1. SARDAR SAID MUHAMMAD KHAN, J.--This appeal, by leave, has been directed against the judgment of the High Court passed in exercise of its revisional jurisdiction on 13-9-1980.
2. The case has a chequered history behind it. The land measuring, 21 Kanals 1 Marla under Survey No. 354, situated in village Chawala, was transferred by one Inayatullah by a registered sale-deed, executed on 31-7-1962, in favour of Faqir Alam and others for a consideration of Rs.1,000. A pre- emotion suit, was filed by Bahadur Ali (now deceased) in the Court of Sub-Judge, Kotli, on 2-8- 1963. The suit was decreed in favour of the plaintiff-pre-emptor. But on appeal to the District Judge, two additional issues were framed and the case was remanded back to the trial Court to decide the case afresh according to the directions contained in the remand order. While passing the remand order, the District Judge directed the parties to appear in the Court below on 16-12-1972. It transpires from the record that the file of the case was not received by the trial Court on the Gate fixed by the District Judge for the appearance of the parties. Consequently, on 2-2-1973, the notices were issued by the trial Court to the parties to put up their appearance on 11-3-1973. On 11-3-1973, the plaintiff was not served and notice was again issued for 14-5-1973. On 14-5-1973, the notice issued to the plaintiff was not received back but Ajab Khan, the son of the plaintiff, Bahadur Ali, appeared before the trial Court. However, the learned Sub-Judge dismissed the suit in default observing that Ajab Khan did not possess any power of attorney. Bahadur Ali, plaintiff, submitted an application through his counsel for the restoration of the suit on 27-6-1973; asserting that he could not put up his appearance on the relevant date because he was ill and his counsel did not appear due to some strike of the Bar Members at Kotli. On 11-8-1973. Ajab Khan, the son of Bahadur Ali, submitted an application praying that as Bahadur Ali had died on 12-7-1973, his legal representatives might be brought on the record. The Sub-Judge issued notices to the non- applicants/defendants that if they had any objections to the impleadment of the legal representatives of the deceased-plaintiff, they might file the same by the next date. An application was also submitted by Wazir Alam on behalf of the defendants, on 17-6-1974, alleging that the suit had abated because the legal representatives of Bahadur Ali had not been brought on the record, and thus, the suit could also be not restored. On 31-10-1976 Ajab Khan, the son of the deceased- plaintiff, through his counsel submitted another application that Mst. Gulzar Begum, one of the legal representatives of the plaintiff, Bahadur Ali, had died and her legal representatives, mentioned in the application, might be brought on the record. It may be mentioned here that before the aforesaid application Wazir Alam, one of the defendants, had also submitted an application on 12-1-1975 stating that the suit had abated because Gulzar Begum had died and her legal representatives had not been brought on the record. There is also an application on the record submitted by Inayatullah, one of the defendants, on 7-12-1974, alleging that as the plaintiff had died and his legal representatives had not been brought on the record, the suit had abated.
3. On 31-10-1976, the trial Court passed the interim order stating that the objections had been filed and afterwards adjourned the case for sixteen times directing to trace out the original file and place the same on the record. But the needful was not done and finally the said application was dismissed in default on 12-6-1977. Thus, the application for the restoration of the said application was made on 7-7-1977 alleging that as the application for restoration of the suit was fixed for tracing out the original file and the absence being not intentional, the same might be restored.
4. Consequently, the notices were issued to the non-applicants and few adjournments were given.
5. On 11-7-1978, it was recorded in the interim order that as Muhammad Alam, one of the vendees- defendants, had died, the applicants should explain on the next date as to what steps they intended to take with regard to bringing his legal representatives on record. The application for the restoration of the previous application was adjourned for few dates and finally it was dismissed on 31-12-1978, in default as well as for the non-compliance of the Court's order with regard to the explanation sought by the trial Court about Muhammad Alam, deceased. Consequently, a revision petition was filed in the High Court against all the three orders, dated 31-12-1978, 12-6-1977 and- 14- 5-1973. The then learned Chief Justice of the High Court Mr. Justice Sardar Muhammad Sharif Khan accepted the revision petition and vacated all the aforesaid three impugned orders on 13-9-1980. It is against the aforesaid order of the High Court passed in exercise of its revisional jurisdiction that the present appeal, by leave, has been preferred in this Court.
6. We have heard the arguments' and perused the record. It has been argued by Mr. Muhammad Abdul Khaliq Ansari, Advocate, appearing on behalf of the appellants, that the revision petition in the High Court was incompetent because the impugned orders before the High Court were open to appeal before the District Judge and no appeal was competent before the High Court in view of the provisions contained in section 115, C.P.C. He has relied on Karam Din v. Jeeo PLD 1965 Azad J & K 23, Kishun Prasad v. Hardwar Singh AIR 1946 Pat. 184, Rameshar Dutt Singh v. Harihar AIR 1937 Oudh 344 and Paidipati Kamma Narsayya v. D. Thimmappa and another AIR 1943 Mad. 584, in support of 'his contention. There is no quarrel with the proposition that the order of dismissal of the application for the restoration of the suit is appealable under Order XLIII and as such no appeal is competent under section 115, C.P.C. However, there is divergence of opinions amongst judicial authorities as to whether the order of dismissal of the application dismissed in default, which is submitted for the restoration of the suit, is appealable or not one view is that the application submitted for the restoration of the application made under Order IX, rule 8 is appealable by virtue of section 141, C.P.C. Read with Order XLIII (i)(c) of the C.P.C.; whereas, the contrary view is that the right of appeal being substantive right and not merely a matter of procedure is not available by virtue of section 141, C.P.C.; because the said provision only envisages procedural matters and does not create substantive rights. We are of the view that in the instant case the order of dismissal of the suit was made on a date which was not fixedfor hearing but for the appearance of the plaintiff and thus it was ab initio void and the restoration of the suit could rightly be ordered under the inherent powers of the High Court. The revision petition would be deemed to be an application under section 151, C . P. C .
7. It has been argued by the learned counsel for the appellant that inherent powers cannot be exercised to defeat the provisions of law or to overcome the bar of limitation. His argument is that as the application for restoration of the suit dismissed on 14-5-1973 was time-barred the Court had no jurisdiction to have resort to inherent powers to restore the suit. The learned counsel has cited the following authorities in support of his contention: Commerce Bank Ltd. v. Sarfraz Autos and another PLD 1976 Kar. 973, Mst. Allah Rakhi v. Mst. Ghulam Fatima PLD 1954 B.J. 60, Messrs Conforce Ltd. v. Syed Ali Shah PLD 1977 SC 599 and Sardar and another v. Sultan and others PLD 1971 Lah. 690.
8. We have gone through the aforesaid authorities. It may be observed that it is settled principle of law that inherent powers cannot be resorted to, when there is a specific provision in the civil procedure applicable to an eventuality, and that if the remedy provided by such provision is not availed of within the period of limitation, resort cannot be had to the inherent powers available under section 151, C.P.C. In the instant case, however, the question is as to whether the dismissal of the suit on 14-5-1973 can be regarded to be one falling under Order IX, rule 8. As has been already stated, the aforesaid date was fixed for the appearance of the plaintiff and the notice to the plaintiff for the said date had also not been returned after service. Thus, the date liked for the appearance of the party cannot be said to be a date of 'hearing' within the meaning of Order IX, rule 8. The provisions of Order IX, rule 8 would be attracted only if the suit is fixed for hearing and not otherwise. If a dismissal is ordered on a date not fixed for hearing the order of dismissal of the suit would not fall under Order IX, rule 8 and, therefore, such an order would be without jurisdiction.
9. Thus, the argument that inherent powers could not be invoked to overcome the bar of limitation is not available in the instant case, because we are of the view that order of dismissal on a date not fixed for hearing is ab initio void and there is no question of limitation and, in any case, the period of limitation will be governed by Article 181 of the Limitation Act and not by Article 176. We are fortified in our view in cases reported as following:---- Rahim Bux v. Gul Muhammad PLD 1971 Lah. 746; Allah Ditta v. Aziz Din PLD 1981 Lah. 508; Muhammad Hussain v. Walayat Shah PLD 1959 Lah. 526; Sh. Ghulam Mujtaba v. Noor Muhammad Khan PLD 1964 B.J. 8 and Mst. Ghulam Sakina v. Karim Bakhsh PLD 1970 Lah. 412.
10. It may be observed that the learned counsel has laid great stress in Messrs Conforce Ltd. v. Syed Ali Shah PLD 1977 SC 599, wherein Mr. Justice Dorab Patel, J. While dismissing the petition for leave to appeal opined that a void order or an order without jurisdiction is merely a type of an illegal order and the fact that it has been passed and may, therefore, create rights cannot be altered by describing it as void or without jurisdiction and in such cases resort cannot be had to section 151, C.P.C. It may be stated here that the learned Judge has also recorded in the aforesaid case that as the previous order passed in the suit was not produced, it could not be said that the date of dismissal of the suit was not a date of hearing. His Lordship has also expressed the view that as the impugned order in that case was not final, the petition could not be allowed. We are constrained to say that the observations made by the learned Judge that even in cases where the order passed is without jurisdiction or is ab initio void, the Court should not rectify the wrong in exercise of its inherent powers being against the weight of judicial opinion cannot be followed.
11. Next, it has been argued by the learned counsel for the appellant that as the legal representatives of Bahadur Ali, plaintiff, and Gulzar Begum were not brought on record, the suit had abated. It is admitted that Bahadur Ali and Gulzar Begum died when the application. For restoration of the suit was pending. Thus, at the time of their death the suit of pre-emption was not pending in the trial Court and as such there is no question of abatement of the suit. If an appeal or a suit is not pending a, the time of the death of a party, there is no question of abatement of the suit or appeal.
12. We are fortified in our view in` Ashraf Khan v. Abdullah Khan PLD 1975 Azad J & K 32, wherein it was held that the provisions of Order XXII, rules 3 and 4 would be attracted only when the suit or appeal is pending at the relevant time and not otherwise. If the record of the suit or appeal is not with the Court concerned and only an index is retained by such Court the suit or appeal, as the case may be cannot be said to be pending in the Court.
13. It has been argued by the learned counsel for the appellant that although the applications for bringing the legal representatives of Bahadur Ali and Gulzar Begum were submitted during the pendency of the application for restoration of the suit but the said applications were time-barred.
14. He has further contended that the defendants submitted applications to the Sub-Judge that the suit had abated due to non-impleadment of the legal representatives of Bahadur Ali and Gulzar Begum but the trial Court did not take note of the aforesaid applications. It did not give findings on the question of limitation nor passed any formal order with regard to the impleadment of the legal representatives of the said persons and consequently no correction was made in the title of the applications. Thus, according to the learned counsel, it would be deemed that their legal representatives had not been substituted in the application.
15. The question which needs determination is as to whether the provisions of Order XXII, C.P.C. Are applicable to an application made for the restoration of the suit. We are of the view that the provisions of Order XXII do apply to an application under Order IX, rule 9. There has been divergence of opinions on the point among judicial authorities as to whether the provisions of section 141, C.P.C. Would be attracted only in case of proceedings which are original and are in the nature of a suit, such as proceedings under Insolvency Act or Guardianship Act, etc., or those are applicable even to proceedings which are not original and are in the nature of a suit. However, the weight of the judicial opinion is in favour of the view that the application of section 141, C . P . C . Is not confined to the proceedings which are original and are "in para material', with the suit but are also applicable to the proceedings which spring out of a suit and are not original in nature. We prefer the later view and hold that the provisions of section 141 are applicable even to the proceedings which are not original in nature and flow from a suit.
16. The next point which needs to be resolved is as to what is the period of limitation for impleading the legal representatives of the deceased applicant or non-applicant in an application which is made for the restoration of such an application. For convenience, section 141, C . P . C . Is reproduced below:- '
17. "141. Miscellaneous proceedings.--The procedure provided in this Code in regard to suits shall be followed as far as it can be made applicable, proceedings, in any Court of civil jurisdiction."
18. It is evident from the provisions contained in section 141, C . P . C . That the procedure provided in the Civil Procedure Code with regard to the suit, so far as it can be made applicable, shall be followed in all the proceedings in any Court of civil jurisdiction. Section 141 merely speaks of procedure and does not make the provisions of the Limitation Act relating to suits or appeals, applicable to such proceedings. Thus, the period of limitation provided under Article 176 or 177 of the Limitation Act for bringing the legal representatives of plaintiff /appellant and defendant/ respondent on record would not govern an application under Order IX., rule 9 by virtue of section 141, C.P.C. As for such cases, there is no provision in the Limitation Act providing period of limitation for bringing the legal representatives of the deceased applicant or non-applicant on the record, the limitation prescribed for bringing legal representatives on record would be governed by the residuary Article 181 of Limitation Act which provides a period of three years from the date when right to apply accrues. Therefore, the period of limitation for brining the legal representatives of an applicant or non-applicant in an application under Order IX, rule 9 or for the restoration of such application would be 3 years from the date of the death of the party concerned and not 90 days as prescribed under Articles 176, 177 of the Limitation Act. We are supported by the view taken with, regard to the impleadment of the legal representatives in revision petitions. It has been held by various judicial authorities that if at all Order XII is held applicable to a revision petition the period of limitation for bringing the legal representatives on record would be governed by Article 181 and not Article 176 of C.P.C. A reference may be made to the cases Sikandar Khan v. Muhammad Zuber PLD 1962 Pesh. 105, Muhammad Sadaat Ali Khan v. The Administrator Corporation of City of Lahore AIR 1949 Lah. 186, Nawab Syed Kazim Hussain v. Seth Pearey Lal AIR 1939 Oudh 277 and Manickam and others v. R.M. Ramanathan Chattiar and others AIR 1949 Mad. 435. It is not the case of the appellants that the applications for bringing the legal representatives of Bahadur Ali and Gulzar Begum were filed after the expiry of period of 3 years; their case is that the applications were made beyond the period of 90 days as prescribed under Article 176. It may be observed here that the applications for restoration of the suit were filed on 27-6-1973 and the applications for bringing the legal representatives of Bahadur Ali on record were submitted on 11-8-1973. Similarly, the application for bringing the legal representatives of Gulzar Begum was filed on 31-10-1976; which means that the said applications were filed within the period of 3 years, reckoned from the date of the death of Bahadur All and Gulzar Begum. The learned counsel has also argued that the application in case of Bahadur Ali was submitted by Ajab Khan, his son, who had no power of attorney on behalf of the other legal representatives and as such the application was incompetent.
19. We are afraid we cannot subscribe to the contention of the learned counsel for the appellant because we are of the view that any of the legal representatives of a deceased party is legally competent to file application on behalf of all the legal representatives because if that is not done, the suit or appeal may abate in tote. It was held in 5 I.C. 514 that if the application to bring legal representative is made by a person believing himself to be a legal representative of the deceased party, but in fact he was not a legal representative of such party, the impleadment of, the other legal representatives through such person is valid. Thus, the argument that the application in case of Bahadur Ali is incompetent, is also devoid of any force and is hereby repelled.
20. So far as the case of Muhammad Alam deceased is concerned, it transpires from the record that the trial Court mentioned in the interim order, dated 11-7-1978 that the process-server had reported that Muhammad Alam had died. Consequently, the case was adjourned for few times for furnishing opportunity to the counsel for the applicant as to what steps he intends to take with regard for bringing the legal representatives of Muhammad Alam on record. The counsel for the applicant failed to do the needful and finally the application for the restoration of the previous application was dismissed for the non--compliance of the Court's order and in default. However, when the revision petition was preferred to the High Court, the legal representatives of, Muhammad Alam were also arrayed in the line of the non-petitioners within 3 years after this death. In case of revision petitions it has been held by various judicial authorities that if at all the provisions of Order XXII, C.P.C. Are held applicable to such petitions, the period for bringing the legal representatives of a deceased party on record would be governed by Article 181 and not by Article 176 or 177.
21. Reference may be made to cases reported as Muhammad Sadaat Ali Khan v. The Administrator Corporation of City of Lahore and Nawab Syed Kazim Hussain v. Seth Pearey, which support the aforesaid view. We are unable to subscribe to the view held in Haji Dad Shah v. Muhammad Fazal PLD 1971 Quetta 69, that a revision petition would abate if the legal representatives of a deceased party, are not brought on the record within the period of limitation. On the, same principle an application for bringing legal representatives of deceased party in case of an application under section 151, C.P.C would be governed by Article 181 and not by Article 176 or 177 of the Limitation Act.
22. The next question is as to whether the legal representatives brought on the record in the applications for the restoration in the trial Court and the impleadment of the legal representatives of Muhammad Alam in the High Court would be considered to have been impleaded in the suit itself. Our answer to the question is in affirmative. It is well-settled principle of law that if the legal representatives of a dead party have been validly brought on the record in the superior forum, there is no question of abatement of the suit on the ground that no application was made in the suit itself within the period of limitation prescribed under law. An introduction of plaintiff or defendant as legal representatives for one stage of the suit is an introduction for all the stages and there is no question of abatement of suit on the ground that no application was made in the suit itself. In cases when the legal representatives of a party have been brought on record in superior forum, in appeal, revision or other miscellaneous proceeding, the trial Court after receiving back the record can substitute such legal representatives in the suit or any other original proceeding itself and necessary correction may be made in the title of the suit. We are fortified in our view by cases reported a5 Brij Indar Singh v. Lala Kanshi Ram and others AIR 1917 P C 156, Zakria Begum v.
23. Aziz Ahmed NLR 1979 Civil (Lah.) 861 and Mir Ghulam Abbas v. Hashim and others 1969 S Q M R 257.
24. In the light of what has been stated above finding no force in this appeal, it is hereby dismissed. In view of the fact that somewhat difficult questions are involved in this appeal we make no order as to the costs.