P L D 1965 Azad J & K 23 (PLP)

MUHAMMAD SHARIF, J.‑Sultan who died during the pendency of the revision petition in this Court and whose legal representatives Karam Din and others have been impleaded in this Court, brought a suit in the Court of the Sub‑Judge, Mirpur, for a declaration that the alienation made by Mst. Jeeo, the widow of his deceased brother Kaloo, was ineffective as against his reversionary rights as Mst. Jeeo was a limited owner. The suit was instituted on 17‑9‑56 and dismissed for default of appear ance on 13‑9‑

58. The counsel of the plaintiff was in Jail at that time. An application for the restoration of the suit was made and this application was also dismissed for default of appearance on 5‑11‑

58. Another application was made for tile restoration of the application which was dismissed for default on 5‑11‑58 and this second application was also dismissed for default of appearance on 15‑8‑

59. A third application was made on 19‑8‑59 for the restoration of the second application which was dismissed for default on 15‑8‑

59. The learned Sub‑Judge after regarding evidence dismissed this application by order dated 31‑5‑61 holding that no sufficient cause had been shown for the non‑appearance of the plaintiff on 15‑8‑59 when the last application had been dismissed for default. The plaintiff then went up in appeal before the District Judge, Mirpur who by his judgment and decree dated 26‑4‑62 dismissed the appeal holding that no sufficient cause had been shown for the non‑appearance of the plaintiff and also on the ground that the last application had been made for the restoration not of the original suit but of another application which was also for restoration and that such an application was not warranted by law. The plaintiff has now come up in revision before this Court. It was argued by the learned counsel for the plaintiff petitioner that the lower appellate Court had erred in law in holding that an application for the restoration of an application which itself was an application for restoration, does not lie. The learned District Judge has relied on A I R 1923 Born. 386 and A I R 1929 Cal. 17 for holding that such an application does not lie. Where an application under rule 4 or rule 9 or rule 13 of Order IX is itself dismissed for default, does a fresh application to restore that application lie? There is a conflict of opinions on this point. It has been held by the High Courts of Lahore A I R 1923 Lah. 302, A I R 1919 Lah. 155, A I R 1920 Lah. 304, A I R 1927 Lah. 71, 904, A I R 1929 Lah. 878 and Madras 1926 Mad. 325, 1926 Mad. 654, A I R 1948 Mad. 480 and Rangoon A I R 1926 Rang. 74, A I R 1933 Rang. 406 and the Judicial Commissioner's Courts of Peshawar A I R 1934 Pesh. 13 and the Chief Courts of Oudh A I R 1923 Oudh 146 and Manipur A I R 1961 Manipur 35 that such an application can be filed the reason being that the proceedings contemplated under Order IX are in the nature of an original suit and that by virtue of section 141, Order IX applies to them. On the other hand the High Courts of Bombay A I R 1923 Born. 386, Calcutta A I R 1929 Cal. 17, Patna A I R 1959 Pat. 121, A I R 1958 Pat. 107 and A I R 1922 Pat. 121 and Orissa A I R 1960 Orissa 176 have held that a second application to restore a prior application dismissed for default does not lie. But the High Courts of Allahabad, Calcutta and Madras and the Judicial Commissioner's Courts of Himachal Pradash in the following cases have struck a via‑media and held that the applica tion for restoration can itself be treated as a second application for restoring the suit provided there is no bar of limitation A I R 1924 All. 503, A I R 1927 Cal. 534, A I R 1917 Cal. 548, A I R 1914 Mad. 438, A I R 1923 Cal. 552 and A I R 1958 Him. Par.

9. In some cases the same High Courts and the Judicial Commissioner's Court of Manipur have held that in a proper ease the Court can also restore a proper application dismissed for default, under its inherent powers‑A I R 1961 Manipur 35, A I R 1925 All. 773, A I R 1929 All. 624, A I R 1917 All. 125 and A I R 1927 Cal.

534. The Patna High Court in A I R 1958 Pat. 107 took a similar view but a later Bench of the same High Court in A I R 1951 Pat. 121 (F B) and Orissa High Court in A I R 1960 Orissa 176 have held that in the absence of special circumstances a Court has no jurisdiction in the exercise of its inherent powers, to set aside a dismissal for default of an application under Order IX, rule 9 and to restore it and the ends of justice would be served if the applicant follows the remedy by way of appeal but the Full Bench decision was distinguished in a later decision of the same High Court and it was held that an order dismissing an application under Order IX, rule 4 not being appealable an application for its res toration under section 151 can be entertained‑A I R 1960 Pat.

504. The Court of the Nagpur Judicial Commissioner held in A I R 1932 Nag. 101 (F B) that an application for the restoration of the suit which application itself has been dismissed for default can be restored under the inherent powers of the Court though not under Order IX, rule 9, read with section

141. A similar view has been taken by Assam Court in A I R 1954 Assam 1, by the Madhya Bharat Court in 1956 Madhya Bharat Law Journal 959, by the Madhya Pradash Court in A I R 1962 Madhya Pradash 64 and Rajastan in A I R 1951 Rajastan

81. There is great divergence of opinion on the point whether where an application under any of the rules of Order IX is itself dismissed for default, does a fresh application to restore that application lie. The preponderance of view seems to be in favour of holding that such an application lies whether under the inherent powers of the Court under section 151 of the C. P. C. or by virtue of the application of section 141, C. P. C. The view of our own High Court is also that such an application lies. An unreported case Civil Revision File No. 35 of 62 Bagh Ali v. Mst. Nazir Begum, decided in January 1963, may be referred to in which an application for the restoration of an application made for the restoration of another restoration application was held to be competent. We, therefore, hold that such an application is competent. Now we proceed to see if the plaintiff‑petitioner has succeeded in making out a sufficient cause for his non‑appearance when the restoration application was dismissed for default on 15‑8‑

59. The plea taken in the application made for its restora tion on 19‑8‑59 was the illness of the plaintiff‑applicant. The plaintiff‑applicant examined himself and Ch. Feroze and Fazal Ellahi as his witnesses. The applicant stated from the witness box that he was ill on 15‑8‑59 and was suffering from asthma. He, further, stated that he is an asthma case since the last 8 or 9 years and had an attack since a month before the last date of hearing 15‑8‑59, therefore, he could not attend the Court on this date. Ch. Feroze stated that some 10 or 11 months back, i.e., during the month of August 1959 the plaintiff applicant was ill. He had an attack of asthma since 2J months before August 1959. Fazal Ellahi witness stated that the plaintiff was suffering from asthma and he was so suffering for the last 7 or 8 months before the date of hearing but during the last 2 months he was severely ill. The Courts below have disbelieved this evidence in view of the divergence period of the last attack of asthma that prevented the applicant from attending the Court on 15‑8‑

59. This is a finding of fact which we are not prepared to disturb. We agree with the views of the arts below. No sufficient cause has been made out for tile non appearance of the plaintiff‑applicant‑petitioner on 1 ‑8‑

59. Since no good cause has been made out for the restoration of the second application which was made for the restoration of the first application which again was made for the restoration of the suit, we need not go back and look into the facts whether the plaintiff had sufficient cause for his non‑appearance when his suit was dismissed or on the date when his first application for the restoration was dismissed. The revision petition is dismissed with costs. The record shall be sent back and the Registrar, Camp Mirpur (District Judge, Mirpur) shall announce the judgment to the counsel for the parties and secure their signatures on the judgment together with the date of announcement. K. B. A. Petition dismissed.