P L D 1973 Lahore 613 (PLP)

Muhammad Sharif and Malik Muhammad Qayyum for Respondent No.

1. Respondent No. 2 in person. Sh. Mazhar‑ul‑Haq for Respondent No.

3. Nemo for Respondents Nor. 4 to

8. Dates of hearing: 12th and 13th December 1972. This revision petition is directed against the order of the learned Civil Judge, 1st Class, Lahore, dated 23rd May 1969, whereby he refused to restore the application for setting aside the ex parte decree.

2. Brief facts of the case are that the respondent‑plaintiff filed a suit for administration of the property left by her parents against his three brothers and a sister. The suit was filed on 3rd January 1946. Ultimately she succeeded in getting an ex parte decree on 29th July 1966. An application under Order IX, rule 13 read with section 151, C. P. C. for setting aside the ex parte decree was moved which was dismissed in default on 7th December 1968. Another application for restoration of the earlier application was made on 9th of December 1968, which was dismissed by the impugned order. The learned Civil Judge relied on a Single Bench judgment Najam Ali v. Lal Khan and 8 others (P L D 1968 Kar. 59) and held that the application was not competent.

3. Mr. Muhammad Ilyas Khan, learned counsel for the petitioners has vehemently argued that the learned Civil Judge by passing the impugned order has refused to exercise jurisdiction vested in him under Order IX, rule 9 read with section 141, C. P. C. There was, therefore, not only an erroneous legal view taken but it amounts to refusal to exercise jurisdiction. He relied on Ahmad Ali v. Registrar, Co‑operative Societies (P L D 1971 Kar. 182) and argued that the learned Civil Judge has also ignored Muhammad Ray Nawaz v. Muhammad Sadiq (P L D 1966 B J 27) which was authority by Sardar Muhammad Iqbal the present Chief Justice of the Lahore High Court, direct on this point. Lengthy arguments have been addressed on the question whether such an application is competent. There is difference of opinion between the various High Courts on the point. In Ahmed Ali's case referred to above Noorul Arfin, J. while exercising jurisdiction under section 115, C. P. C, held that a second application under Order I X for restoration of a previ ously dismissed application under the same provision would lie, either under Order IX itself or under section 141, C. P. C. A 3n Najam Ali's case such an application was refused by Qadeeruddin, J. as his Lordship then was. It was held in this case that ‑limitation for application under Order IX, rule 9, C. P. C. 9s governed by Article 163 of the Limitation Act and if the provisions of section 141, C. P. C. are made applicable then Article 181 of the Limitation Act would apply which would lead to endless litigation, for, there will be no bar in putting successive applications for seeking restoration of the application dismissed in default before the expiry of every third year. Extensive case -law on the subject has been considered by Noorul Arfin, J. in Ahmad All v. Registrar, Co‑operative Societies who has been impressed by the two judgments of Mahmood, J, and Suleman, J. reported as Narsingh Das v. Mangal Dubey ((1882) 5 All. 163) and Ganejh Prasad v. Bhagelu Ram and others (A I R 1925 All. 773) respectively. In the former case observations of great Jurist Mahmood, J. were to the following effect:‑ "Courts are not to act upon the principle that every procedure is to be taken as prohibited unless it is expressly provided by the Code but on the converse principle that every procedure is to be understood as permissible till it is shown to be prohibited by the law. As a matter of general principle prohibitions cannot be presumed."

4. The learned Judge, in case be had taken into considera tion Muhammad Rab Nawaz v. Muhammad Sadiq while relying on Najam Ali v. Lal Khan and others he would not have perhaps passed the impugned order, in any case. In my humble view, the learned Judge while holding that the application was not compe tent, has refused to exercise jurisdiction vested to him under Order IX, rule 9, C. P. C. read with section 141, C. P. C. which is one of the grounds for interference under section 115, C. P. C. Mr. Muhammad Sharif learned counsel for respondent No. 1 vehemently opposed the petition on the question of maintain ability of the application under Order IX read with section 141 C. P. C. and the exercise of jurisdiction by this Court under section 115, C. P. C. His main reliance was on Najam Ali's case. He, however, did not cite any other authority. I am inclined' to follow the view of Noorul Arfin, J. with whom Dorab Patel, J. has concurred in Ahmed Ali v. Registrar, Co. operative Societies. This view is also held by the present Chief Justice Sardar Muhammad Iqbal in Muhammad Rab Nawaz v. Muhammad Sadiq.

5. On the question of exercise of jurisdiction under section 115, C. P. C. learned counsel for the respondent has relied on N. S. Venkatagiri Ayyangar and another v. The Hindu Religious Endowments Board (Madras) (A I R 1949 P C 156) and argued that the High Court has no power to interfere because it differs, however, profoundly from conclusions of the Subordinate Court upon question of fact or law. There is a clear fallacy in his arguments, for, this does not only relate to the question of erroneous view taken by the learned Judge, but it manifestly touches the question of refusal to exercise jurisdiction vested In him in accordance with law. I am fortified in this view by Joy Chand Lai Babu v. Kamalaksha Chaudhry and others (P L D 1949 P C 114) wherein it has been held "if the erroneous decision results in the Subordinate Court exercising a jurisdiction not vested, in it by law, or failing to exercise a jurisdiction so vested, a case for revision arises under subsection (a) or subsection (b) and subsection (c) can be ignored."

6. Muhammad Swaleh and another v. Messrs United Grain & Fodder Agencies (P L D 1964 S C 97) and a large number of authorities begin ning from 1943 have been perused They are namely, Bibi Gurdevi v. Chaudhry Muhammad Bakhsh and others (A I R 1943 Lah. 65), The Lahore Improvement Trust v. Sh. Karamat Ali (P L D 1959 Lah. 597), Khurshid Ahmad and another v. Khair Din (P L D 1962 Lah. 313), Rafique Saigol v. Broome and Wellington and another (P L D 1963 Lah. 455), Muhammad Ahsan Ullah Khan v. Muhammad Sami Ullah Khan (P L D 1954 Lah. 101.), S. Zafar Ahmad v. Abdul Khaliq (P L D 1964 Kar. 149), Rahmatullah Khan and another v. Shujaat Khan and others (P L D 1968 Pesh. 67), Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another (P L D 1970 S C 139), and Province of Sind and another v. Muhammad Hashim (P L D 1971 Kar. 793;). The perusal of this case‑law including the judgment on which I have relied (Ahmad All v. Registrar, Co‑operative Societies), it becomes abundantly clear that the revision is competent.

7. For the foregoing reasons this petition succeeds and is accepted. However, on account of long litigation between the parties, I make no order as to costs and direct that the learned trial Judge v kill dispose of the application In question its accordance with law within a period of three months. S. A. H. Petition accepted