1. ' MUHAMMAD AFZAL ZULLAH, C.J.---The defendants/vendees in a pre-emption matter have through this appeal called in question the acceptance of the High Court of a Civil Revision filed by the respondent/plaintiff.
2. ' The respondent's suit was decreed by the Trial Court on 22-7-1979. The appellants' appeal was accepted by the District Court on 14-6-1982. The respondent's Civil Revision was dismissed in default on 20-9-1982. An application for restoration submitted by the same side was dismissed on 9-10-1982 by the High Court. Instead then challenging the decision of the High Court in refusing to restore the Civil Revision, the respondent filed fresh Civil Revision on 6/7-11-1982 which was allowed on 19-12-1988. Learned counsel remained unable to attack the impugned judgment on any ground relatable to the merits of the case. He, however, contended that the fresh Revision Petition was not competent as under Order IX, Rule 4, C.P.C. The respondent's side had opted for filing a restoration application. Once that option is exhausted, according to him, the fresh Revision could not be filed.
3. Secondly, he contended that in any case the Revision was time-barred and that the period spent in pursuing the application for restoration could not be excluded. Although the learned counsel for the appellant, did not cite any case in support of any of the contentions, learned counsel for the respondent however in order to support the impugned judgment relied on Aziz Din v. Qadir Bakhsh PLD 1987 Lah. 119, Tulshi Singh and another v. Sheosaran Rai and others AIR 1926 Allahbad 678 and Bhudeo v. Musammat Baikunthi (63 Indian Cases 239). A feeble attempt was made to urge that the pre-emption suit filed by the respondent's side was also barred by one day. But later on this point was given up. The main question raised by the learned counsel is: whether once a restoration application fails, the provision contained under Order IX, Rule 4, C.P.C. Would prohibit the filing of the fresh proceedings -whether of suit or 'of revision on the assumption that it would be attracted also to the revisional proceedings. Order IX, Rule (4), read as follows:-- "Order IX.--Appearance of parties and consequence of non-appearance.-- (1)
4. (2)
5. (3)
(4) Where a suit is dismissed under rule 2 or rule 3, the plaintiff may (subject to the law of limitation) bring a fresh suit; or he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his not paying the court-fee, any postal charges (if any) required within the time fixed before the issue of the summons, or for his non- appearance, as the case may be, the Court shall make an order setting aside the dismissal and shall appoint a day for proceeding with the suit."
6. It is correct that the plain reading of the rule makes the two options; one of bringing a fresh suit and the other of seeking the setting aside of the dismissal as excluding each other; but on deeper analysis it seems that in reality one alternative would not obliterate and exhaust the other remedy.
7. Had it been the intention of the law maker it could have been so stated in the rule itself. The matter of choice has been left to the party affected to make judgment whether or not a lengthy trial of fresh suit can be avoided by trying to get the dismissal set aside. If there is a failure in this short summary remedy, then of course the law intended that the time consuming remedy may also be sought and pursued. The penalty to counterweigh this additional remedy is inherent in the filing of the fresh suit; firstly, it is subject to the law of limitation and secondly, if the court-fee is involved it would have to be paid on a fresh suit. On general principles also if two interpretations are possible, the one which advances the remedy and fair play as well as the decision of lis after due trial, has to be adopted. Accordingly, the first argument of the learned counsel is repelled. There was no bar to the respondent in filing a fresh suit after the dismissal of his application for restoration of the Revision. The second contention regarding limitation in filing the Civil Revision is also without force.
8. ' If, as discussed, it was within the right of the respondent to file an application for restoration before filing a fresh suit it will have to be treated as a genuine effort in seeking available remedy with a view to avoid the filing of a fresh suit. The intention in this situation cannot be otherwise than bona fide. Accordingly, we consider the period spent on seeking remedy for restoration of the Revision as governed by section 14 of the Limitation Act and the same thus would have been excluded if there would have been a period of limitation prescribed by law for filing the first or the second Civil Revision. It is admitted that there is no time limit fixed for filing of the Civil Revision. Though according to the case-law it should be within reasonable time which has been indicated in some of the cases. Applying that criterion also the filing of the fresh Revision Petition was not delayed in this case beyond reasonable time. Accordingly, finding no force in this appeal the same is dismissed. There shall be no order as to costs.