P L D 1968 Karachi 59 (PLP)

"Explanation.‑This section does not apply to applications for the execution of decree which are proceedings in suits:' In Thakur Prashad v. Fakirullah, a case which arose before the explanation was added to the section their Lordships of the Privy Council observed as follows: Their Lordships think that the proceedings spoken of in section 647 include original matters in the nature of suits such as proceedings in probate, guardianships and so forth and do not include executions . . . . Their Lordships' attention has been called to the recent Act VI of 1892 which would appear to have been passed in order to avoid the disturbance of practice caused by the Allahabad rulings . . . . . their Lordships have thought it right to state their opinion that the Act of 1892 does nothing more than express the true meaning of the Civil. Procedure Code." The explanation and. the words "other. than suits and appeals" were thus rendered superfluous and unnecessary and have accordingly been omitted from the present section. As a result it would therefore seem to be clear that section 141 does not apply to any proceedings in execution but only to proceedings which are original matters in the nature of suits." D. F. Mulla has explained the words "proceedings in any Court of civil Jurisdiction` of the section in the 12th Edn. of his commentary on C. P. C. at p. 448 as follows: "The proceedings spoken of in this section refer to original matters in the nature of suits, such as proceedings in probate, guardianships and so forth, and do not include execution, and other proceedings which do not originate in themselves but spring out from a suit or from some other proceedings or which arise in connection therewith." Some Judges have applied section 141 to applications mad for the restoration of applications treating them as independent proceedings and therefore as miscellaneous proceedings to the nature of suits. (See A I R 1926 Mad. 325 at p. 326). But this, I respectfully venture to think, 4s clearly a far‑fetched argument. The inapplicability of section 141 to interim applications is the first ground on which Order IX, of C. P. C. should not he used for the restoration of those applications which were dismissed for default.

6. Another ground specifically relevant to the restoration of those applications which were made for the restoration of suits is that it leads to absurd results. Chitaley and Rao thin (See Note 7 of their commentary‑referred to above) that the consequence of applying Order IX of C. P. C. to such applications will be that Article 181 of the Limitation Act will apply to them, with the absurd result that the period of 30 days provided by Article 163 for the restoration of suits will become enlarged by a circuitous argument to 30 years. This result, as pointed out by Chitaley and Rao, could not have been con templated by the Legislature. This is the second ground on which Order IX, of C. P. C. should not be used to restore those applications which were made to restore suits.

7. Article 181 of the Limitation Act which is a residuary provision and applies to all those applications which are made under C. P. C. (See Hans Raj Gupta v. Official Liquidator (I L R 54 All. 1067 (P C) at p. 1076) and Armada Prasad Mitra v. Sushil Kumar Mandal (A I R 1942 Cal. 390 at p. 393) and for which no period of limitation is. specifically provided in the First Schedule to the Limitation Act or in section 48 of the Code of Civil Procedure. Section 48 of C. P. C. is of no help at all in these proceedings. As there is no provision in, the First Schedule to the Limitation Act which is specifically applicable to the restoration of those applications which were made for the restoration of suits. Article 181 would apply to them if they could be held to be maintainable under Order IX of C. P. C.

8. But those who hold the view that Order IX of` C. P. C is not applicable to applications made for the restoration of applications do not generally stop at that. Most of them take the view that such applications are entertainable under section 151 of C. P. C. in exercise of inherent powers of the Court. Their argument is that section 151 of C. P. C. is meant to provide relief where no specific remedy has been provided in order to serve the ends of justice. The argument is sound but not comprehensive because it is not justice that relief should be given irrespective of any consequence, legal or otherwise, that may follow. If inherent powers are invoked and the techni calities of Order IX of C. P. C. are considered to be inapplicable then two results ensue. Firstly, there remains no bar such as is contained in rule 9 of Order IX of C. P. C. to making any number of new applications like the first one. This leads to an interminable stream of applications. The answer to the incessant flow can be that inherent powers are to be used to serve the ends of justice and not to allow an interminable stream of applications. When this happens inherent powers should not be used. But this answer has its own weaknesses such as for instance, the line of demarcation would be purely imaginary and make the law entirely dependent on a vague and greatly variable sense of justice. Secondly, the sufficiency of the cause of default becomes the only relevant consideration See Ganese Prasad v. Bhagelu Ram (I L R 47 All, 878 at p. 880) to the restoration of applications thus making the law of limitation subservient to the sufficiency of the cause of default and pushing Article 163 of the Limitation Act away into the background. Strictly speaking, no Article of the Limitation Act not, even Article 181, applies to such applications because inherent powers are not conferred by but are only saved by section 151 of Civil Procedure Code (See A I R 1942 Cal. 390 at p. 393); and Article 181 is not applicable, as explained in the preceding paragraph, to those applications which are not entertained under C. P. C. This is the direct result of invoking inherent powers, but the same result follows in an indirect manner even if Article 181 is held to apply (See Gopal Luskar v. Harihar Mukherjee (A I R 1948 Cal. 37 (para. 3)) and Suryarao v. Chalamayya (A I R 1947 Mad. 339 (para. 8).) to applications made under section 151 of C. P. C. To understand this let us assume that a suit is dismissed for default and the plaintiff applies for its restoration within 30 days, but the application is dismissed for default. He applies for its restoration under Article 181 within 3 years but his second application is also dismissed for default. He can apply for its restoration within another 3 years and there can be no objection on the basis of the law of limitation to the restoration of the suit within six years and thirty days, instead of 30 days under Article 163 of the Limitation Act.

9. If Order IX of C. P. C. cannot be used on the, above mentioned two grounds (See paragraphs 5 and 7 above) for restoring an application, then the question arises as to why should inherent powers be at all used for that purpose? Justice Daniels of the Allahabad High Court bas given the answer in Ganesh Parshad's case as follows:

"But even if Order IX, rule 9, does not apply, I am not prepared to hold that, if a party prosecuting a restoration application is genuinely, prevented from appearing, he is left without resource. To hold this might be to work great injustice. A man might, for instance, accidentally break his leg on the way to Court. If the view contended for by" the applicant is correct, this accident would lead to his suit remaining irrevocably dismissed." , The argument, however, merely discloses the necessity of fining a remedy, and not necessarily of invoking inherent powers. In Pitamber Lal v. Dodi Singh to which case reference has been made by Daniels, J. the remedy suggested was that an application for the restoration of another application that was made for the restoration of a suit but dismissed for default, should be treated as a new application for the restoration of the suit itself. The learned Judges had observed at page 320 that‑-- "The practical objection raised to the view which we take, namely, that in this event a litigant may go on for ever and apply to restore in an uninterrupted stream of unsuccessful applications, is met by the fact, as Mr. Damodar Das points out, that such an application must be made within 30 days of the decree or of the date when the degree becomes known, and that if it is not so made, it is barred, by a statute. It, may be that if this point had been taken, this application would have been so barred. But that .is not the point on which it was referred to us." With regard to the above solution, Daniels, J. observed at page 879 that‑

"If Order IX does not apply then, as Pitamber Lal v. Dodi Singh and the judgment which it follows show, the Courts have great difficulty in devicing a suitable remedy. Section 151 provides an emergency power which it ought not to be necessary to resort to it in a class of cases which are of every day occurrence as these are." . But he reluctantly concurred with Suleman, J. who was positively of the view that Order IX was not applicable to such applications, that inherent powers may be invoked. He observed at page 879 that‑

"If there is no other remedy, we think that, that section (section 151 of C. P. C.) will apply in a case such as this." His own view was that Order IX of C. P. C. could be used for restoring applications and the "great difficulty" in the way of otherwise "devicing a suitable remedy" which he had in view appears to be that treating an application for the restoration of a previous application as an application for the restoration of the suit itself could not provide an, effective remedy because in most cases such applications were barred by Article 163 of the Limitation Act. It is helpful to note in this respect that a Division Bench of the Calcutta High Court held in Sarat Krishna Bose v. Biseweswar Mitra that‑-- "I entirely agree with the learned Judges of the Allahabad High Court to the view expressed in the case of Pitambar Lal v. Dodi Singh that if the fresh application is treated as an application to restore the suit itself and not to restore the first application, and is within time, there can be no bar to its being dealt with as an application under Order IX, Civil P. C. I am accordingly of opinion that the learned Subordinate Judge is right in the view he has taken and that the petitioner's application in so far as it purported to be one under Order 1X, rule 9, Civil P. C., was not competent. At the same time, however, I am of opinion that the duty of the learned Judge did not end in disposing of the application on that ground alone as he appears to have done. The Code has made no express provision for a case like this, and it is natural to suppose that there should be some way open to the petitioner to get rid of the order which was passed on the 12th September 1925, if he can show that his default was not due to his laches. The application which he presented on the 28th October 1925, cannot by reason of the bar of limitation be entertained as a second application for setting aside the ex parte decree. To meet cases such as this section 151 of the Code was enacted, and where there is no provision in the Code expressly providing for a remedy and none which prohibits a remedy being administered and such remedy is called for in order to do that real and substantial justice for the administration of which it exists, the provision of section 151 may and should be resorted to."

10. The above passage completely reveals the usual intent of judicial minds. While it shows the anxiety to find a, remedy and the correct device is considered to be that applications for the restoration of applications should be treated as applications for the restoration of the suits; yet the realization of the inadequacy of this remedy to help those plaintiffs whose applications become barred by time has led to the necessity of hunting for a further device by abandoning the use of Order IX of C. P. C. and taking resort to section 151, C. P. C. The inherent powers are thus invoked to get over the bar of the Law of Limitation. But inherent powers are not meant for this purpose. Section 151 is meant to serve the ends of justice and it is not justice to defeat the law with its help, particularly the equitable law of limitation. See in this connection M. V. Sundaresa Ayyar v. Pacala Subba Rao (A I R 1933 Mad: 258); Ajab Khan v. Alaf Gul (A I R 1935 Pesh. 146); Mst. Karam Bhari v. Jagan Nath (A I R 1936 Lah.55); K. P. L. S. S. Chettyar v. The Official Receiver (I L R 13 Rang. 595); and Maqbul Ahmed v. Orkar Pratap Narain Singh (A I R 1935 P C 85).

11. In some cases, the Judges have treated applications made for the restoration of applications as in effect containing prayers for the review of the orders of dismissal and have used section 5 of the Limitation Act for condoning the delay. Section 5 is as follows:‑-- "

5. Extension of period in certain cases.

Any appeal or application for a review of judgment or for leave to appeal or any other application to which this section may be made applicable (by or under any enactment) for the time being in force may be admitted after the period of Limitation prescribed therefore, when the appellant or applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period." It does in terms apply to applications for review though it does not apply to applications for the restoration of suits or restoration of applications, (See Karai Chinnappa Naidu v. B. K. R Deenadayalu Naidu (A I R 1948 Mad. 480)). The power to review conferred by Order XLVII of C. P. C. is however so restricted that it is usually not suitable for reversing the orders of dismissal foil default. Order XLVII, rule 1 of C. P. C. is as follows:‑-

1. Any person considering himself aggrieved‑ (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed, or (c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or an account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review bf the decree passed or order made against him, may apply for a review of judgment to the Court which passed decree or made the order." The power of review is, therefore, often sought to be enlarged by combining it with inherent powers. See Bharat Chandra Nath v. Yasin Sarkar (AIR1917Ca1.31).

12. But using inherent powers or the power of review or the power conferred by section 5 of the Limitation Act, for altering the structure of C. P. C. or to defeat the Law of Limitation is not within the functions of a Judge. Rustomji has pointed out in his commentary on Article 163 of Limitation Act at page 9.53 (6th Edition) that: "Provisions of section 5, Limitation Act, do not apply to applications to set aside an order of dismissal for default. But the Bombay High Court has since made a rule under section 122, C. P. C , applying section 5 of the Limitation Act to applications under Order IX, rule 9, to restore suits dismissed for default, and the rule so made has been held to be intra vines. There being no similar rule in Madras, delay in making the application under Article 163 cannot be excused under section 5 of the Limitation Act. If the period of 30 days (Article 163) has expired, the bar cannot be got over by treating the application as one for the exercise of the inherent powers of the Court under section 151, C. P. C., 1908. If the 30 days have elapsed, the operation of Article 163 cannot be eluded by an application made ostensibly as for a review of judgment. Since the decision of the P. C. (1922) 3 Lah: 127 we must take it that a plaintiff whose suit has been dismissed for want of appearance under Order IX, rule 8, C. P. C. has no remedy by way of review. In other words, an application under Order XLVII, C. P. C. for review, designed merely, to escape the consequences of the law of limitation, is not maintainable when the proper remedy was an application under Order, IX, rule 4 or rule 9 and the period of limitation for such an application (under Article 163) has expired."

13. The more I have tried to study the case‑law for reconciling the large number of inconsistent precedents that exist, the more I have become convinced that there is a "hope lessly conflicting mass of judicial decisions" on every important aspect which is relevant to the questions that are involved in. this revision. There is a conflict as to whether‑

(i) Order IX of C. P. C. should be applied to applications or not. (See paras. 5, 7 and 9 above). (ii) Section 151 of C. P. C. should be applied to applications for the restoration of applications or not. (See paras.9 and 10 above). (iii) Article 163 or Article 181 of the Limitation Act applies to applications for the restoration of applications. (See paras. 7 and 8 above). (iv) Applications for the restoration of applications should be treated as applications for the restoration of the suits or not. (See para. 9 above), (v) The powers of review should be used for reversing orders of dismissal or not. (See paras. 11 and 12 above). (vi) Section 5 of the Limitation Act should be used for enlarging the period of limitation and powers of review or not. (See paras. 2 and 12 above).

14. There is a vast growth of precedents on the above mentioned conflicts of opinion and whatever view is taken one will find oneself in good company, but I have resisted the temptation of referring to a large number of precedents because I do not wish to make this judgment a digest of cases. However, statutory law cannot be taken to have been amended when it is overladen with judicial decision. On the contrary in the words of Lord Macaulay written in 1837 with respect to the first part of the Penal Code: "unless proper precautions be taken the decisions on such questions will accumulate till they form a body of law of far greater bulk than that which has been adopted by the Legislature . . . . . it is most desirable that measures should be taken to prevent the written law from being overlaid by an immense weight of comments and decisions." He has made suggestions for amending the Code and for setting up a permanent Law Commission so that law may be kept up‑to‑date. Neither Lord Macaulay nor Sir James Stephen the author of tire Evidence Act considered those Codes to be sacrosanct as they have been taken to be by the subsequent jurists and lawyers. Sir James Stephen wrote in 1872 that amendments are: " as necessary as repairs are necessary to a railway. I do not think that any Act of importance ought to last more than ten or twelve years. At the end of that time, it should be carefully examined from end to end, and whilst as much as possible of its general framework and arrangement are retained, it should be improved and correct at every point at which experience has shown that it required improvement and correction . . . . . If you want your laws to be really good and simple, you must go on re‑enacting them as often as such a number of cases are decided upon them as would make it worth the while of a law book‑seller to bring out a new edition of them." The reason why both of them advocated continuous amendments, undoubtedly, was that the so‑called "case‑law" has a little part only to play with respect to statutes. Its concept of common law which is true to the conditions that have prevailed and still prevail in England and in which the authority of the Judges to make law is recognised, is incongruous with the concept of codified law. Case‑law can‑ play about the same part with respect to codified law that it plays in France. The‑ superior Courts can only explain the statutes authoritatively. They can neither add anything to them nor subtract anything from them. If they do so they exceed their authority. The existence of endless conflicts of opinion with respect to any part of statutory law reveals that either the law or the perspective of the Judges needs a change.

15. At present my attempt is to appreciate the trends of thought and to see whether a proper solution of the problem in hand can be found. All the High Courts and practically all the Judges agree that some remedy 'should be devised to help the plaintiff who, in the picturesque language of Daniels, J. breaks his leg on the way to Court but they do not agree as to what such a device could be, because there are flaws in all the devises that have been used and to which reference has been made above. A suitable device, however, must be found. It may be found in some fair and trust‑worthy use of the existing law or by legislation or by the use of the rub:‑-Making power of the High Court.

16. If resort is not made to legislation and the existing law only is used then it is to be borne in mind that the most important requisites of such a device are that it should neither be in violation of the law, nor should it be in disregard of the enunciation of law made by an authority like the Privy Council. These considerations rule out the application of section 141, of C. P. C. to Order IX of C. P. C. and the application of Order IX of C. P. C. to the restoration of application. They also rule out the use of section 151 or Order XLVII of C. P. C. or section 5 of the Limitation Act to overcome the bar of the law of limitation. They further require that the period of limitation of 30 days prescribed by Article 163 for restoring suits should not be allowed to be enlarged to three years or more by circuitous arguments.

17. It is impossible to achieve the above objective unless, at least, the High Court uses its rule‑making power for this purpose. The Bombay High Court has used the simple devise of making section 5 of the Limitation Act applicable to rules 4, 9 and 13 of Order IX and to rule 9, of Order XXII of C.' P. C. with the result that applications for the restoration of those applications which were made to restore suits need not be made because second, third or more applications can be made with the use of section 5 of the Limitation Act to get a suit restored or a decree or abatement set aside. This devise has the advantage of making an extended use of section 5 as is contemplated in the section itself and off' preserving the restrictions contained in that section which are in harmony with the spirit of the Limitation Act, rather than defeating the law of limitation in a manner and' to an extent that was not contemplated by the Legislature.

18. In the present state of the law I am constrained to hold that the last application of the present applicant did not lie under Order IX of C. P. C., that section 151 could not be used to entertain it, that Article 181 of the Limitation Act does not and should not be applied to it and that it is of no use for the present applicant to treat it as an application for the restoration of the suit because it was clearly barred by time under Article 163 of the Limitation Act and section 5 of that Act does not apply to it. I wish to be candid and hold that the applicant has no remedy if a comprehensive view is taken and law is not administered disjointedly to serve a preconceived purpose.

19. The application for revision is accordingly dismissed with no order as to costs. S. Q. Application dismissed.