1995 PLP 292 (CLC)

The only question arising in this petition under section 115 of the C.P.C. is as to whether application for restoration of an application for re admission of an appeal dismissed for non‑prosecution was competent in law.

2. The facts necessary for the disposal of this petition are that the petitioner, feeling aggrieved of the judgment and decree dated 26‑11‑1987 of the Civil Judge, Gujrat dismissing his suit for declaration with consequential relief, had filed an appeal in the District Court. The appeal filed by the petitioner was, however, dismissed for non‑prosecution by the Additional District Judge on 1‑2‑1988 when no one appeared on his behalf. The petitioner moved an application for re‑admission of the appeal but that application again was dismissed for non‑prosecution on 10‑7‑1990. On 14th July, 1990, an application for restoration of the application for re admission of the appeal was moved by the petitioner which has been dismissed by the Additional ‑District Judge on 28‑2‑1994 on the ground that no application for restoration of an application for re‑admission of appeal was competent.

3. In support of this petition, Mr. Naveed Shaharyar, learned counsel for the petitioner, relying upon Manager, Jammu & Kashmir, State Property in Pakistan v. Khuda Yar and another (PLD 1975 Supreme Court 678) and Najam Ali v. Lal Khan and 6 others (PLD 1968 Kar. 59) has strenuously argued that an application lies for restoration of the application for re‑admission of an appeal dismissed for non‑prosecution and the view taken by the Additional District Judge is not in accordance with law.

4. Learned counsel for the, respondents has opposed this petition by arguing that as there is no provision in the Code of Civil Procedure for restoration of an application for re‑admission of the appeal dismissed for non prosecution, it cannot be restored.

5. There is no force in this contention of the learned counsel for the respondents. Although there may be no specific, provision in the Code of Civil Procedure for filing an application for restoration of an application for re admission of an appeal which had been dismissed for non‑prosecution but equally there is no specific prohibition forbidding the Court to entertain such an application. Unfortunately, the Additional District Judge acted under the impression that if there be no specific provision in the Code of Civil Procedure for doing a specific act, the same cannot be done. On the other hand, it is an accepted principle of law that a procedure which tends to advance cause 6f justice, if not specifically prohibited by the Code of Civil Procedure can be followed by the Court.

6. While at this point it may also be observed that there is no provision in the Code of Civil Procedure which .permits a Court to dismiss a miscellaneous application for non‑prosecution but that does not mean that if no one appears on the date of hearing the Court is powerless to take any action.

7. Section 151 of C.P.C. recognizes the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse the process of Court. As, observed by Mahmood, J., in classic judgment in Narsingh Das v. Mangal Dubey and others (ILR Vol. 5, Allahabad 163), "Courts are not to act upon the principle that every procedure is to be taken to be prohibited unless it is expressly provided for by the Code, but on the converse principle that every procedure is to be understood as permissible till it is shown to be prohibited by law." (Also See H.M. Saya & Co., Karachi v. Wazir Ali Industries Ltd., Karachi and another, PLD 1969 Supreme Court 65). Thus, there is no difficulty in holding that the Court has not only the power to dismiss a cause under its inherent jurisdiction in matters not specifically dealt with by the Code of Civil Procedure but also to restore these causes on sufficient ground being disclosed.

8. The view expressed by the Additional District Judge about the maintainability of an application for restoration of an application dismissed for non‑prosecution cannot be sustained for another reason which is that by virtue of section 141 of C.P.C. procedure prescribed in respect of suits is also applicable to original applications filed before the Court. Earlier, in Najam Ali v. Lal Khan and 6 others (PLD 1968 Karachi 59), a learned Single Judge of West Pakistan High Court had taken the view that section 141 of C.P.C. was not applicable in such a situation and as such the Court was not competent to restore an application for restoration of suit dismissed for non‑prosecution. This judgment was, however, expressly dissented from by a Division Bench of this Court in Ahmed Ali v. Registrar, Cooperative Societies (PLD 1971 Karachi 182) wherein it was ruled that an application for restoration of a previously dismissed application for restoration of a suit was maintainable both under Order 9 read with section 141 as well as section 151 of C.P.C. In Sheikh Ghulam Moin‑ud Din and 3 others v. Mst. Razia Begum and 7 others (PLD 1974 Lahore 173), the same view was reiterated. In the face of these authoritative pronouncements, it is not understandable as to how the Additional District Judge could hold that the application for restoration of an application for re admission of the appeal which had been dismissed for non‑prosecution was not maintainable. In view of what has been stated above, this petition is allowed; the impugned order is set aside and the case is remanded to the Additional District Judge for decision on merits of the application seeking restoration of the application for readmission of the appeal which had been dismissed for non prosecution on 10‑7‑1990. No order as to costs. A‑A.IA‑730/L Revision accepted.