Find a Lawyer

First Appeal From Order No. 20 of 1956, decided on 4th December 1956 against order of Zia Ullah Khan, Senior Civil Judge, Lahore, dated the 9th April 1956.

-----, O. IX. r. 9 Application by one of 2 plaintiffs for restoration of suit instituted under S. 92, Civil P. C.‑Competent‑Civil Procedure Code (V of 1908), Ss. 92 & 141.

Once a suit under section 92, Civil P. C. has been properly instituted, in all matters that subsequently arise, the provisions of the Civil Procedure Code are applicable as they would be to suits in general. In the case of a dismissal for default, it cannot be contended that an application for restoration cannot be put in by one of the plaintiffs, alone.

The argument that a suit under section 92, Civil P. C. is to be instituted jointly by all the persons allowed to sue under that section and that, therefore, an application for restoration of such a suit dismissed in default would, by virtue of section 141, Civil P. C. be competent only if it was made by all the plaintiffs jointly, was not tenable inasmuch as, if sec tion 141, was to be applied only mutatis mutandis, an applica tion, for restoration by one plaintiff alone in an ordinary suit, being competent, an application by all plaintiffs was not necessary in a suit under section 92, Civil P. C.

O. IX, r. 9 ---"Sufficient cause"‑Misapprehension about date.

The plaintiff's misapprehending the 23rd of August (which was the real dare) as the 22nd of that month and thus making default in "appearance, was held to be "sufficient cause" for non‑appearance within meaning of Order IX, rule 9, Civil P. C.

Fazl‑e‑Ghani for Appellants.

Ghias Muhammad for Respondent.

Dates of hearing : 19th November 1956 and 4th December 1956.

Maulvi 'Abdul Qasim and Maulvi Jan Muhammad filed a suit under section 92, Civil P. C., against Haji Abdul Razzaq for the removal of the defendant who is a Mutwalli of a certain waqf and for the appointment of a new Mutwalli. Evidence had been partly recorded and the case had been fixed for the remaining evidence of the plaintiffs for the 23rd of August 1955. On this date, nobody appeared for the plaintiffs when the suit was called and it was dismissed for default under Order IX, rule 8, Civil P. C., an application was put in the same day on behalf of Maulvi Abdul Qasim by his counsel, Sayyed Muhammad Anwar. It was stated in the application that Syed Muhammad Anwar had remained in the Court of Khan Zia Ullah Khan (where the suit was pending' till 8‑30 when he was called by another client and that when lie returned to that Court at 10‑35 a.m. he found that the suit had already been dismissed for default. In support of the application, Sayyed Muhammad Anwar made a statement and MauM Abdul Qasim also examined himself as a witness. Maulv: Abdul Qasim stated that he had failed to appear on the 23rd of August 1955, on account of a mistaken impression as to the day of the month. He stated that he was under the impression that that day was only the 22nd of August whereas it was actually the 23rd August, and it was when he came to Court on the 24th considering it to be the 23rd August that he realised his mistake.

The application for restoration has been dismissed by the learned Senior Civil judge on the following grounds:‑--

(1) That the application for restoration of the suit had been put in only on behalf of one of the two plaintiffs, i.e., Maulvi Abdul Qasim, and that, as in law the two plaintiffs who filed the suit under section 92, Civil P. C., are to be considered as one, there was no proper application before the Court for adjudication.

(2) That there was no sufficient cause.

This is an appeal by Maulvi Abdul Qasim and Maulvi Jan Muhammad against the order of dismissal.

It appears to me that the order of the learned Senior Civil Judge should not be supported on either of the two grounds. As regards the first ground, Muhammad Ishaq and others v. Muhammad Hussain Khan and others (A I R 1927 Lah. 382) had been cited before the learned Senior Civil judge in support of the contention that in suits under section 92, Civil P. C., all persons authorised to institute a suit legally constitute one plaintiff. In that case, no doubt, this proposition has been laid down, but unfortunately, the attention of the learned Senior Civil judge was not drawn to the judgment of their Lordships of the Privy Council in Mst. Ali Begum and others v. Badr‑ul- Islam Ali Khan and others (A I R 1938 P C 184). In that judgment their Lordships held that, while, if sanction had been granted to three plaintiffs two of them could not institute a suit, the subsequent course of a validly instituted suit is subject to all the incidents of suits in general. In that case, the suit had been instituted by three plaintiffs and an appeal had been filed by two plaintiffs only, and it had been held by one of the judges of the High Court of Judicature at Lahore, who decided the appeal that the appeal was incompetent on the ground that it could only have been filed by all the plaintiffs to whom sanction had been given by the Advocate General for they together constituted one plaintiff. Their Lordships of the Privy Council disagreed with this enuncia tion of the law saying: "Their Lordships cannot accept the doctrine of Jai Lal J., in the present case that the persons who have instituted the suit with the leave of the Collector are to be deemed to be one plaintiff, nor do they see any reason why one of several plaintiffs in such a suit should not appeal on the same terms and conditions as are applicable to suits in general."

It is true that the case before their Lordships of the Privy Council was one in which an appeal had been filed by some of the plaintiffs and the case before me is that of an application for restoration of a suit, but the principle laid down by their Lordships is fully applicable to the present case. It is only on the ground that all plaintiffs are jointly to be deemed as one that the application could have been incom petent in this case, and that principle has been rejected by their Lordships. Once a suit under section 92, Civil P. C. has been properly instituted, in all matters that subsequently arise, the provisions of the Civil P. C. are applicable as they would be to suits in general. In the case of a dismissal for default, it cannot be contended that an application for restora tion cannot be put in by one of the plaintiffs alone, and, therefore, an application by Maulvi Abdul Qasim alone would be competent in this case.

Learned counsel for the respondent urges that by virtue of section 141, Civil P. C., the same procedure is to be followed in all original proceedings mutatis mutandis as it is followed in suits, and, therefore, the case of the institution of an application for restoration is to be governed by the same terms and conditions as the institution of a suit. Learned Counsel has relied upon some cases which lay down that a proceeding, under Order IX, rule 9, is an original proceeding within the meaning of section 141. In the first place, it is only the procedure which applies by virtue of section 141, not the conditions precedent to institution. Secondly, assuming without conceding that a proceeding under Order IX, rule 9 is an original proceeding within the meaning of section 141, it will be observed that the Civil P. C, in spite of that section, enables one plaintiff alone to file an application for restora tion. If we are to apply section 141 only mutatis mutandis, we cannot, in view of the competency of an application for restoration by one plaintiff alone in an ordinary suit, insist that by virtue of the provisions of section 141 an application by ally plaintiffs becomes necessary in a case like the present.

As regards sufficient cause, the point to be considered is this. Maulvi Abdul Qasim has made a statement that he had made a mistake about the date. In this he is corroborated by Sayyed Muhammad Anwar, who says that on the 24th of August 1955, Maulvi Abdul Qasim had come to him and said that he had mistaken the 24th to be the 23rd. There is no reason why we should not accept this evidence. If really a mistake had been made it is only Maulvi Abdul Qasim who knew it and who would be able to give direct, evidence about it. There is also the corroboration of Sayyed Muhammad Anwar. It cannot be said that with the exercise of due care C he could have avoided a mistake of this character. I hold, therefore, that there was sufficient cause for non‑appearance.

This appeal is accepted and the suit is restored. The case will now go back to the learned Senior Civil judge for trial on the merits.

A. H. Appeal accepted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.