P L D 1955 Sind 248 (PLP)

INAMULLAH, J.

This is an application under Order 39, rules 1 and 2 read with section 151 C. P. C., for a mandatory injunction ordering the defendant, Federation of Pakistan, to restore possession of the flat to the plaintiff. The application arises under the following circumstances. A suit has been filed by the plaintiff against the Federation of Pakistan challenging the requisition of the premises in occuption of the plaintiff. The plaintiff had obtained an injunction order from this Court during the pendency of the suit restraining the defendant from taking possession of the flat in his possession. The suit, however, was dismissed for default on 16th August 1954, and an application for restoration was made on 23rd August 1954, and the present application was also moved on the same day. In the meantime, the Federation of Pakistan had taken possession of the premises and put a lock thereon. It is not denied by the learned advocate for the defendant that the premises are not locked. I may make it clear at this very stage that the defendant-Federation of Pakistan-has not urged that any body else has been put in occuption of the premises in question. The application under Order 9, rule 9 C. P. C., was made on the ground that the learned Advocate for the plaintiff did not know the date of hearing of the case It was also supported by an affidavit by his client stating that the plaintiff also did not know the date of hearing of the suit. The Advocate had filed his own affidavit stating that as he was out of station from Karachi, he did not know the date of hearing. The grounds given in support of the application under Order 9, rule 9 C. P. C., appear to have been accepted by Bachal, J who had restored the suit on payment of some cost to the defendant. The main question before me is whether an order passed under Order 9 rule 9 C. P. C., amounts to restoration not only of the suit but of all the interlocutory orders that may have been passed in favour of the plaintiff. Mr. Wahid Ahmad, the learned Advocate for the plaintiff, has relied on the case of Saranatha and others (A I R 1934 Mad. 49). It was observed in that case that

"Unless anything appears on the face of the order that all interlocutory matters were not restored, everything that may have been done in between the order dismissing the suit and the restoration, should be deemed to have been restored." The view taken by the learned judge in that case appears to be an equittable view and in the interest of justice unless anything is shown or urged by the other side which should be unfair or detrimental to the interest of the defendant, the Court should, under its inherent power, restore the parties to the same position as they were on the date when the suit was dismissed for default. In this connection, the commentary by Chitaley under Order 9, rule 13 is noteworthy. It runs as under- "The effect of setting aside an ex parte decree is to restore the parties to the position they previously occupied and the Court should proceed to decide the suit as it stood before the decree. The trial of the suit should commence de novo as against the persons in whose favour the decree was set aside and the evidence that had been taken in the ex pane proceedings should not be used against them. Any attach ment that has been issued or any sale that has taken place in pursuance of the ex parte decree becomes null and viod and the Court can also order restitution except as against a stranger auction-purchaser of anything taken in execution of the decree." This principle, to my mind, with more force applies in a case where a suit is dismissed for defualt of the plaintiff. In the present case, it is not contended by the defendant, Federation of Pakistan, that a third party a1irerest has come into being and therefore he would be prejudiced by putting the plaintiff in possession of the premises in question. The defendant, the Federation of Pakistan, was already restrained from taken possession. In fact, the defendant, the Federation of Pakistan, though it was not legally bound to wait, should have waited for the period of limitation to make an application under Order 9, rule 9 C. P. C. to expire and then taken possession. For the reasons given above, I would order the defendant to restore possession to the plaintiff within 2 weeks, A. H. Possession restored.