1. ' SALEEM AKHTAR, J,---This appeal with the leave of the Court arises from the judgment of the learned Judge in Chambers whereby application for setting aside the judgment passed in the absence of the appellant's counsel was dismissed holding that as the revision application had been disposed of on merits, application under section 151, C.P.C. For setting aside the same does not lie. The appellant's revision application was fixed for hearing on 13-12-1992, which was dismissed in the absence of appellant's advocate after hearing the advocate for the respondents.
2. The judgment seems to have been rendered on merits. On the same day the appellant filed an application under section 151, C.P.C., which was heard and was dismissed holding as follows:- "Since RA. Has been dismissed on merits, as such this Court has no jurisdiction to re-call its order dated 13-12-1992. Accordingly the present CMA stands dismissed."
2. Leave was granted to consider whether sufficient cause was shown by A the counsel for the appellant for his non-appearance on 13-12-1992 and whether the revision application should have been heard on merits.
3. The application was filed under section 151, C.P.C.. The learned counsel for the appellant contended that in the absence of any specific provision for recalling or setting aside an order, the provisions of section 151, C.P.C. Could be pressed in service and in any event the provisions of C.P.C.
3. Were applicable for setting aside the judgment. On the other hand Mr. Hasan Akbar, learned ASC contended that the Court can exercise jurisdiction only if it is permitted by the Constitution or the law and as C.P.C. Does not make any provision for setting aside any judgment passed in exercise of revisional jurisdiction, the provisions of section 151, C.P.C. Or Order IX, rule 13, C.P.C. Cannot be invoked. The question for consideration is whether an application for setting aside or recalling the judgment passed ex parte in exercise of revisional jurisdiction is maintainable. The learned counsel for the appellant has relied on Municipal Committee, Jhelum v. Maulvi Muhammad Shafi (1971 SCMR 740) where the following observation was made:-- "For his alternative submission, the learned counsel for the petitioner relied on the provisions of rule 19 of Order XLI, C.P.C., which relate to restoration of appeals dismissed for non-prosecution. The contention of the learned counsel was that this provision will also apply to revision applications under section 144 (141), C.P.C., as there is no special procedure laid down in the Code for the revision petitions. It was submitted by him that the application for restoration of an appeal under Order XLI, rule 19, C.P.C., has to be made within 30 days of dismissal order, as provided by Article 168 of the Limitation Act. A reference to section 144 (141) of the Code of Civil Procedure, which has been relied upon by the learned counsel, however, shows that if it is to be applied to the revision applications, the procedure provided in the Code in regard to suits shall be followed as far as it can be made applicable to the revision petitions. Order IX, rules 3 and 4 of the Code, which will be attracted to the situation, would permit the institution of a fresh application as well as for the application for setting aside the dismissal order, leaving it to the plaintiff-petitioner to choose his remedy. We are of the view that there was no legal hurdle in the way of the petitioner to renew his application for a temporary injunction in the High Court in spite of the dismissal of the first for non- prosecution."
4. ' Reference was also made to Ahmed Ali v. Registrar, Cooperative Societies (PLD 1971 Kar. 182). In this case an application under Order IX, rule 9, C.P.C. Was dismissed for default. Another application under Order IX, rule 9, C.P.C. Was made for restoration of the first application under Order IX, rule 9, C.P.C.. The trial Court dismissed the second application as not maintainable. In revision before the High Court question arose whether an application under Order IX, rule 9, C.P.C. Lies to restore previous application under Order IX, rule 9, C.P.C., which previous application had itself dismissed in default. After discussing a large number of judgments, Noorul Arfin, J. Speaking for the Bench held that a second application may be made under Order IX, rule 9 itself read with section 141 and further 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 section 151, C.P.C. The learned Judges dissenting from the judgment in Najam Ali v. Lal Khan (PLD 1968 Kar. 59) relied upon the observations of Mahmood, J., in Narsingh Das v. Mangal Dubey (1885) 5 All. 163, where it was observed as follows:-- "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."
5. ' By these judgments the law stands settled. In Municipal Committee, Jhelum (1971 SCMR 740) in the absence of any specific provision for setting aside the order of dismissal of revision application by applying section 141, C.P.C., the provisions of Order IX, rules 3 and 4, C.P.C. Were pressed in service.
6. Thus an application for restoration or setting aside an order or judgment passed ex parte in a revision application is maintainable. The argument of learned ASC for the respondents is based on the principle that as the Courts are creature of Constitution and law, unless specific provision exists for exercise of jurisdiction f or a particular situation, no relief can be granted even under the inherent 'powers. Reliance has been placed on M/s. Ghanisons Industries Ltd. v. Mirza Akhlaq Ahmed (PLD 1974 Kar. 339), which is directly relevant in the case as application under section 151, C.P.C. For restoration of revision application was dismissed holding that in the absence of any specific provision, the Court cannot assume jurisdiction to restore it. Reference has also been made to Shahnaz Begum v. Hon'ble Judges of the High Court of Sindh and Balochistan (PLD 1971 SC 677), Sindh Employees' Social Security Institution v. Adamjee Cotton Mills Ltd. (PLD 1975 SC 32), Fauji Foundation v. Shamimur Rehman (PLD 1983 SC 457) and Sh. Sardar All v. The State and another (PLD 1987 Lah. 633), but they only support the general proposition of law as propounded in M/s. Ghanisons Industries Ltd. With profound respect, there are two reasons for not accepting the conclusions in this judgment. Firstly, it did not notice Municipal Committee, Jhelum (1971 SCMR 740) where Order IX, rules 3 and 4, C.P.C. Were made applicable and on that analogy Order IX, rules 9 and 13, C.P.C. Could also be applied. Even if for argument sake section 151, C.P.C. Was not applicable, the provisions of Order IX read with section 141, C.P.C. Could be invoked for exercise of jurisdiction. Secondly, the provisions of section 141 and its implications were not considered which reads as follows:-- "S.141. Miscellaneous proceedings.--- 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."
7. By this section the provisions of C.P.C. Have been applied to proceedings before the Courts of civil jurisdiction. The procedure provided by the Code of Civil Procedure is intended to facilitate the administration of justice and the conduct of proceedings in Civil Courts. Procedural provisions like setting aside the order or restoration of the case dismissed in default are intended to avoid harassm ent and provide justice to the litigants and as observed by Mahmood, J. As a matter of general principle, prohibition unless specifically provided cannot be presumed. There are several judgments of the High Court where revision application dismissed for default were restored.
8. Reference can be made to Syed Iqbal Husain v. Abdul Ghani (PLD 1%7 Lah.633), Babu v. Niaz Bibi (PLD 1982 Lah. 192), Umar Khan v. Nasim Raza and others (1990 MLD 1062) and Fazal Hussain v. Mst.
9. Musharraf Sultana (PLD - 1992 Lah. 250).
10. We are, therefore, of the view that considering section 141, C.P.C. And the general principles of applicability of procedural laws to the proceedings in Civil Courts, application for setting aside the judgment made by the appellant was maintainable. We, therefore, allow the appeal and remand the case to the High Court for decision of the application on merits.