1981S C M R 313 (PLP)

MUHAMMAD AFZAL ZULLAH, J.-Leave to appeal has been sought from judgment dated 24th March, 1980, of the Lahore High Court, whereby a Civil Revision filed by the respondents, was allowed, with the consequence that an order of dismissal in default of a suit in a partnership case, was set aside. Respondents 1 to 7 had filed this suit for dissolution of partnership and rendition of accounts. A preliminary decree was passed on 26th October, 1970. An appeal from the petitioners/defendants' side to challenge the said decree was dismissed on 16-1-1971. A second appeal was also dismissed on 27th of April, 1971. A Local Commissioner had, in the meanwhile, sub mitted an interim report, but the suit was dismissed in default on 20th July 1972. No application for setting aside the dismissal for default was made within the normal limitation. However, the decree-holders filed a fresh suit on 28th of January, 1975. The plaint in this suit was rejected on 17-6-1977. It is thereafter that: on 31st August, 1979, an application was submitted from the plaintiffs' side for revival of their suit which stood dis missed for default on 20th July, 1972. The learned trial Court dismissed the application on 28th of May, 1979, on various grounds, including the one that such an application was not competent under section 151 of the C. P. C. and further that it was belated and time barred, and in any case the principle of abandonment and laches was applicable. Thus, it was held that the decree dated 26th October, 1970, had, by efflux of time, lapsed. On a Civil Revision from the respondents' side, a learned Single Judge in the High Court, after examining the material in this behalf, repelled the argument of the defendants/ petitioners that after the dismissal of the suit for default; the litigation was terminated for good consideration. Thus, but for the order dismissing the suit in default, it would have to be presumed that the contro versy between the parties continued, of course, after the stage of the preliminary decree. The proposition of law canvassed before the High Court was whether it was permissible for a trial Court to dismiss a suit for default after a prelimi nary decree has been passed. The answer with support of considerable case law was rendered in the negative. That being so, in the facts and circum stances of the case, the learned Judge in the High Court was of the opinion that the refusal of the trial Court to recall the order of dismissal in default was, in fact, refusal to exercise of the jurisdiction vested in it, and following the salutary principle of law that a litigant cannot be permitted to suffer on account of the mistake of Court, the High Court, in exercise of its revisional jurisdiction, set aside the original order of dismissal in default, dated 20th July, 1972, as well as the order of the trial Court dated 28th May, 1979, refusing to set aside the said dismissal. Learned counsel for the petitioners has not disputed the legal proposition that a suit cannot be dismissed in default after the stage of preliminary decree. He, however, has strongly argued that it was necessary for the plaintiffs to have made an application for revival of the suit under section 151, C. P. C. within a period of three years, by virtue of Article 181 of the Limitation Act, and because it was a question of limitation, therefore, according to him, the High Court was bound to take note of it under section 3 of the Limitation Act (notwithstanding the fact that the question of limitation was not pleaded in the High Court in this form). It is important to note that the learned Judge in the High Court did take note of the fact that the plaintiffs had reagitated the matter by way of a separate suit and not through an application for revival, on 28th of January, 1975 (it would be within three years of the dismissal in default). The plaint in the suit was rejected in June, 1977, wind without waiting much time, although it appears an appeal was filed against the said rejection, the plaintiff also moved an application for the revival of the suit under section 151, C.P.C. in August, 1977. Thus, it cannot be said that the question of conduct of the plaintiffs has, in any way, been ignored. In fact, this aspect of the matter stands concluded by a finding of fact by the High Court, namely, that the litigation was not terminated from the plaintiffs' side, after the dismissal of the suit for default, and thus there was no question of the termination, pleaded from the petitioner's side. In these circumstances, the High Courts was well within its revisional jurisdiction to set aside the original order of dis. missal of the suit in default, and because the trial Court had failed to exercise similar jurisdiction, which ought to have been exercised by it, the High Court was also competent to set aside the order of tine trial Court, whereby it had re fused to recall the dismissal of the suit in default. The approach of the High Court, in these circumstances, in unexceptionable. It is not a fit case for grant of leave to appeal. This petition, accordingly, is dismissed. Petition dismissed.