P L D 1971 Karachi 182 (PLP)

Civil Procedure Code (V of 1908), O. IX, rr. 9 & 13 read with Ss. 141 & 151-Application, to set aside dismissal of suit, itself dismissed for default-Second application under provisions of O. IX tea with S. 141, C. P. C. could be made for restoration of previously dismissed application made under same provision of law-Article 181, Limitation Act, 1908 would be applicable to such application-Limitation Act (IX of 1908), Art. 181.-[Najam Ali v. Lal Khan and 6 others P L D 1968 Kar. 59 dissented from]. An application under Order IX, rule 9, C. P. C. was itself dis missed for default. Another application under Order IX, rule 9, was made for the restoration of the first application under Order IX, rule

9. The trial Court dismissed the second application as not maintainable. In revision before the High Court on the question whether an application under Order IX, rule 9, C. P. C. lies to restore previous application and Order IX, rule 9 which previous application had itself been dismissed in default. Held : A second application may be made under the provisions of Order IX itself read with section 141, C. P. C. Judicial consensus is in favour of the view that a second application under Order IX for restoration of a previous ly dismissed application under the same provision would lie, either under Order IX itself or under section 151, C. P. C. and absence in the Limitation Act of express provision for period of limitation for such application should not stand as a bar to deprive a party of its remedy which is not expressly prohibited by the Code of Civil Procedure or by any other statute. Held further, in all such cases Article 181 would be properly applicable, as this article is a residuary article which applies to all applications for which no express provision is made in the Limitation Act. Najam Ali v. Lai Khan and 6 others P L D 1968 Kar. 59 dissented from. Muhammad Hashim Khan v. Major Fazal Ellahi Khan P L D 1959 Quetta 1 ; Ganesh Prasad v. Bhagelu Ram and others A I R 1925 All. 773 ; Nand Lai v. Jetha Ram A I R 1929 Lah. 878 ; U Be That v. U Be Thaung A I R 1933 Rang. 406 ; Muhammad Rob Nawaz v. Muhammad Sadiq P L D 1966 B J 27 ; Kirpa Singh v. Mula Singh A I R 1919 Lah. 155 ; Abdul Rehman Shah and others v. Shahana A I R 1920 Lah. 304 ; Lok Nath and others v. Mst. Sattan Bai and others A I R 1923 Lah. 302 ; Firm Piare Lal Mohan Lal v. Haider A I R 1927 Lah. 71 ; Hukam Chand v. Jo Aala Singh A I R 1927 Lah. 904 ; Jugal Kishore & Bros. v. Pensioner Subedar A I R 1934 Pesh. 13; Thakur Pershad v. Sheikh Fakirullah and another (1894) 22 I A 44 ; Sarat Krishna Bose v. Bisweswar Mitra and others A I R 1927 Cal. 534 ; Pitambar Lal v. Dodi Singh I L R 46 All. 319 ; Sarju Prasad v. Sita Ram and another I L R 10 All. 71 ; Sh. Muhammad Jamil v. Mst. Bib! To Van (1920) 63 I C 47 ; Solar Beg Saheb v. Karumanchi Kotayya A I R 1926 Mad. 654 ; Abdul Rehman Shah and others v. Shahana A I R 1920 Lah. 304 ; Mt. Jumna v. Mt. Ram Raj! A I R 1923 Oudh 146 ; S. A. Menon v. Revd. Father J. E. Lafon I L R 3 Rang. 534 ; Maha Ram and another v. Harbans A I R 1941 All. 101 ; Premomal Daomal v. Khuda Bux and others A I R 1937 Sind 273 ; Muhammad Rob Nawaz v. Muhammad Sadiq P L D 1966 B J 27 ; Narsingh Dos v. Mangal Dubey (1885) 5 All. 163 and Raja v. The State 1968 S C M R 1283 ref. Muhammad Sharif for Applicant. JUDGMENT NOORUL ARFIN, J.-This Revision Application has been referred to this Special Division Bench for the purpose of determining whether an application under Order 1X, rule 9, or under Order XI, rule 13, which is dismissed in default, can be restored, and if so under what provisions of law. In brief, the facts are these: The applicant's services were terminated by the Registrar, Co-operative Societies on 10-6-1966. The applicant filed a suit in the Court of the Senior Civil Judge, Mirpurkhas for a declaration and injunction against the termination of his services. On 23-9-1967, the suit was dismissed in default. On 21-10-1967, the applicant moved an application under Order IX, rule 9, C. P. C., but this application itself was dismissed in default on 22-1-1968. The applicant then made, on 30th January Fire1968, another application under Order IX, rule 9 read with section 151, C. P. C. for re3toration of the first application under Order IX, rule 9, C. P. C. But this application was dismissed on 29-2-1968 by a Civil Judge of Mirpurkhas on the gtound that such a second application was not maintainable. The case has been argued before us by Mr. Muhammad Sharif for the applicant and by Mr. S. Hamid Hussain for the opponent. There is considerable conflict of views on the question at issue. The three main decisions of West Pakistan are: Muhammad Hashim Khan v. Major Fazal Ellahi Khan (P L D 1959 Quetta 1), which is a Single Judge's decision in which it was held that an application to restore a previous application under Order IX, which previous application bad been dismissed in default, was maintainable under section 151, C. P. C., and accordingly the previous application under Order IX, rule 9, C. P. C. could be restored. The learned Judge, who decided this case, relied on the judgment of Suleman J., in Ganesh Prasad v. Bhagelu Ram and others (A I R 1925 All. 773) and two other decisions, one of the High Court of Lahore in Nand Lal v. Jetha Ram (A I R 1929 Lah. 878), and the other of the Rangoon High Court in U. Be That v. U. Be Thaung (A I R 1933 Rang. 406). His Lordship disagreed with the view taken by some High Courts that an application for restoration of an application under Order IX, should be treated as a second application for restoration of the suit, as, in his Lordship's opinion, the bar of limitation of thirty days may come in the way of such second applications. The next case is that of Muhammad Rab Nawaz v. Muhammad Sadiq (P L D 1966 B J 27). In this case, a learned Judge of the West Pakistan High Court held that by virtue of section 141, the provisions of Order IX, rule 9, Civil Procedure Code, will be applicable to a case where an application is made to set aside the dismissal of a previous application which had been made to set aside "ex parte" dismissal of the suit. The learned Judge relied for this opinion on Kirpa Singh v. Mula Singh (A I R 1919 Lah. 155), Abdul Rehman Shah and others v. Shahana (A I R 1920 Lah. 304), Lok Nath and others v. Mst. Sattan Bai and others (A I R 1923 Lah. 302), Firm Piare Lal Mohan Lal v. Haider (A I R 1927 Lah. 71), Hukam Chand v. Jowala Singh (A I R 1927 Lah. 904), Nand Lal v. Jetha Ram and Jugal Kishore & Brothers v, Pensioner Subedar (A I R 1934 Pesh. 13). The third case is that of Najam Ali v. Lal Khan and 6 others (P L D 1968 Kar. 59), where the view taken was that there was no specific provision in the Limitation Act with regard to the restoration of an application under Order IX, which had been dismissed in default, and the absence of such provision can be said to be a statutory indication in support of the view that the Code of Civil Procedure does not contemplate the restoration of such applications.- The learned Judge, who decided this case, further held that Order IX, of the Civil Procedure Code applies to suits only, and not to applications which have been dismissed in default. Referring to section 141, his Lordship took the view that the provisions contained therein applied to original matters in the nature of suits like "proceedings in probates and guardianships and so forth". It was further held in this case that the provisions of Article 181 of the Limitation Act also would not apply in such cases as this article would apply only if an application was maintainable under Order IX, C. P. C. His Lordship further took the view that the opinion taken in some cases that a second application for restoration of a previous application under Order IX, was maintainable in view of section 141, C. P. C., was based on an incorrect appreciation of the Privy Council decision in Thakur Pershad v. Sheikh Fakirullah and another ((1894) 22 I A 44), as explained in the Calcutta decision in Sarat Krishna Bose v. Bisweswar Mitra and others (A I R 1927 Cal. 534). Referring to the Allahabad decision in Pitamber Lal v. Dodi Singh (I L R 46 All. 319), in which it has been held that a second application was maintainable under section

151. C. P. C., his Lordship observed that this decision was an indirect disapproval of the view that the provisions of Order IX, C. P. C. are not applicable to an application for restoration of a previous application under Order IX, which had been dismissed in default.

2. The Karachi decision appears to be based on the decision of the Privy Council in Thakur Pershad v. Sheikh Fakirullah and another. Now this case was decided with reference to the provisions of the Civil Procedure Code of 1882. Section 373 of this Code, which corresponds to Order XXIII, rule 1 (3) of the Code of Civil Procedure, 1908, provided that a plaintiff is precluded from bringing a fresh suit in respect of the same subject-matter for which he has withdrawn a previous suit without the permission of the Court. Section 647 of the 1882-Code enacted that the procedure prescribed in that Code shall be followed as far as it can be made applicable in all proceedings in any Court of Civil Jurisdiction other than suits and appeals. These provisions led the Allahabad High Court to hold in Sarju Prasad v. Sita Ram and another (I L R 10 All, 71), that when a previous execution application had been withdrawn without permission of the Court, a subsequent application made by the same decree-holder was not maintainable. The Judicial Com mittee of the Privy Council, however, in the case just referred to above did not agree with this view and held that Chapter XIX of the 1882-Code, dealing with execution of decrees, was a self contained Code for execution of decrees and that section 647 did not apply to applications of this nature, as this section was intended to apply to original matters in the nature of suits, such as proceedings in probates, guardianships and so forth. The Allahabad decision had disturbed an established practice and although the Judicial Committee of the Privy Council overruled that decision subsequently, the Legislature had already brought an amendment by bringing Act VI of 1892 (so as to give legislative authority to the previously existing practice), which added an explanation to section 647 providing that the provisions of this section did not apply to applications for execution of the decrees. This explanation corresponds to rule 4, Order XXIII of the present Code.

3. The next case which has been referred to in the Karachi decision is the Calcutta judgment in Serat Kirshna Bose v. Bisweswar Mitra and others. But this case, while holding that Order IX, rule 9 and section 141, C. P. C. did not apply to a second application for restoration of previous application under Order IX, rule 9, laid down that this second application could be treated as an application for restoration of the suit itself if it was filed within the limitation period, but if the limitation period had expired, then section 151, C. P. C. could be invoked as this section applied in all cases where no remedy was provided by the Code of Civil Procedure, nor was any particular remedy prohibited by the Code.

4. The question now is, which view is correct, the one under which it has been held that Order IX read with section 141, C. P. C. permits the institution of an application under Order IX for restoration of a previously dismissed application under the same provisions, or the other view under which it has been laid down that neither Order IX, nor sec tion 141, nor section 151 of C. P. C. would apply to second applications purporting to be made under Order 1X, particularly when no period of limitation has been prescribed for such applications in the Limitation Act. We have given anxious thought to this point. We feel that the first view, in the absence of express statutory bar, should prevail. We may, in this connection, first deal with section 141, C. P. C. which reads as follows "

141. The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of Civil Jurisdiction." Now, if the suit is dismissed in default an application under Order IX, rule 9 would lie and the proceedings in such application as to taking of evidence etc., shall he regulated, by virtue of section 141, by the provisions of the Code of Civil Procedure. If the view is taken that section 141 did not permit, or apply to, a second application under Order IX for restoration of a previously dismissed application under the same provision to original civil matters in the nature of probates, guardianships and so forth, then "a fortiori" section 141 would not apply even to the first application under Order IX for restoration of a suitor for setting aside "ex parte" dismissal of a suit, in which event the provisions of the Code of Civil Procedure for taking of evidence and affidavits or otherwise or compelling attendance of witnesses or production of documents will not be available in such cases at all. The question; which may arise; is as to how an application of this nature should be decided by the civil Court ? Therefore, by necessary implication section 141 of the Code will have to be applied to the first application under Order IX, and if this can be done, we see no reason why section 141 should not apply to a second application under the provisions of Order IX. Even if the view is taken that sec tion 141 applies only to independent proceedings of a civil nature, then we have only to refer to the Patna decision in Shatkh Muhammad Jamil v. Mst. Bibi Tufailan ((1920) 63 I C 47). If the Patna view is to be accepted, then proceedings under order IX should be treated as independent civil proceedings in a Court of Civil Jurisdiction, in which case section 141, C. P. C. would apply not only to the first application under Order IX, but also to the second application made thereunder for res toration of a previously dismissed application under Order IX. Further, we are of the view that the pronouncement of the Judicial Committee of the Privy Council in Thakur Pershad v. Sheikh Fakirullah and another that section 647 of the Code of Civil Procedure, 1882, which corresponds to section 141 of the present Code, contemplates independent civil proceedings in the nature of probates etc., should be confined to execution proceed ings only. Section 141 of the present Code is applicable to all proceedings of a civil nature in any Court of Civil Jurisdiction, including applications under Order IX. Thus, it has been held in Salar Beg Saheb v. Karumanchi Kotayya (A I R 1926 Mad. 654) that the pronouncement of the Privy Council in Thakur Pershad v. Shaikh Fakirullah and another was confined to applications for execution of decrees. In the Lahore case Abdul Rahman Shah and others v. Shahana an identical view was taken and it was held that by reason of section 141 of the Code of Civil Procedure, a second application under Order IX, rule 9 was maintainable for restoration of an application, which was dismissed in default, for setting aside "ex parte" dismissal of a suit. The same view prevailed in the Oudh decision in Mt. Jamna v. Mt. Ram Raji (A I R 1923 Oudh 146) and in S. A. Menon v. Revd. Father .1. E. Lafon (I L R 3 Rang. 534). With regard to the scope of section 141, C. P. C , reference may be made to a Full Bench decision of the Allahabad High Court in the case of Maha Ram and another v. Herbans (A I R 1941 All. 101), in which it was held that section 141, C. P. C. applied to all proceedings in any Court of Civil Jurisdiction and is not restricted to original proceedings. The same view appears to have been taken in the Sind case, Premomal Daomal v. Khuda Bux and others (A I R 1937 Sind 273). The cases we have referred to above and the cases which have been discussed in Muhammad Rab Nawaz v. Muhammad Sadiq show judicial consensus in favour of the view that a second application under Order IX for restoration of a previously dismissed application under the same provision would lie, either under Order IX itself or under section 151, C. P. C. and absence in the Limitation Act of express provision for period of limitation for such applications should not stand as a bar to deprive a party of its remedy which is not expressly prohibited by the Code of Civil Procedure or by any other statute. Further, we are of the view that in all such cases Article 181 would be properly applicable, as this Article is a residuary Article which applies to all applications for which no express provision is made in the Limitation Act.

5. It is with the utmost respect, humility and reluctance that we have had to depart from the view taken in Najam Ali v. Lal Khan and 6 others and in doing so we have been influenced by the following observations of the great jurist, Mahmood, J., in Narsingh Das v. Mangal Dubey ((1885) 5 All. 163) "Courts are not to act upon the principle that every procedure is to be taken as 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 the law. As a matter of general principle prohibitions cannot be presumed." We understand Mahmood, J., to mean that there should be an express bar to refuse remedy to a party. Accordingly, con sequence of this observation would be that the silence of the Limitation Act with regard to second applications under Order IX would by itself not deprive a party of the right to apply under Order IX for restoration of a previously instituted application under this provision which, however, was dismissed in default. We may also refer to some other decisions in Pitamber Lal v. Dodi Singh (which was followed by A I R 1925 All. 773 referred to above) in which the view was taken that second application for restoration of a previously dismissed application in default under Order IX would lie under sec tion 151, C. P. C. It may be noted that in both these cases the provision of section 141, C. P. C. was not considered. Lastly, we would refer to the decision of their Lordships of the Supreme Court in Raja v. The State (1968 S C M R 1283) in which their Lordships allowed an execution application dismissed in default to be restored under section 151, C. P. C. Thus, on the question at issue before us there are two views which have been taken by the High Courts. One view is that if an application under Order IX, rule 9 for setting aside "ex parte" dismissal of a suit is itself dismissed in default, then the aggrieved party may invoke the Court's jurisdiction under section 151, C. P. C. for restoration of such application. The other view is that such second application lies under the very provision of Order IX read with section 141, C. P. C. We may also refer to one contention of Mr. Hamid Hussain, which is to the effect that Order XLIII, rule 1(c) and (d) provides for appeals against orders under Order IX, rule 9 and Order IX, rule 13, C. P. C. But there is no provision for orders on an application which is made for restoration of an application made for setting aside "ex parte" dismissal of suit, which application is, however, dismissed in default. However, we see no difficulty in this point. If a second application lies under order IX, then perhaps Order XLIII, rule 1(c) and (d) would apply. If such an application lies under section 141, C. P. C., then the jurisdiction of the superior Courts under section 115 of the Code can be invoked. We have said that there are two views on the subject under discussion before us. We are, however, inclined to agree with the view that a second application may be made under the provisions of Order IX~ f itself read with section 141, C. P. C., and we have come to thist conclusion on account of the weighty observations of Mahmood, J., and Suleman, J., referred to above. We, therefore, hold that the Courts of first instance erred in dismissing the applicant's second application under Order IX for restoration of a previously dismissed application which had been filed under the same provision for setting aside the "ex parte" dismissal of suit. In view of this conclusion, we accept the Revision Application and remand the case to the lower Court for decision of the application in question on its merits. K. B. A. Petition accepted.