courts by section 115,of the Civil Procedure Code; but even so it was not thought fix to, interfere on revision. This decision amongst others was followed in Charan Das v Ram Ratan (A I R 1935 Lah. 137.). In a Lahore case reported as Prabh Dayal v. Shambhu Nath (54 I C 436.) and in Mathura Prasad and others v B. B. & C.

1. Railway (A I R 1924 All. 691) it was held (that gross errors of law are not revisable under section 115 C P C though they are revisable under section 25 of Small Cause Courts Act. A Full Bench of the Allahabad High Court has laid down in Ramzan Ali v Mst Satul Bibi (A I R 1948 All. 244.) that the exercise of its revisional powers by the High Court is entirely discretionary and it is only in the interests of justice that High Courts would interfere in revision. It was laid down in Ramswaroop Raghu wardayal v. Mataprasad Prabhudayal (A I R 1952 M. B. page 8) at page 9 Column 2, that it is not necessary to exercise the powers under section 115 C. P. C. In all cases. Revisional powers are intended to be exercised with a view to sub-serve and not to defeat the ends of justice. Where substantial justice has been done by the order of the lower Court, the High Court will not inter fere in revision notwithstanding the fact that the reasons for the order are not, correct. Section 115 begins with the words "The High Court may call for the record" and ends with the words "the High Court may make such order in the case as it thinks fit". The use of the word "may" makes it clear that the jurisdiction conferred by section 115 is discretionary. It was observed by a Full Bench of the Punjab Chief Court in Hansa v. Ran Singh (36 P. R. 1902.) at page 138 that‑ "As regards the second question I am of opinion that the. wording of section 70 (a) of the Punjab Courts Acts and of section 612,‑ C. P. C., appear to give this Court a wide discretion, and that we are not necessarily bound to interfere even when there is a defect of jurisdiction. The power given by these sections are plenary, and are to be used at the discretion of the Court for remedying errors committed by the Subordinate Courts with the object of furthering the ends of justice. I do not think we are bound to interfere even in a case in which defect of jurisdiction is established, unless we are satisfied that our declining to interfere would lead to an injustice or a failure of justice." There is a consensus of opinion of the various High Courts on this point as a reference to the following pronouncements would show: ‑ (a) Lahore High Court: A Division Bench authority, Hari Singh v. Khan Moin‑ud-Din Khan (A I R 1944 Lah. 397) has been referred to above. In Hari Singh v. Narian Das. (A I R 1945 Lah. 175) Sir Abdur Rahman J. brought out the distinction between the appellate and revi sional power of the High Court under sections 100 and 115 C. P. C., and held that although a Court could not take into consideration equitable grounds while deciding an appeal, it was discretionary with it to interfere or not on the revi sion side. (b) Punjab Chief Court :‑ Ghasita v. Sultan (93 P. R. 1911) has been referred to above. The other authorities are : Hansa v. Ran Singh (36 P. R. 1902 (F. B.)), Faqir Chand v. Mst. Balkaur (19 P. R. 1901.) and Hakim v. Ralya (125 P. R. 1907) (c) Allahabad High Court :‑ . Ramzan Ali v. Satul Bibi (A I R 1948 All. 244. (F. B.).) referred to above. Kapoor Chand v. Jawahar Lal (A I R 1933 All. 154 (D. B)) is another. (d) Calcutta High Court: Sudhangshu Kumar Roy v. Bana Mali Roy (A I R 1946 Cal. 63.) and Achiran Bibi v. Babur Ali Sapui. (A I R 1945 Cal. 156 at p. 157.). (e) Madras High Court: Ramnath Kappali etc. v. Eacharambath etc. (A I R 1937 Mad. 644.). (f) Rangoon High Court: L. P. R. Chettyar Firm v. R. K. Bannerji (O. R.) (I L R 9 Rang. 71.) A perusal of these rulings would show that in several cases the lower Courts had passed orders without jurisdiction and in some cases they had erroneously decided questions J relating to limitation, but the High Court refused to interfere in revision on the ground that substantial justice had been done between the parties. This itself is a substantial ground for not interfering on revision: The argument of the learned counsel for the petitioner that this Court is bound to interfere on the revision side in every case if it is of opinion that the order of the lower Court is wrong, is without any force'. To sum up the discussion, the order of dismissal of the suit under Order 9, rule 8 was wrong as‑ (1) it was made on a day which was not fixed for the "hearing" of the case, but only for fixing a date for summon ing evidence ; (2) the plaintiff and his standing counsel were not served, while the counsel who was briefed for such hearings only on which substantial judicial work was to be conducted was served at a short notice and he on account of other pre occupations could not be present in Lahore on the date fixed (8th November 1952). In spite of his best efforts the standing counsel, who was to appear in Court to get a date for evidence, could not be contacted. (3) the case was at an advanced stage and Order 9 rule 3 had no application ; and (4) the proceedings had been consolidated, and when the counsel for the plaintiff in the cross‑suit was present, the proceedings had to continue and the present suit ,could not be dismissed. Such order could be reviewed or could be rectified under the inherent powers of the Court. The trial Court having set aside the order of dismissal, and the case being at an advanced stage for decision on merits, this Court in its discretion in the exercise of the revisional jurisdiction will refuse to inter fere. The revision petition is therefore dismissed with costs. A. H Petition dismissed