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Civil Revision No. 25 of 1953 decided on 5th April, 1954 against the order of Senior Sub‑Judge, Bahawalpur, dated the 2nd August, 1953.

O. IX, r. 8‑Dismissal for default‑Remedy against dismissal only by application under r. 9 and not by Review (O. XLVII, r. 1) or by an application under S. 151, C. P. C.

Application under O IX, r. 9 was time‑barred. Plaintiff applied for restoration under O. XLVII, r. 1 and S. 151, C. P. C.

Held, the mere detention of the plaintiff's Mukhtar in jail does not legally bring his case within the ambit of suffi cient reason falling in r. 1 of O. XLVII. It was not in the form of a new matter for the Court, nor the order of dismissal passed by it disclosed any such error or mistake on the face of the record which might justify the review thereof. The only remedy open to the plaintiff was that an application should have been made under O. IX, r. 9, C. P. C. against the order of dismissal of the suit within 30 days of the order, and the Court is not empowered to allow the suits which are time‑barred to be restored on the review application.

Section 151, C. P. C., does not apply where other remedies are available in law.

‑This civil revision petition has arisen in the following circumstances :‑

Mst. Ghulam Fatima respondent sued the petitioner in respect of some agricultural land in Mauza Kilanchwala on 24th November, 1951. On 11th May, 1952, the defendants had to file their written statements, but the plaintiff and her husband and Mukhtar both failed to appear and the suit was consequently dismissed for default under order IX, rule 8 C. P. C. Plaintiffs Mukhtar Sheikh Abdul Rahman made an application for review of the order on 26th June 1952 on the ground that on the date of dismissal he had peen under police custody at Bahawalnagar and could not attend the Court. The Sub‑Judge held that the absence of the plaintiff's Mukhtar was not intentional and taking this as a sufficient reason he accepted the application for review and restored the suit.

Against this order of restoration the petitioner Mst. Allah Rakhi preferred a miscellaneous appeal under O. XLIII, r. 1, C. P. C., in the Court of the Senior Sub‑Judge at Bahawalpur. After hearing the arguments of the parties the Senior Sub‑Judge held that the appeal was incompetent as it was not made on any of the grounds a, b or c mentioned in r. 7 of O. XLVII C. P. C. The petitioner has now come in revision to this Court against the order of the Senior Sub- Judge granting the review application of the respondent and setting aside the order of dismissal of the suit in default. I have heard Mr. Mustafa Khan for the petitioner and have also gone through the written arguments of Sheikh Abdul Rahman Mukhtar of the respondent. The main contention of the learned counsel is that a review application does not lie against an order of dismissal for default passed under O. IX, r. 8, C. P. C. He has also referred me to a string of authorities bearing on the point. The application for review appears to have been made under O. XLVII, r. 1, C. P. C. According to the provisions of that rule the three cases in which alone a review is permitted are those of new material, mistake or error apparent on the face of the record or 'any other sufficient reason'. Now the order granting the review is evidently based on the third alternative. The learned Sub -Judge appear to have considered the arrest of the Mukhtar of the respondent as a sufficient reason within the meaning of O. XLVII, r. X for his failure to prosecute his case. I am unable to agree with the learned Sub‑Judge that the expres sion sufficient reason' is properly applicable to the facts of this case. The leading authority on the subject is the Privy Council case Chhajoo Ram v. Nekee (AIR 1922 PC 112), in which Their Lordships discussed the provisions of O. LXVII, r. 1 and interpreted 'sufficient reason' occurring therein as meaning a sufficient ground of kind analogous to the two already specified that is to say excusable failure to bring to the notice of the Court any new and important matter or error on the face of the record.

In the face of the above interpretation by Their Lordships of the Privy Council it is quite obvious that the alleged cause of non‑appearance can in no case form a valid ground for review. The principle of law as enunciated in the Privy Council ruling was subsequently followed in a large number of cases by the various High Courts. In A I R 1944 Mad. 293 it was held by a Division Bench of that Court that in view of the limited scope of O. XLVII, r. 1. C. P. C., the absence of counsel or of a party is not a ground for review. This decision was based on several previous rulings of that Court reported as A I R 1926 Mad. 980, A I R 1927 Mad. 355 and A I R 1928 Mad. 964.

Again in A I R 1943 Sind 132 an appeal had been dismissed under O. XLI, r. 18 C. P. C. and the appellant had failed to get it re‑admitted within the statutory period of 30 days as required by Art. 168 Limitation Act. The application for setting aside the order of dismissal was made after the limitation period had expired and the learned counsel for the appellant relied primarily upon the inherent powers of the Court under section 151 C. P. C., and in the alternative upon O. XLVII, C. P. C., by treating the application as that for review of the order. The learned judges in that case exploded away both the contentions of the appellant. With regard to the inherent powers of the Court to extend the period of limitation in a hard case like the one before them they observed :‑

"There is no general discretion given to the Court to waive the period of limitation, or to extend it in hard cases. Section 5, Limitation Act, does provide for extension in certain cases, but this section only applies to appeals or applications to which this section has been made speci fically applicable ; it does not apply to applications under O. XLI, r. 19, C. P. C., for which it has not been specifically made to apply:

The provisions of O. XLI, r. 18 C. P. C., read with Art. 168, Limitation Act, are exhaustive. There is therefore no inherent power remaining to the High Court ex debito justitiae to allow appeals which are time‑barred, or to set aside an order dismissing an appeal under O. XLI, r. 18 C. P. C."

Commenting on the second point the learned Judges held that the provisions of O. XLVII are very limited indeed and cannot be applied to give a right to a party, where such a right is even by implication necessarily barred by the provisions of Limitation Act In the end the learned Judges held that they cannot exercise properly the 'powers conferred upon them under section 151 or O. XLVII C. P. C. ton redress the grievance or alleged grievance of the appellant.

Now applying the principle of law propounded in the above case to the facts of the present case, I see that the period of 30 days within which the respondent's Mukhtar could apply for the restoration of her suit under Article 163 Limitation Act had long expired and consequently he invoked the assistance of O. XLVII, r. 1 for review of the order of dismissal, which he could not legally do as his object was simply to evade the specific provisions of the Limitation Act. In fact the Court has no discretion to waive the period of limitation or to extend it when a clear remedy for setting aside an order of dismissal for default has been explicitly provided in the form of an application under O. IX, r. 9 for which a period of 30 days has been fixed for setting aside the order under Art. 163 Limitation Act.

This proposition of law was also discussed in A I R 1935 Oudh 405 and A I R 1934 Cal. 116, In the former case it was held that the phrase any other sufficient reason‑ means any other sufficient cause similar or analogous to those categorically, set forth in O. XLVII, r. 1. This a review is only permissible on the first two grounds mentioned in the rule or on ground, similar or analogous to them and therefore no review lies; against an order dismissing a suit for default. The same principle was laid down in the above cited Calcutta case in which it was held that the proper procedure for setting aside an order under O. XVII, r. 2 C. P. C., is by an application under O. IX and not by a review application under O. XLVII.

As already stated, the mere detention of the respondent's Mukhtar in jail does not legally bring his case within the ambit of 'sufficient reason falling in r. 1 of O. XLVII. It was not in the form of a new matter for the Court, nor the order of dismissal passed by it disclosed any such error or mistake on the face of the record which might justify the review thereof. The only remedy open to the respondent and his Mukhtar Sheikh Abdul Rahman was that an application should have been made under O. IX, r. 9 C. P. C. against the order of dismissal of the suit within 30 days of the order, and the Court is not empowered to allow the suits which are time‑barred to be restored on the review application. The excuse of the respondent's Mukhtar that he was at that time in jail is of no avail, as nothing could prevent him to arrange for a legal representative on his behalf to represent him in the Court proceedings. A man in Jail has got full powers and there is nothing to prevent him from giving necessary instructions to his legal adviser with regard to his litigation. I therefore hold that the review application filed by him was altogether incompetent and should have been rejected by the trial Court.

In para. 5 of his written arguments Sheikh Abdul Rahman has also adopted an alternative position and says that the trial Court could as well set aside the order of dismissal in exercise of its inherent powers under section 151 C. P. C. I have already discussed this point and have referred to A I R 1943 Sind 132 in support of the proposition that the Court has no power to extend the period of limitation under section 151 C. P. C., for restoration of a suit dismissed in default. This question was also dealt with in various other authorities. In P L D 1953 Dacca 133 it was laid down as an established principle of law that section 151 C P. C. does not apply where other remedies are available in law. Similarly it was laid down in A I R 1948 Mad. 680 that Court has no inherent jurisdiction to extend time under section 5, Limitation Act for an application under O. IX, r. 9 to set aside an order of dismissal for default (See also A I R 1944 Mad. 293). I there fore overrule this contention of Sheikh Abdul Rahman as void of any legal force.

One more contention of Sheikh Abdul Rahman is that the petitioner is guilty of laches in bringing this revision petition against the review order of the trial Court after a considerable delay and that the Court should refuse to interfere with the order. This argument also does not prevail in the face of circumstances which satisfactorily explain this delay. The review petition was granted by the Sub‑Judge on 14th January 1953 against which the petitioner filed an appeal in the Court of the Senior Sub‑Judge but it was held incompetent by that Court on 2nd August 1953 after which this revision was filed on 1st October 1953. These circumstances are suffi cient to explain the delay in applying for revision (See in this connection A I R 1929 Oudh 383).

For the foregoing reasons I accept this petition of revision and set aside the order of the learned Senior Sub‑Judge of Bahawalpur granting the review application of the respondent as being incompetent. Consequently her suit shall stand dismissed. The parties to bear their own costs in this Court.

A. H. Petition accepted.

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