1997 PLP 1623 (SCMR)

FAZAL ILAHI KHAN, J.‑‑‑Petitioner seeks leave to appeal against the judgment of learned Peshawar High Court, Peshawar, dated 14‑9‑1995 passed in Civil Revision No.523 of 1993.

2. Respondents brought a suit for possession by redemption of house No.2937 Mohallah Mohajian Bashtnagri, Peshawar city by payment of Rs.3,

000. It was' alleged that Taj Muhammad predecessor‑in‑interest of the respondents purchased the suit house through registered sale‑deed. He then mortgaged the same with possession to the petitioner/defendant in the year 1969 for a sum of. Rs.3,

000. As the mortgagees were not willing to accept the mortgage money and restore possession to the respondents a suit was filed for possession by redemption which was finally dismissed in default. Respondent then brought a fresh suit which was resisted by the petitioner on various legal and factual pleas. It was stated that the earlier suit having been dismissed under Order IX, Rule 8, C.P.C. no fresh suit was maintainable. The learned Judge finding that the earlier suit having been dismissed under Order IX, Rule 8, C.P.C. and fresh suit was barred under Order IX, Rule 9, dismissed the suit. However, in appeal by the respondent the learned Additional District Judge reversed the finding of the trial Judge on the issue and after setting aside the judgment and decree remanded the case by order dated 6‑7‑1993 for decision on merits. The judgment of the learned Additional District Judge was challenged by the petitioner by Civil Revision No.523 of 1993 which was dismissed by the learned High Court vide order dated 14‑9‑1995 against which leave to appeal is sought for.

3. Learned counsel for the petitioner reiterated the same arguments which did not prevail with the learned Additional District Judge and the learned High Court. The two Courts below relied on the Proviso to Rule 9 of Order IX, C.P.C. which is as under:‑‑ ORDER IX. Rule

9. Decree against plaintiff by default bars fresh suit.‑‑(1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. (2) No order shall be made under this rule unless notice of the application has been served on the opposite‑party. (3) The provisions of section 5 of the Limitation Act, 1908 (IX of 1908), shall apply to applications under sub‑rule (1). The following was added as Proviso to sub‑rule (1):‑ "Provided that the plaintiff shall not be precluded from bringing another suit for redemption of a mortgage, although a former suit may have been dismissed for default."

4. Such being the case both the Courts below were perfectly justified in holding that the. respondents' suit for redemption was not barred under Order IX, rule 9, of the C.P.C. The contention of the learned counsel for the petitioner that the respondent did make an application for restoration of the suit dismissed for default, therefore, on that score one remedy Having been exhausted he could not avail of another remedy by filing a fresh suit is misconceived. Dismissal of the application for restoration or dismissal of an appeal against the said order did not bring any change in the legal position as by such dismissal of the application or dismissal of appeal against such order the original order attains finality which does not bar filing of fresh suit under the aforementioned Proviso. There is, therefore, no infirmity in the judgment of the learned High Court. Leave to appeal is, therefore, refused and petition is dismissed. A.A./M‑21/S Leave refused.