P L D 1950 Peshawar 3 (PLP)

Some few years back a piece of land situated in Data village of the Hazara District, was sold by one Yusaf Shah to Muhammad Sadiq. The sale gave rise to two pre emption suits, one being No. 717/1 of 1943. which was instituted on 8th September 1943 by Mst. Sarwar Jan, and the other No. 720/1 of the same year instituted by Mir Muhammad Shah a day later Each of the, plaintiffs was entitled to half of the land in dispute, and a ‑decree was passed by the trial Court on 21st January 1944, in their favour accordingly. In case No. 720/1 ‑of 1943, Mir Muhammad Shah lodged an application for execution, praying for the delivery to him of the possession of half the land. Muhammad Sadiq judgment debtor took exception to the execution of‑the decree, by pleading that though a minor, he was represented to be a major, and no guardian having been appointed for him for purposes of the suit, the decree passed against him was a nullity, and could not be enforced by execution. His' plea was rejected by the learned executing Court, but on appeal the learned District ‑judge set aside the order, and held that Muhammad Sadiq was a minor, and as he was not represented by a guardian in the course of the suit, the decree passed against him was not binding and therefore, not capable of execution. The matter came up on further appeal before this Court, and it was held by a Bench that Muhammad Sadiq being a minor could not be considered a party to the suit, and thus was not to a position to take advantage of section 47, Civil Procedure Code and question the validity of the decree in the course of execution proceedings, because that section could only be availed of by a person, who was really a, party and none else. Muhammad Sadiq was thus reduced to the necessity 'to filing a, regular suit to contest the validity of the decree, and secure its cancellation. As‑ two decrees were outstanding against him be instituted two .suits, viz., No. 73/1 of 1947, wherein he contested the validity of the decree passed , in favour of Mst Sarwar Jan, and No. 74/1 of the same year, which related to the decree standing in favour of Mir‑Muhammad Shah. It may be noted here that both the decree‑holders bad by this time transferred the land obtained by then by pre‑emption in favour of other persons, who also were impleaded in the new suits as defendants. Both the suits were tried, by Khan Abdul Hakim Khan, Sub‑Judge, 4th Class, Abbottabad, who by .his order, dated June 29th 1948, held that Muhammad Sadiq being a minor was not duly represented in the original pre‑emption suits. And thus the decrees passed in them were nullities as against him. A day earlier Abdul Karim a transferee of Mir Muhammad Shah, and Abdul Qayum Shah along with three others, who were. transferees from Mst. Sarwar Jan, put in applications in the Court, praying for the revival of the original pre‑eruption suits, in case the decrees standing in favour of their transferors were set aside. The, learned judge disallowed the applications and expressed the view that as Muhammad Sadiq was no party to the original suits, it was ridiculous to revive them, The order of the learned Sub Judge has been questioned by Abdul Karim on the one hand and Abdul Qayum Shah and his co‑transferees on the other by filing separate petitions for revision in this Court, praying for the restoration of the original suits. I propose to dispose of both the petitions by a single order, as the point involved in them is common. The first and the foremost question which presents itself for determination, is whether or not the learned Court below had jurisdiction to revive the original suits after having cancelled the decrees passed in them, on the ground that Muhammad Sadiq, who was a defendant there, was a minor and was not duly represented by a guardian ad litem. The learned counsel for Muhammad Sadiq at the outset advanced the view that in cases like the present one, there was no provision in the Civil Procedure Code for the revival of the original suits, after the decrees passed therein had been set aside. It is undoubted that the Civil Procedure Code does not contain any specific provision on the subject, but section 151, Civil Procedure Code which invests the Court with inherent powers to secure the ends of justice, can in such cases be invoked. Apparently the applications could be dealt with by the learned Court below under its inherent powers, and to say that the Courts have got no power whatsoever when such questions are involved, is to shut the door of justice against persons, who might be suffering hardships for no fault of their own. Such questions have more than once come up for decision before different High Courts, and it has been invariably held that restoration of the original suits can be ordered in such cases. Mon Mohini Das v. Behari Shah A. I. R. 1936 Cal. 421, is an authority on the point: Their Lordships have in a very lucid judgment held that revival of the original suits in such cases is the proper relief which a Court of law can grant to an aggrieved party. They remarked that the Court, which had passed a decree which was set aside, had the jurisdiction to revive the suit so as to restore the minors to the same position in which they were on the date on which the suit was filed against them. The Lahore High Court has gone to the extent of saying that after a decree had been set aside, the Court had not only got the jurisdiction to restore, but it should restore the parties to the position which they originally occupied in the former suit vide Bhagwan Singh v. Ali, A. I. R. 1934 Lah.

45. Similar view found favour with their Lordships of the Allahabad High Court in Inayat Hussain v. Emperor, A. I. R. 1928 All. 1684, and Talib Ali Shah v. Piarey Lal A. I. R. 1930 All.

644. I therefore, hold that the learned Sub‑Judge had jurisdiction to revive the original suits, and in failing to exercise that his order comes within the mischief of section 34 (1) (a) North‑West Frontier Province Courts Regulation, 1931. It was next urged by the learned counsel for the respondent that on a previous occasion when the decree had been set aside by the learned District .Judge at the instance of. Muhammad Sadiq in the course of appeal from the order of the executing Court, the original plaintiffs, viz., Mst. Sarwar Jan and Mir Muhammad Shah had applied for the restoration if their res pective suits, but their applications were dismissed default, and consequently no fresh applications to achieve the same end could be lodged by their successors‑in‑interest. The learned counsel did not go to the extent of saying that the order of dismissal passed on account of the default of the then applicants amount to res judicata. He also failed to quote any other provision of law which debarred the institution of fresh applications especially when the decrees have once more been set aside by the learned Sub‑Judge. A new occasion has been created for the petitioners to secure the revival of their original suits, because once again their interests have been jeopardized. In the circumstances I consider it but just to revise the order of the learned Sub‑Judge who has failed to exercise jurisdiction vested in him by law. I accept the, petitions, and setting aside the orders of the learned Sub‑Judge, order the restoration of the original suits Nos. 717/1 and 720/1 of 1943, which should be proceeded with according to law. In the peculiar circumstances of the case, I leave the parties to bear their own costs throughout. Orders announced. A.H. Revision allowed.