P L D 1954 Baghdad﷓ul﷓Jadid 53 (PLP)

ABDUL RASHID, J.‑Sheikh Abdul Rahman petitioner brought a suit in the Court of Senior Sub‑Judge, Bahawalpur for recovery of Rs. 7,500 against Mal Bhagwan Das and Muhammad Nawaz defendants on the allegation that Muhammad Nawaz had deposited the amount in trust with Mal Bhagwan Das on 30th June, 1947, who (Mal Bhagwan Das) afterwards migrated to India, that Muhammad Nawaz defendant transferred the amount in favour of the plaintiff on 8th September, 1951 after obtaining the consideration thereof and that therefore the plaintiff prayed for a decree in the said amount to him against both the defendants. During the course of the proceedings the plaintiff absented himself on 17th May 1952 and the defendants were present but denied the claim of the plaintiff, upon which the Court dismissed the suit under O. IX, r. 8, C. P. C. On 26th June 1952, the petitioner made an application for review of the order of dismissal, but this application was dismissed in default under O. IX, r. 8, C. P. C. on 12th October, 1952, On the same day the petitioner applied for the restoration of the application for review but this application was also dismissed owing to his default in appearance on 23rd March, 1953. From this order of dismissal he again applied to the Senior Sub‑Judge who, however, dismissed it on the ground that the petitioner had been guilty of continued negligence in the prosecution of his case and had also failed to show any sufficient cause for his non‑appearance in Court. From this order of dismissal he has now come up in revision to this Court. Mr. Mustafa Khan, counsel for the respondent has raised two preliminary objections to the competency of the petition. In the first place he says that the dismissal of the application being under O. IX, C. P. C., the order is appealable under O. XLIII, r. 1 C. P. C., and no revision petition lies. His second objection is that Muhammad Nawaz defendant died during the review application, but no legal representative of the deceased was brought on the record within the statutory period which results in the abatement of the suit in toto; as he was a necessary party and relief had been sought against him as well. In my opinion both the contentions are legally sound and must prevail. I find no force at all in the contention of the petitioner that the application for review was not under O. IX, r. 9, but under section 151 of the C. P. C., and that therefore any subsequent application for restoration should not be deemed under O. IX, r. 9, C. P. C. In civil revision No. 25 decided by me on 5th April 1954, to which the peti tioner's wife was a party, I fully discussed this in the light of the Rulings cited on either side and came to the conclusion that the Court cannot in exercise of its inherent powers extend the period of limitation for applications to set aside the order of dismissal for which there are specific provisions in the Limitation Act (See A I R 1943 Sind 132 and P L D 1953 Dacca 133). The same view was expressed in A I R 1948 Mad. 680, where it was held that Court has no inherent jurisdiction to enlarge time under section 5 Limitation Act for an application under O. IX, r. 9, C. P. C. to set aside an order of dismissal for default. I therefore overrule this contention of the petitioner and hold that the petitioner could not legally invoke the inherent powers of the Court in applying for restoration of his suit, when a specific proce dure bas been provided for by the Code under O. IX, r. 9 C. P. C. I am therefore of the view that the first application for setting aside the dismissal of the suit, which was obviously time‑barred, having been filed more than thirty days after the date of dismissal is incompetent. Again any subsequent application for the restoration of a previous application in the Court of the Senior Sub‑Judge shall be deemed to have been made under O. IX, r. 9 read with section 141 and not under section 151, C. P. C. Such last application of the petitioner was dismissed by the Senior Sub‑Judge on merits on 27th August 1953. Now the question for determination in this case is whether this revision application is competent. It has been held by the High Courts of Lahore, Madras and Rangoon, the Judicial Commissioner's Court of Peshawar and Chief Court of Oudh that an application for restoration of a previous application dismissed for default lies under O. IX, r. 9 by virtue of section 141 C. P. C. Now as held in A I R 1937 Oudh 344 when the aid of section 141 can be invoked to bring within the scope of O. IX, r. 9 an application to restore to hearing a previous application for restoration which has been dismissed for default, the same section can also be invoked to make appealable under O. XLIII (I) (c) the order which is passed upon such an application. The revisional powers of the High Court under section 115 can be invoked only in case in which no appeal lies to the High Court. In the present case, however, an appeal could lie under O. XLIII, r. 1 to the High Court, I therefore have no jurisdiction in revision. The second point is quite simple and need not detain us any longer. The second defendant Muhammad Nawaz died when the application for review was pending in the Court of the Senior Sub‑Judge and so far no legal represen tative of the deceased has been brought on the record. As the second defendant was a necessary party to the suit and the relief sought was joint against both the defendants, in these circumstances the suit abates not only against the deceased defendant, but also renders it impossible to proceed) against the other defendant alone as the liability of both is joint. Moreover, the petitioner bases his claim primarily on the liability of the deceased defendant to him and unless he cans prove this liability he can establish no claim against No.

1. Hence in the absence of the legal representative of Muhammad Nawaz, the whole suit fails, I therefore accept both the objections and reject this revision petition with costs. A. H. Petition rejected.