1990 PLP 1062 (MLD)

I have given anxious consideration to the above submissions of the learned counsel. In the above Karachi case cited by Mr. Sharfuddin Ada it was held by Muhammad Haleem J(as he then was):‑‑ "The dismissal of a cause for default of appearance is as much a final order as a dismissal on the merits; and the Court cannot set aside its own order unless it has jurisdiction to do so. In the case of suits and appeals the power exists under Order IX, rule 9 and Order XLI, rule 19, Civil Procedure Code to set aside dismissals of suits and appeals in default of appearance; but there is no corresponding provision relating to civil revision petitions ......" "Necessarily, therefore, there has to be jurisdiction before the inherent power can be invoked and not independently of it, otherwise it will be a case of usurpation of power. I would, therefore, venture to answer this question from this angle. While the Code expressly provides for setting aside the dismissal for default of an ex parte decree in suits and on the same footing such orders in appeals, there is none so far as the revision is concerned. In the case of suits and appeals, therefore, the judicial power is manifest from the provision which defines the jurisdiction. It is therefore in aid of this jurisdiction that the judicial power exists. In the case of revisions, however, no such power can be said to exist without a provision." As against this in the case of Jan Muhammad v. Muhammad Asghar PLD 1981 SC 513, a case of similar nature was remanded to the High Court of Lahore for examining the sufficiency of cause. In thins case a revision application was dismissed for non‑prosecution by the Lahore High Court and the application moved for restoration was also dismissed as no sufficient cause was made out but their Lordships in the Hon'ble Supreme Court were pleased to accept the appeal and the case was remanded with the observations:‑‑ "It is, therefore, clear that question of sufficiency of cause needed to be examined by excluding the influence of the aforementioned circumstance. In the circumstances of the case, we deem it just and proper that instead of deciding this question, which fell within the discretionary jurisdiction of the High Court, the matter should be remanded for fresh decision. We accordingly, allow this appeal. The matter shall be remitted to the High Court where the application for restoration of the revision petition shall be deemed to be pending and shall be decided afresh in accordance with law. There shall be no order as to costs." It can, therefore, safely be assumed that it is within the discretionary jurisdiction of the High Court to restore the revision application, dismissed for non‑prosecution, if sufficient cause is shown. In the case of Babu v. Mst. Niaz Bibi PLD 1982 Lah. 192 a learned Single Judge of the Lahore High Court, following the above‑cited Supreme Court case has also held that a revision application dismissed in default, can be restored if sufficient cause is shown. The other case on the point is Syed Iqbal Hussain Shah v. Abdul Ghani PLD 1967 Lah. 633 wherein also it has been held by Muhammad Fazle Ghani Khan, J (as he then was) that the revision application can be restored in exercise of inherent powers provided sufficient cause is shown. Considering the case‑law as cited above it may be observed that the specific provisions are made in the Civil Procedure Code for dismissal in default of a suit and appeal as embodied in Order 9 Rule 8 and Order 41 Rule 18 and consequently the provisions have also been made as contained in Order 9 Rule 9 and Order 41 Rule

19. There is no specific provision made in same Code for dismissal of a revision application for non‑prosecution but this power can be considered to be inherent in all Courts exercising the powers of a Civil Court and when such power has been exercised in inherent jurisdiction to dismiss a revision application then the same Court will have the inherent jurisdiction to restore the revision application subject, of course, to the showing of sufficient cause. The second ground urged by the learned counsel for the respondents challenging the maintainability is that the petitioner had died before the dismissal of the revision application and his legal heirs not having been brought on record, the revision application is deemed to have abated and, therefore, the application on behalf of his son could not be moved. He has placed reliance on the provisions of Order 22 Rule 9 CPC. It may be observed that an amendment has been brought in the provisions of Order 22 Rule 3 CPC vide Ordinance XII of 1972 whereby sub‑rule (2) has been added. The two provisions are reproduced hereunder:‑‑ "(2) Where within the time allowed by law no application is made or intimation is given under sub‑rule (1), the Court may proceed with the suit, and any order made or judgment pronounced in such suit, shall, notwithstanding the death of such plaintiff, have the same force and effect as it had been passed or pronounced before the death took place:" "

9. Effect of dismissal.‑‑(1) When a suit is dismissed under rule 8, no fresh suit shall be brought on the same cause of action. (2) Any person claiming to be the legal representative of a deceased plaintiff or defendant or the assignee or the receiver in the case of an insolvent plaintiff may apply to the Court for setting aside any order made or judgment pronounced by it in his absence; and if it is proved that he was prevented by any sufficient cause from continuing the suit or defending the suit, as the case may be, the Court shall set aside the order or the judgment upon such terms as to costs or otherwise as it thinks fit." In view of the above I do not agree with the submissions of the learned counsel for respondent. The plain reading of the above two provisions shows that Order 22 Rule 9 is not applicable to the present case. Now I proceed to examine whether sufficient cause has been shown by the petitioner. The applicant has filed an affidavit in support of his above‑said application wherein he has stated that his father had filed the present revision application through his Advocate Mr. Farman Ali who was pursuing the same and that during pendency of revision application his father had died and as the matter was being pursued by the Advocate, he was not aware of the day to day proceedings of the case. He further states that this Advocate Mr. Farman Ali had shifted to Karachi for treatment of his illness without informing the legal representatives of the deceased and that he came to learn about the dismissal of revision application only one day prior to the filing of application for restoration which was filed on 12‑2‑1989 through another Advocate Mr. MA. Rashid. The Vakalatnama of Mr. MA. Rashid shows that he has been engaged on 12‑2‑1989 and that he has filed this application for restoration. These facts are not denied by the respondent No. 1 who has filed objections to this application on 27‑3‑1989 supported by his affidavit. The above show‑cause in the circumstances of the case appears to be sufficient cause and I, therefore, allow this application and order E the revision application to be restored with its original number at the stage it was when the same was dismissed for non‑prosecution. There will, however, be no order as to costs. (2) CMA 49/89. (3) Statement. CMA 49/89 is for joinder of the legal representatives of deceased applicant. In view of the orders passed on CMA 48/89, this application as well as the statement showing the names of the legal representatives of deceased respondent No. 2 (Habib Ahmed) are allowed. The names of the said legal representatives may be joined in the title of memo of revision application. Amended memo of revision application to be filed within three weeks. AA./U‑70/K??????????????????????????????????????????????????????????????????????????????????????? Applications allowed.