This revision petition has been filed to annul the order of the learned Senior Civil Judge, Sahiwal, whereby he restored an in default on 18th June, 1977 by the impugned order.
2. The relevant facts of the case are that the respondent filed an application under section 20 of the Arbitration Act in the Court of Senior Chid Judge, Sahiwal. The application was dismissed, in default on 25th October, 1975. The respondent filed an application seeking restoration of the suit, in which issues were framed on 15th January, 1977 and the case was adjourned to 18th June, 1977 for evidence. The respondent did not appear on that date and consequently, the application seeking restoration of the suit dismissed in default was also dismissed for non-prosecution.
3. On 23rd July, 1977 the respondent filed another application seeking restoration of the in default on 18th June, 1977. The application was accepted by the impugned order dated 16th February. 1980 by the learned Senior Civil Judge which is assailed by means of this petition.
4. Learned counsel for the petitioner contended that the application seeking restoration of the in default was required to be filed within thirty days from the disposal of application under section 20 of the Arbitration Act as envisaged under Article 163 of the Limitation Act.
' It was next contended that the learned Senior Civil Judge misread the evidence on record wherein observed that Mr. Niaz Ahmad, Advocate had stated in evidence that he misunderstood the date of hearing as 23rd July, 1977 instead of 18th June.
1977.
5. None has appeared on behalf of the respondent to oppose this petition. I have, however, seen the record and considered the arguments advanced by the learned counsel for the petitioner.
Article 163 of the Limitation Act provides :-- "163. By a plaintiff, for Thirty the date an order to set days of the aside a dismissal. For default of appearance or for failure to pay costs of service of process or to furnish security for costs.
It is clear that a period of thirty days prescribed is for the plaintiff to get set aside an order of dismissal for default of appearance which envisages restoration of the suit dismissed in default at the instance of the plaintiff but does not cover restoration of in default, seeking restoration of the suit dismissed for non-prosecution. It is, therefore, obvious that the residuary Article 181 of the Limitation Act would be applicable in the matter which prescribes three years' time of limitation.
The argument of the learned counsel that the second application would also be deemed to be application for the restoration of the suit is not acceptable because there is no clear provision for it in Article 163 of the Limitation Act. The relevant Article for computing time would be 181 of the Limitation Act. This position was affirmed by a Division Bench of High Court of Sind and Baluchistan in case reported as Ahmad Ali v. Registrar, Co-operative Societies (1).
6. The second contention of the learned counsel that the learned Senior Civil Judge misread the evidence on the record has also little force for interference in the impugned order of restoration of the for non-prosecution because the conclusion reached by Civil Judge cannot be considered arbitrary or fanciful. Merely if another inference is possible from the evidence on record would not justify interference in the impugned order whereby the in default was restored and parties directed to have decision on merits. Reference may be made to N. S. Venkatagiri Ayyangar and another v.
The Hindu Religious Endowments Board, Madras (2) where the relevant passage in the headnote reads as follows :- "Section 115 applies only to cases in which no appeal lies, and where the Legislature had provided no right of appeal, the manifest intention is that the order of the trial Court, right or wrong, shall be final. The section empowers the High Court to satisfy itself upon three matters ; (a) That the order of the subordinate Court is within its jurisdiction ; (b) That the case is one in which the Court ought to exercise jurisdiction ; and (c) that in exercising jurisdiction the Court has not acted illegally, that is, in breach of some provision of law, or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon these three matters, it has no power to interfere because it differs, however, profoundly, from the conclusion of the subordinate Court upon question of fact or law. There can be no justification whatsoever for the view that section 115 (c) was intended to authorise the High Court to interfere and correct gross and palpable errors of subordinate Courts. It would indeed be difficult to formulate any standard by which the degree of subordinate Courts could be measured. Where the High Court interfered on the ground that the subordinate Court had made a serious mistake in the construction of a will : ' Held that the order of the High Court was without jurisdiction and must be set aside."
Similarly, in Shahzada Muhammud Umar Beg v. Sultan Mahmood Khan and another (3) it was held :- "It may also be pointed out, with all respect to the learned Single Judge, that he was exercising a limited jurisdictions in revision under section 115 of the Civil Procedure Code which is meant primarily for correcting errors made by the Subordinate Courts in the exercise of their jurisdiction and not those which are made in their discretion, unless the discretion in found to have been exercised fancifully or arbitrarily." {{FOOT NOTE}}
(1) P L P 1971 Kar. 182 (2) PLD 1949 P C 26
(3) PLD 1970 SC 139 {{FOOT NOTE}}
7. For the foregoing reasons, there is no merit in this petitions which is dismissed with no order as to costs.
Petition discussed.