This revision petition raises two questions of law, firstly, whether substitution of the deceased plaintiff by his legal representatives, in a revision from an interlocutory order enures for the benefit of the suit as well and saves it from abatement and, secondly, whether an, application lies for restoration of an application under Order XLI, rule 19, C. P. C., dismissed in default.
2. The facts upon which these propositions of law have emerged are ; that one Mian Inayatullah filed a pre-emption suit against the petitioner and Mst. Kishwar Khurshid. On his death, one of his daughters, namely Zohra Begum got herself impleaded as a plaintiff whereas his other heirs were arrayed as defendant. The suit was decreed in her favour on 29-3-1963, subject to the payment of Rs. 55,000 in the Court within three months. Instead of complying with the terms of the decree, she, however, challenged the quantum of the sale price through an appeal but the learned Additional District Judge who was seized of. The matter, by his order dated 30-3-1964, did not entertain the appeal on the ground that its value was beyond his pecuniary jurisdiction. She, thereupon invoked the revisional jurisdiction of this Court, but expired during the pendency of this revision petition and on the move of her legal representative who have been arrayed as respondents I(i) to 1(iv) in this revision petition, they were allowed by the Deputy Registrar of this Court, by his order dated 16-2- 1970 to be impleaded as a party. Somehow-or-other, the title of the revision petition was not amended with the result that instead of her legal representatives, the deceased's name continued to appear as a party.
3. This revision petition was accepted by a learned Single Judge of this Court under his order dated 10-7-1972 and a direction given that the appeal be sent back to the learned District Judge for disposal. After receipt of the record of the case by the appellate Court, the learned Additional District Judge, to whom the appeal was assigned, issued notice to the parties and their counsel for 2-9-1972. The. Petitioner entered appearance in the court on this date but as regards Mst. Zohra Begum, appellant, the process server's report was that she had died. The learned Additional District Judge adjourned the case to 18-10-1972, and ordered that fresh notice be issued to her as well as to her counsel and further directed that the process server should also report the exact date of her death. When the case came up for hearing before, the learned Additional District Judge on this date, he .Found that Mst. Zohra Begum had died but neither any one appeared on her behalf nor her legal representatives were impleaded as a party. He, therefore, by his order dated 18-10-1972, dismissed the appeal for non-prosecution,.
4. An application for restoration of the appeal was filed by the legal representatives of the deceased on 20-10-1972. This application was, however, dismissed in default on 12-1-1973. They then moved another application on 30-1-1973 for restoration of this application. Both these applications were heard together and accepted by the learned Additional District Judge by means of his order dated 19-1-1974 impugned through this revision petition.
5. The cause shown by the respondents for their non-appearance on 12-1-1473, was that their counsel failed to note this date in his diary and filed his affidavit to support this plea. The learned Additional District Judge accepted their explanation and considered this reason sufficient for restoration of the first application. He was of the view that the omission to correct the title of the suit, substituting Zohra Begum, deceased, by her legal representatives in pursuance of the order of substitution passed in revision, resulting from act of the Court, did not justify a punitive action against the respondents and the petitioner could not take advantage of such an omission. He was also impressed by the fact that his predecessor who passed the order dated 18-10-1972, was not even aware of the order of substitution and thus did not issue any notice to the respondents for prosecution of the appeal. It was for these reasons that the application for readmission of the appeal was also allowed by the learned Additional District Judge.
6. The first submission of the petitioners' learned counsel was that a revision like an appeal is that the continuation of the original proceedings, and therefore, the Deputy Registrar's order dated 16- 2-1970, could not be deemed to have been passed in the suit ; and thus it was incumbent upon the respondents to have applied -to the trial Court under Order XXII, rule 3, C. P. C., to be brought on the record.
7. In reply to these arguments on behalf of the respondents, their learned counsel contended that where the legal representatives of the deceased party have already been impleaded as a party before a superior Court in a . Connected matter a fresh application in this behalf in the original Court is not necessary and heavily relied on Brij Inder Singh v. Lala Kdrishi Ram (AIR1917PC154) and Ghulam Abbas v. Hashim and others (1969SCMR257).
8. I find lot of force in the submissions of the respondents' learned counsel. In fact, this controversy has since long been determined by the precedents of the highest order referred to by the respondents' learned counsel. In Brij Inder Singh's case, the deceased plaintiff was substituted by his son and the heirs of one of the defendants were also impleaded as a party, before the Chief Court, when a revision against the District Judge's interlocutory order was pending before it. The objection raised on behalf of the defendants that 'the suit had abated was repelled by the Privy Council and it was maintained that "The plaintiff as representative of the original plaintiff, and the defendant's representatives of Joti Lal, had been 'introduced in the Chief Court. No doubt that was only done in the course of an interlocutory application as to the production of books. But the introduction of a plaintiff or a defendant for one stage of a suit. Is an introduction for all stages." `substitution even in an appeal from an interlocutory application would be a sufficient substitution for the purposes of the suit as well anti no fresh application to bring the legal representative of the deceased party on the record of the suit would be necessary."
Both these judgments were followed in Zakira Begum etc. v. Aziz Ahmad etc. (NLR 1979 Civil (Lah.)
861), by a learned Single Judge of this Court, and substitution of a deceased plaintiff by his legal representatives at the revisional stage before the High Court, was treated sufficient for the purposes of the suit as well. These precedents fully support the arguments of the ,learned counsel.
The objection of thepetitioner's counsel in this respect is overruled
9. It was next argued that the application filed by the respondent on 3()-1-1973 for restoration of the application for readmission of the appeal, which bad been dismissed in default was not maintainable.. The -learned counsel endeavoured to draw a distinction between an application filed under Order IX, rule 9 C. P. C. And the ore under Order XLI, rule 19 and urged that neither the provisions of section 5 of the Limitation Act, nor that of section 141, C. P. C. Could be extended to the latter application. The argument was that an application for restoration of the application under Order IX, rule 9, dismissed" in default is competent under section 141, C. P. C. But no such ptovision in C. P. C. Or principle of law can be invoked to maintain application for restoration of an application for re-admission. Of the appeal.
10. It is correct that there is no express provision in the C. P. C. Fort entertaining such an application and the provisions of section 141, C. P. C. Apply only to the proceedings in the nature of a suit. This however, would not permit the Courts to presume a vacuum in law and feel .Helpless to pass and order to secure the ends of justice, merely because there is no express provision in the Code applicable to the case. In such like cases, when. The C. P. C. Neither provides nor prohibits a remedy, resort can be made to the inherent powers of the Court under section 151, C. P. C. I may refer here with advantage to the classic observation of Mahmood, J. In Narsing Das v. Mangal Dubey ((1882) 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 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."
' These observations were construed by a Division Bench of the Karachi High Court in Ahmad A.I v.
Registrar Co-operative Societies (P L D1971 Kar. 182 .), to mean that there should be express bar to refuse a remedy to a party. The second application can thus be sustained under section 151, C. P. C.
It is to be seen that the second application was filed within 18 days of the dismissal of the first one.
An application for restoration of the application dismissed in default would be governed by Article 181 of the Limitation Act which is residuary article
11. The confusion in this case in a large measure was created by the failure of the High Court Officer to amend the title of the revision petition. Had the title been corrected notice would have been issued to the successors in-interest of Mst. Zohra Begum. On the authority of Muhammad Swakh v.
United Grain and Fodder; Agencies (PLD 1964 SC 97), it can safely be concluded that the' proceedings conducted against the respondent without serving them were patently void
12. The learned Additional, District Judge's reliance on the rule that 4 party cannot be deprived of its rights, if such deprivation is due to the act o the Court, is well-grounded. In Lakan.Chundar Sen v.
Madhusudan Sen (ILR 35 Cal. 209) Macle4a, C. J., maintained,: "In this connection the language of Lord Eldon in Pultency v. Warrant has sonic application : - If there be a principle, upon which Courts of justice ought to act without scruple, it is this, to relieve parties against that injustice occasioned by its own acts or oversight at the instance of the party, against the relief is sought. That: proposition is broadly 'laid' down in some of the cases ; This view was approved by the House of Lords-'in the East India Company v. Campion."
As held by Kaikaus J., in Nijabat v. Noor Ahistad (PLD 1957 Lah. 92 .) an act of the Court would include an act of the officer or agent of the-Court.
13. - The learned counsel for the petitioner then half-heartedly argued that the suit was decreed in favour of the respondents' predecessor-in-interest in the year, 1963, -but neither she nor the respondents deposited. Even a penny in the Court and in the meanwhile price of the land in dispute, has increased tremendously ; there was no equity in favour of the respondents to justify ; grant of relief to them.
14. This argument hardly merits any serious consideration. The delay in the decision of the case is really unfortunate but neither this delay nor equity, can be employed as a vehicle to. Deny, the ,respondents,, the fruit of the order lawfully passed in their favour by the appellate Court. The learned Additional District Judge in readmitting the appeal has acted in exercise of this judicial discretion to which no exception can be taken
15. For the aforesaid reasons this revision petition, having been found without merits, is dismissed with costs.