' This order shall dispose of C.M. 1-C of 1996 seeking restoration of the revision petition dismissed for non-prosecution on 6-2-1995 and C.M. 344-C of 1998 under section 5 of the ' Limitation Act seeking condonation of delay in moving the restoration application.
2. The revision petition under section 115, .C.P.C., against the judgments and decrees, dated 23-5- 1994 of Civil Judge, Lahore and, dated 28-9-1986 of Additional District Judge, Lahore was admitted to regular hearing on 27-3-1988. On 23-1-1995, the respondents Muhammad Amin etc., moved an application (C.M. 1-C of 195) for the disposal of the revision petition as allegedly the controversy stood resolved because of an arbitration award duly made rule of the Court. Before the hearing of this application, the revision petition itself was dismissed for non-prosecution on 6-2-1995 in the presence of the respondents' counsel. Thereafter without realizing that the revision petition had already been dismissed for non-prosecution, the respondents moved another similar' application, again numbered by the office as C.M. 1-C of 1995, on 29-10-1995 for the disposal of the revision petition, for the reasons mentioned above. This application came up for hearing for the first time on 22-1-1996 and the factum of the dismissal of the revision petition itself on 6-2-1995 was neither noticed by the learned Single Judge of this Court nor was pointed out by the respondents/applicants' counsel and on this date i,e,, 22-1-1996 notice was issued in the above said application for an early date with a further direction for the fixation of the revision petition also for hearing. On 18-9-1996, the hearing of the application (C.M. 1 -C of 1995) was adjourned on the request of the learned counsel for both the parties. On 21-11-1996, the above application came up for hearing and on coming to know of the dismissal of the revision petition for non-prosecution on 6-2-1995, learned counsel for the respondents/applicants elected not to press the application, which was dismissed as not pressed. Thereafter, the revision petitioners moved the application (C.M. 1-C of 1996) for the restoration of the revision petition on the ground that the above circumstances showed that . The dismissal of the revision petition for .Non-prosecution on 6-2- 1995 escaped the knowledge of both the parties and the proceedings later on continued and the fact also escaped the knowledge of the Court, which shows bona fide mistake' and these circumstances were also pleaded as a ground for condonation of delay in moving the application for the restoration of the revision petition. The revision petitioners moved the application (C.M. 344- C of 1998) under section 5 of the Limitation Act for the condonation of delay on 21-9-1998 in which notice was issued to the respondents on 25-9-1998 and both these applications are being disposed of today.
3. The application for the restoration of the revision petition as well as for the condonation of the delay is being resisted by the respondents' side mainly on the ground that there is no provision in the C.P.C., for the restoration of a revision petition which has been dismissed for non-prosecution and such all application is not maintainable. Learned counsel for the respondents, in this regard, has placed his reliance on Messrs Ganisons. Industries Ltd. Karachi v. Mirza Akhlaque Ahmed (PLD 1974 kar. 339) and Mst. IsVida Begum v. Sh. Zulfiqar Ali and another (PLD 1987 Lah. 112).
4. In Messrs Ganisons Industries Ltd., Karachi v. Miria Akhlaque Ahmed (supra), a learned Single Judge of Sindh High Court held that in the case of suits and appeals, the power exists under Order IX, Rule 9 and Order XLI, Mile 19, C.P.C., to set aside dismissals of suits and appeals in default of appearance but there is no corresponding provision relating to civil revision petitions and, therefore, a revision petition dismissed for non-prosecution cannot be restored. The learned Judge also went on to hold that in this regard the provision of section 151, C.P.C., could not also be pretsed into service successfully because inherent jurisdiction is ancillary and incidental and there has to be. Jurisdiction before the inherent jurisdiction can be invoked and cannot be exercised independently of it, otherwise it will he a case of usurpation of power. In Mst. Majida Beguin v. Sh.
Zulfigar Ali and another (supra), a learned Single Judge of this Court while relying on the above said Karachi case, held that revision petition ,is not a remedy of right and is conversely something ex gratia and when a revision petition is dismissed for non-prosecution, there will be no right to ask for its restoration nor would any formal application for the purpose be competent. In the said case, the revision petition was dismissed in limine on 24-4-1985. The application for the review of, the same was dismissed for non-prosecution on 19-10-1986 and the application for the restoration of the same was dismissed on 8-11-1986 and the learned Single Judge held that a miscellaneous application for setting aside primarily an order of refusal to restore review application assumed the shape of second review and was not maintainable and in the same order made Observations regarding the non- maintainability of an application for the restoration of a revision petition dismissed for non-prosecution.
5. On the other hand, learned counsel for the petitioners has referred to and has relied upon Jan Muhammad v. Muhammad Asghar (PLD 1981 SC 513) and Babu v. Mst. Niaz Bibi (PLD 1982 Lahore 192). In the former case, a learned Single Judge of this Court dismissed an application for restoration of civil revision which had earlier been dismissed for non-prosecution on the ground that there was no sufficient cause for the restoration of the revision petition. The order was assailed before the honourable Supreme Court. The apex Court held that the matter fell within the discretionary jurisdiction of the High Court and remitted the case back to the High Court for the fresh decision on the question of sufficiency of cause. Learned counsel for the petitioners while relying on this judgment has submitted that this ('ouri has the jurisdiction to restore a revision petition if sufficient cause is shown for the restoration of the same and had there been no such jurisdiction with this Court, the honourable Supreme Court in the above judgment would have dismissed the appeal on this ground and would not have remanded the case back to the High Court for the fresh decision on the question of sufficiency of the cause for restoration. In Babu v.
Mst. Niaz Bibi (supra), a learned Single Judge on this Court has held that a revision petition can be restored if sufficient cause is shown for setting aside the default and the learned Judge dissented with the view expressed by a learned Judge of Sindh High Court, referred to by the learned counsel for the respondents in Messrs Ganisons Industries Ltd., Karachi v. Mirza Akhlaque Ahmad (PLD 1974 Karachi 339). It may also be mentioned here that the learned Single Judge of this Court while expressing the view in Mst. Majida Begum .v. Sh. Zulfiqar Ali and another (PLD 1987 Lahore 112) did not consider the view expressed earlier on by a learned Single Judge of this Court in Babu v. Mst.
Niaz Bibi (supra) and did not distinguish the same. The judgment also shows that he was not aware of the view expressed by the Honourable Supreme Court in Jan Muhammad's case (PLD 1981 SC 513) to the effect that a revision petition can be restored if a sufficient cause is shown to justify its restoration.
6. In Municipal Committee, Jhelum v. Maulvi Muhammad Shafi (1971 SCMR 740), the honourable Supreme Court did not reject or repel the contention of a learned counsel that the provisions of Order XLI, Rule 19, C.P.C., in regard to the restoration of an appeal dismissed for non-prosecution would apply to revision petitions also as there was no special procedure laid down in the Code of Civil Procedure for the revision petitions. In Syed lqbal Hussain Shah v. Abdul Ghani and others (PLD 1987 Lah. 633), a revision Petition under Displaced Persons (Compensation and Rehabilitation) Act, 1958 was dismissed in default and it was held that the same could be restored. The learned Single Judge while holding so made the following observations in para.7 of the judgment:-- "There are no previsions under the Act for the dismissals of the cases in default but this power can be considered to be inherent in all those Courts or Authorities who exercise quasi-judicial powers as a Civil Court to dismiss a case for want of prosecution and when an order dismissing a case in default is passed, the Court or Authority has inherent jurisdiction to restore it to its file. Under section 23 the officers holding enquiry and hearing appeal have been given power to restore a case dismissed in default when 11 party is able, to make out a case within the meaning of Order IX, Rule 9 of the C.P.C. So far as the revisional Court is concerned, its powers are not restricted by any such consideration because it is an accepted principle of the law that when a revision is dismissed on the ground of default, the order of dismissal of default is not a final judgment or order."
7. Similarly, in Mohabbat v. Asadullah Khan and others (PLD 1989 SC 112), a learned Single Judge of Peshawar High Court recorded additional evidence or a Patwari while exercising revisional jurisdiction and it was argued before the Honourable Supreme Court that in doing so, the learned Single misdirected himself as he was exercising the powers of Appellate Court. In thiS behalf. It was stressed that the revision was not a continuation of the suit like an appeal and, therefore, no additional evidence could be -recorded on the merits of the case. The Honourable Supreme Court while repelling the arguments and while dismissing the appeal held that "even if technically Order XLI, Rule 27, C.P.C., did not apply to the revision as it was not a continuation of the suit, I have no hesitation (Muhammad Haleem CI.) in holding that the High Court could in the exercise of its inherent jurisdiction under section 151, C.P.C., admit such evidence for clarification in the ends of justice." I 'am of the view that in Majida, Begum v. Sh. Zulfior All and another (supra), the learned .Single Judge was not assisted properly and had the earlier judgments of the Hon'bie Supreme Court and of this Court, namely, Jan Muhammad v. Muhammad Asghar (supra) and Babu v. Mst.
Niaz Bibi (supra) been brought to the notice of the learned Judge, the result would have been different. In Jan Muhammad v. Muhammad Asghar the Hon'ble Supreme Court remitted the case back to the High Court for fresh decision on the question of sufficiency of cause of restoration of the revision petition and had there been no jurisdiction with this Court to restore the revision petition dismissed for non-prosecution, there would have been no need to remit the case back to go into the issue of sufficiency. Therefore, in my humble view, the law as laid down in Mst. Majida Begum v: Sh. Zulfiqar All and another (PLD 1987 Lahore 112), cannot be followed and it has been correctly held in Babu v. Mst. Niaz Bibi (PLD 1982 Lahore 192) that a revision petition can be. Restored if sufficient cause is shown for setting aside the default and correctly dissented with the view expressed by a learned Single Judge of Sindh High Court in Messrs Ganisons Industries Ltd., Karachi v. Mirza Ikhlaq Ahmed (PLD 1974 Karachi 339). The view has now been further strengthened by a decision given by the Hon'ble Supreme Court in Mohabbat v. Asadullah Khan and others (supra) wherein the order of recording additional evidence in a revision petition by a learned Single Judge of Peshawar High Court was upheld by the apex Court on the ground that High Court could in the exercise of its inherent jurisdiction under section 151, C.P.C., admit such evidence for clarification in the ends of justice. On the same analogy, it can now be safely held that this Court has the inherent jurisdiction under section '151, C.P.C., to restore a revision petition dismissed for non-prosecution if sufficient cause for the default is shown. It is. Therefore, held that this Court can in the exercise of its inherent jurisdiction under section 151, C.P.C,, restore a revision petition which has been dismissed for non-prosecution if the sufficiency of cause of default is established.
8. The revision petition was dismissed for non-prosecution on 6-2-1995 and the learned counsel for the petitioner contends that neither he nor the petitioners had the knowledge or information of the date of hearing and thereafter, he had been appearing in this revision petition on various dates (mentioned in the preceding paragraph) assuming that everything was in order as it was so argued by the respondents' side as well as by the Court, so much so that even after the dismissal of the revision petition, the respondents moved an application (mentioned above) for the dismissal of the' revision petition as, according to them, the matter had already been resolved through an arbitration award. Learned counsel contends that for the same reasons the delay, if any, in moving the application for the restoration of the revision petition merits condonation. In the end, it has been argued that the law favours decision on merits and on this score also the revision petition should be. Restored so that the same can be disposed of on merits.
9. In my opinion, the revision petition merits to be restored because although the revision petition was dismissed for non prosecution in the presence of the respondents' counsel yet the respondents through the same learned counsel thereafter moved an application for the disposal of the revision petition, on the ground mentioned above. It shows that the order of dismissal for want of prosecution passed by this Court on 6-2-1995 had escaped both the parties. The applications are duly supported with the affidavits of petitioner, Muhammad Mal and there is no counter-affidavit from the respondents side and, therefore, the plea of bona fide mistake being urged by the learned counsel is accepted as a sufficient cause. The circumstances also show that the petitioners arc not negligent. However, I am of the view that since the absence of the petitioners and their counsel has not been explained in detail in the applications, therefore, the petitioners are liable to pay heavy costs.
10. In view of the abovementioned and also in view of the fact that law favours decision on merits, the applications are allowed and the revision petition is restored to its original- number subject to the payment of costs of Rs,10,000, to be paid by the petitioners within one month or on the next date of hearing in Court to the respondents.
11. The revision petition to come up for hearing on 10-6-1999. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.