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-- O. IX, Rr. 3 & 4 -Dismissal of suit/application in default Remedy-Where a suit is dismissed in default, plaintiff, held, could either make an application for restoration of suit or file a fresh suit Where a miscellaneous application was dismissed for want of prosecution, affected person could seek either restoration thereof or file a fresh petition.

British India Navigation Company and another v. National Security Insurance Company Ltd. 1985 C L C 1799 ; 1981 S C M R 940 and Municipal Committee, Jhelum v. Maulvi Muhammad Shafi 1971 S C M R 740 ref.

--- S. 115 & O. IX, Rr. 3 & 4-First civil revision dismissed for non-prosecution - Application for restoration of such revision also dismissed-Fresh revision whether competent-Where a petition for restoration of civil revision was dismissed, a fresh revision, held, could be filed within ninety days of the passing of the order sought to be revised-If filing of second revision was delayed beyond ninety days, it would not be open to petitioner to justify such delay on ground that he had filed a revision earlier which was dismissed for want of prosecution and restoration thereof was also refused.

S. 115 & O. IX, Rr. 3 & 4-Limitation Act (IX of 1908), S. 14Revision, filing of-Limitation-Time spent by petitioner in regard to former revision and petition for restoration thereof, held, could not be made use of for getting over difficulty of delay-Long delay in filing fresh revision having not been explained, same, held, could not be entertained in view of dictum in P L D 1975 S C 678.

Govind Prasad v. Har Kishen and others A I R 1929 All. 131 ; Daya Shankar and another v. Raj Kumar A I R 1917 Oudh 62 ; Tulshi Singh and another v. Sheosaran Rai and others A I R 1926 All. 678 ; Bhudeo v. Muhammad Baikunthi 63 I C 239 ; Atta Muhammad v. Rehmat Ali and others P L D 1967 Lah. 372 ; Chintaman v. Kisan and another A I R 1929 Nag. 219 and Manager, Jammu & Kashmir, State Property in Pakistan v. Khuda Yar and another P L D 1975 S C 678 ref.

Sh. Khalibur-Rehtnan for Petitioners.

Ashiq Hussain Malik for Respondents.

Before filing this civil revision, the petitioners filed Civil Revision No. 1057 of 1984 to challenge the order assailed herein. Civil Revision No. 1057 of 1984 was dismissed, on 28th November, 1984, for want of prosecution. On the next day, the petitioners made a petition (C. M. No. 5492-C of 1984) for restoration of the said civil revision but that petition was dismissed on 2nd December, 1984 on merits. Thereafter, the present civil revision was filed. When it came up before me, 1 asked learned counsel for the petitioners if it was maintainable despite the fact that the petitioners' application for restoration of the earlier civil revision was dismissed on merits. His reply was in the affirmative. He did not cite any authority to support his submission in this behalf. Since question relating to the competency of this civil revision was an important one, I thought of hearing the other side at pre-admission stage. The respondents were, therefore, summoned. View expressed by learned counsel for the respondents was that the instant petition would have been competent if the petitioners had not sought restoration of their earlier civil revision without success. It was also urged by him that the present revision petition suffered from the defect of laches and could, therefore, not be entertained. It was, however, maintained by learned counsel for the petitioners that this civil revision could be filed by the petitioners despite their failure to have their earlier civil revision restored. He cited British India Navigation Company and another v. National Security Insurance Company Ltd. (1) to support his argument.

2. In the case of British India Navigation Company and another, relied upon by learned counsel for the petitioners, it was observed by a learned Judge of the Sind High Court that after the dismissal of a civil revision in default, another civil revision could be filed. In this connection, reference was made by him to 1981 S C M R 940. Judgment relevant to the point in issue is, however, not at page 940 of the above report relating to the Supreme Court cases. Learned counsel for the parties were unanimoue, that the judgment of the Supreme Court which was in the mind of the learned Single Judge was Municipal Committee, Jhelum v. Maulvi MuhammaYl Shafi (2). In the case of Municipal Committee, Jhelum, temporary injunction was issued by the trial Court but it was vacated by the appellate Court, in appeal. Order of the learned appellate Court was challenged before the High Court in civil revision. On this, ad interim injunction was issued by the High Court. Petitioner in the civil revision (respondent before the Supreme Court) however, did not deposit process fee for notice to the respondent in the civil revision (petitioner before the Supreme Court) and also failed to enter appearance on the date fixed before the Registrar of the High Court. Ad interim stay order was, therefore, re-called by the High Court. Thereafter, he submitted another petition for grant of temporary injunction whereupon such injunction was granted by the High Court. Order passed in this behalf was challenged before the Supreme Court on the ground that the second petition for temporary injunction was barred by res judicata. This plea did not find favour with the Supreme Court. Observations of the Supreme Court in this regard read as follows :

( 1) 1985 C I, C 1799 (2) 1971 S C M R 740

"In this petition for special leave to appeal, the learned counsel for the petitioner has challenged the legality and the propriety of the learned Single Judge on several grounds. The first is that the second application for a temporary injunction was incompetent after the dismissal of the first being barred by principle of res judicata and, alternatively, that if the second application is to be treated as one for the restoration of the first, it was barred by time. The first application was dismissed not on merits but on account of the default of the respondent to deposit the process fee for service of the petitioner, and, therefore, no question arises of the applicability of the rule of res judicata or its principles. For his alternative submission, the learned counsel for the petitioner relied on the provisions of rule 19 of Order XLI, C. P. C., which relate to restoration of appeals dismissed for non-prosecution. The contention of the learned counsel was that this provision will also apply to revision application under section 144, C. P. C., as there is no special procedure laid down in the Code for the revision petitions. It was submitted by him that the application for restoration of an appeal under Order XLI, rule 19, . C. P. C. has to be made within 30 days of dismissal order, as provided by Article 168 of the Limitation Act. A reference to section 144 of the Code of Civil Procedure, which has been relied upon by the learned counsel, however, shows that if it is to be applied to the revision applications, the procedure provided in the Code in regard to suits shall be followed as far as it can be made applicable to the revision petitions. Order IX, rules 3 and 4 of the Code, which will be attracted to the situation, would permit the institution of a fresh application as well as for the application for setting aside the dismissal order, leaving it to the plaintiff-petitioner to choose his remedy. We are of the view that there was no legal hurdle in the way of the petitioner to renew his application for a temporary injunction in the High Court in spite of the dismissal of the first for non-prosecution."

The case of Municipal Committee, Jhelum, does not directly deal with the question involved in the instant case. One thing, however, is clear therefrom that in view of the provisions of rules 3 and 4 of Order IX of the Code of Civil Procedure just as a plaintiff whose suit is dismissed in default can either make an application for restoration of the suit or file a fresh suit, a person whose miscellaneous petition is dismissed for want of prosecution can either seek its restoration or make a fresh petition. I t has, however, not been laid down in the said case that if a petition dismissed in default is not restored, a fresh petition would not be competent.

3. It has been held in Govind Prasad v. Har Kishen and others (1), Daya Shankar and another v. Raj Kumar (2), Tulshi Singh and another v. Sheosaran Rai and others (3) and Bhudeo v. Muhammad Baikunthi (4) that even if an application for restoration of a suit is dismissed under rule 3, a fresh suit on the same cause of action is maintainable under rule 4. Similar view was expressed in Atta Muhammad v. Rehmat Ali and others (5) in respect of a writ petition. It has, however, been ruled in Chintaman v. Kisan and another (6) that in such cases period covered by restoration proceedings cannot be excluded under section 14 of the Limitation Act, 1908 while computing limitation for suit brought under Order IX, rule 4, of the Code of Civil Procedure.

4. No period of limitation has been prescribed for filing a revision petition. It has, however, been laid down in Manager, Jammu & Kashmir, State Property in Pakistan v. Khuda Yar and another (7) that a civil revision should ordinarily be filed in the High Court within 90 days and if it is filed thereafter, it should not be entertained unless the Court is satisfied as to the reasons for delay. In view of the above quoted case-law relating to different proceedings, I hold that if petition for restoration of a civil, revision is dismissed, a fresh civil revision can be filed within 90 days of the passing of the order sought to be revised. However, if the filing of the second civil revision is delatyed beyond 90 days, it will not be open to the petitioner to justify such delay on the ground that he had filed a civil revision earlier but the same was dismissed for want of prosecution and its restoration was also refused.

5. As regards the second civil revision under consideration, it was filed after about 1f years of the passing of the impugned order. There is no explanation for this long delay except that previously the petitioners filed another civil revision against the said order but it was dismissed in default and petition 'for restoration thereof also did not meet with success. In view of pronouncement made in the case of Chintaman, time spent by the petitioners in regard to the former civil revision and the petition for restoration thereof cannot be made use of by the petitioners for getting over the difficulty of delay. Orders passed. by this Court on their earlier civil revision and on the application for restoration thereof indicate that they were negligent in prosecuting the' civil revision. They cannot take advantage of their own wrong. Since a lung delay of above 1 -1 years in filing this civil revision has not been adequately explained, it cannot be entertained in view of dictum in the' case of Manager, Jammu & Kashmir, State Property in Pakistan and is, accordingly, dismissed in limine.

A. A./678/L Revision dismissed.

(1) A I R 1929 All. 131 (2) A I R 1917 Oudh 62

(3) A I R 1926 All. 678 (4) 63 1 C 239

(5) P L D 1967 Lah. 372 (6) A I R 1929 Nag. 219

(7) P L D 1975 S C 978

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