NOORUL ARFIN, J.--This Revision Application has been referred to this Special Division Bench for the purpose of determining whether an application under Order IX, 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 1968, another application under Order IX, rule 9 read with section 151, C. P. C. for restoration 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 ground 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 , 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 had 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 and two other decisions, one of the High Court of Lahore in Nand Lal v. Jetha Ram , and the other of the Rangoon High Court in U. Be1 2 3 That v. U. Be Thaung . 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 . 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 , Abdul Rehman Shah and others v. Shahana , Lok Nath and others v.
Mst. Sattan Bai and others , Firm Piare Lal Mohan Lal v. Haider , Hukam Chand v. Jowala Singh , Nand Lal v. Jetha Ram and fugal Kishore & Brothers v. Pensioner Subedar . The third case is that of Najam Ali v. Lal Khan and 6 others , 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 , as explained in the Calcutta decision in Sarat Krishna Bose v. Bisweswar Mitra and others . Referring to the Allahabad decision in Pitamber Lai v. Dodi Singh , 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 , 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 Committee 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 the4 5 6 7 8 9 10 11 12 13 14 15 16 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 Kirshn2 Bose v. Bisweswa r 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 section 141, nor section 151 of C. P. C. would apply to second applications purporting to be made under Order IX, 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 be 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 matter s 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 suit or 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 gasps 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 section 141 should not apply to a second application under the provisions of Order IX. Even if the view is taken that section 141 applies only to independent proceedings of a civil nature, then we have only to refer to the Patna decision in Shaikh Muhammad Jamil v. Mst. Bibi Tufailan . 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 restoration 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 proceedings 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 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 Rahman17 18 Shah and others v. Shahani 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 and in S. A.
Menon v. Revd. Father J. E. Lafon . 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 , 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 Buz and others . 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 All 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 : "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, consequence 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 AIR 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 section 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 o their Lordships of the Supreme Court in Raja v. The State 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 under19 20 21 22 23 24 discussion before us. We are, however, inclined to agree with the view that a second application may be made under the provisions of Order IXi itself read with section 141, C. P. C., and we have come to this all 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. PLD 1959 Quetta 1 AIR 1925 All. 773 AIR 1929 Lah. 878 AIR 1933 Rang. 406 PLD 1966 B J 27 AIR 1919 Lah. 155 AIR 1920 Lah. 304 AIR 1923 Lah. 302 AIR 1927 Lah. 71 AIR 1927 Lah. 904 AIR 1934 Pesh. 13 PLD 1968 Kar. 59 (1894) 22 I A 44 AIR 1927 Cal. 534 ILP. 46 All. 319 I L R 10 All. 71 (1920) 63 I C 47 AIR 1926 Mad. 654 AIR 1923 Oudh 146 I L R 3 Rang. 534 AIR 1941 All. 101 AIR 1937 Sind 273 (1885) 5 All. 163 1968 SCMR 1283