P L D 1959 (W (PLP)

S. 151‑When applicable. Once the justness of the cause is recognised, the provision of section 151 should be called in aid without any hesitation. Muhammad Fazil for Appellant. Muhammad Ahmed Mirza for Respondent. Karam Ellahi Khan as Amicus Curie. Dates of hearing : 7th, 9th and 22nd October 1958. On 7‑12‑1957 the Senior Civil Judge of Quetta passed an ex parte decree against the respondent. During the execu tion proceedings that followed the decree, the respondent filed an application for setting aside the same. This application was fixed for hearing on 3‑5‑58, on which date, neither the respondent nor his counsel put in an appearance, and consequently it was dismissed for default. During the course of the day, the counsel for the respondent appeared and filed an application for its restoration. The learned Judge, after hearing the parties, by his order, dated 29‑5‑58, restored the application, has been his order on S. 151, C. P. C. The present revision application has been filed against that order. Mr. Muhammad Fazil, the learned counsel for the petitioner, contended that there is no provision of law under which the restoration application could lie. According to him; the respondent could file an appeal against the order under Order XLIII, rule 1 (d) and since he did not avail of the statutory provision of law, the aid of S. 151, C. P. C. could not be invoked, for the inherent powers under S. 151, could only be invoked when there is no other remedy. In my view, the contention of the learned counsel that appeal lies under Order XLIII, rule 1 (d) from an order, dismissing an application filed under Order IX, rule 13, cannot be accepted. In Order XLIII, rule 1 (d), the word `rejected' and not the word `dismissed' is used. If there was no difference between these two words, before the mind of the legislature, there was no necessity of employing the word `rejected' in Order XLIII, rule 1 (d), and the word `dismissed' in Order IX. According to me, the word `rejected' implies an order on merits, while the word `dismissed' implies an order passed not on merits, but on account of the non appearance of a party. If the contention of the learned counsel,' that appeal lies under Order XLIII, rule I (d), whether the matter is decided on merits or is dismissed in default, were to prevail, the position will be, that in the latter case, there will be no evidence before the Appellate Court for its scrutiny. On what basis then, can it decide, whether the order of dismissal is correct or not. There is no provision in the Civil Procedure Code excepting Order XLI, rule 27, empowering Appellate Courts to record evidence. Order XLI, rule 27, empowers them, in certain limited cases, to record additional evidence i.e., evidence in addition to what is already on record, and that too only it that case, where tire evidence already on record, is, found to be either insufficient or not clear enough to enable them to give judgment. In a case where a matter is dismissed in default, there could be no evidence. The question that an Appellate Court will be called upon to decide, will be, whether or not, the appellant had a sufficient cause for his non‑attendance, and the law does not permit him to lead evidence before it. It is this obstacle which comes in the way of accepting the proposition that appeal lies whether the decision is on merit or it is on account of the non‑attendance of a party. The proposition if accepted will lead to absurd results, and there is always a presumption against absurdity. It cannot therefore be said that the respondent had a remedy under Order XLIII, rule 1 (d). The question then will be, what should‑ the man, having a sufficient cause for his absence, do. As Danial J., observed in his judgment Ganesh Prasad v. Bhagal Ram and others (A I R 1925 All. 773), that he was not prepared to hold, that, if the party prosecuting a resto ration application is genuinely prevented from appearing, he is left without a resource, for instance there may be a case in which a party accidentally breaks his legs while on his way to Court. The question whether a restoration application, in view of tile absence of any specific provision in the C. P. C., should be entertained or, not has quite naturally, agitated the mind of the Judges of several High Courts. There is conflict of opinion on this point. The High Courts of Lahore, Rangoon and the Judicial Commissioner's Court of Peshawar have held that such an application is competent, while the High Courts of Bombay, Calcutta and Patna have held that such an application does not lie. But, the High Court of Allahabad, in an earlier case and the High Court of Calcutta have struck a via media, and held that such an application can be treated as a second application under Order IX; provided there is no bar by limitation. In a subse quent case, reported in A I R 1925 All. 773, the High Court of Allahabad held that in a proper case, the Court can also restore such an application under its inherent powers. With all due respect, I, far the reasons: already stated, cannot persuade myself to accept the view that a restoration application if does not lie. At the same time, the remedy suggested by the High Court of Allahabad in the case Ptambar Lal v. Dodee Singh (A I R 1924 All., 503), and the High Court of Calcutta, in the case Sarat Krishna Bose v. Bisivaswar Mitra and others (A I R 1927 Cal. 04), if I may say so, besides being arbitrary, cannot be regarded as a cure all. Such an application cannot be treated as a second application when on the face of it,it is not. It is, on the face of it, an application for restoration of an application filed under Order IX. And the remedy suggested will be of help only to those persons who are lucky enough to break their legs within the period of 30 days. But, if they are late even by one day, the remedy will not be available to them. This discrimination, in my opinion, will work hard in several cases. After all an accident is an accident. It has no respect for the Limitation Act. It is perhaps on that account that Suleman, J., in his judgment in a subsequent case, A I R 1925 All. 773, held that in such a case S. 151, C. P. C. applies. The learned Judicial Commissioner of the former Baluchistan, realising the difficulty in the way of the acceptance of the decision reported in 1924 Allahabad and 1927 Calcutta, struck another via media. He held, in agreement with the above High Court, that such an application can be treated as a second application. Under Order IX, and, to get over the difficulty of complying with the proviso of limitation, he held that 'since there is no period of limitation fixed for second. application, Article 181 should apply. With all due respect for the learned Judicial Commissioner, I cannot agree with this view. It seeks to place the second application at a more advantageous position than the first. The High Court o: Lahore has also held in the case Nand Lal v. Jetha Ram (A I R 1929 Lah. 878), that such an application does lie under S. 151, C. P. C. Similar is the view of the High Court of Rangoon. It was held in the case U Be That v. U Be Thaung (A I R 1933 Rang. 406), that where an application to set aside an ex parte decree is dismissed for default, the Court has inherent powers to deal with an application to set aside the above order of dismissal, and for restoration of the previous application. In my opinion S. 151, provides the best solution. It has, been designedly framed to meet a case of this nature. Its provisions being there, there is no necessity for looking for a solution. Once the' justness of the cause is recognised, the provision of section 151 should be called in aid without any hesitation, It will be, in my opinion, just and proper that a person who has failed to appear on the date of hearing through no fault of his, should not be denied a hearing. For the reasons stated above, I hold that the order passed by the Senior Civil Judge does not call for interference. This petition, therefore, fails. The costs of the petition should be borne by the petitioner. K. M. A. Petition dismissed.