1. Plaintiff's application under Order XXXIX, rules 1 and 2, C. P. C. Was dismissed on 17-10-1977 in default of appearance of the plaintiff and her Advocate. Plaintiff by present application under section 151, C. P. C. Order IX, rule 9, read with Order XXXIX, rules 1 and 2, C. P. C. Seeks restoration of the application dismissed in default of appearance and also the order of status quo.
2. Advocate for the plaintiff Mr. Rustom J. E. Kaikobad has filed his personal affidavit in support of the application explaining the reasons of his absence at the time when the case was taken up by the Court.
3. It is not disputed that he was present in the morning in Court in this case and again at 11-00 a. m.
4. As stated by him. According to Mr. Kaikobad, Advocate. He was called to the Court of my brother Fakhruddin G. Ebrahim,
1. And he had gone there after informing the peon of this Court. I have no reasons to disbelieve his words. It is also correct that after I had passed the order and Mr. IQbal Kazi had left the Court, he had appeared and bad orally explained his absence from this Court for short time, but it was pointed out to him that proper application was necessary as Mr. Iqbal Kazi learned Advocate for the defendant had already left the Court.
5. Mr. Qazi in response to notice is present and opposes application on the ground that it is not maintainable as Order IX, rule 9 and section 151, C. P. C. Is not applicable to the order dismissing the application in default of appearance of the parties. His argument is that the provisions of Order IX, C. P. C. Apply only to suits only and not to applications under Order XXXIX, C. P. C. If the same is dismissed in default of appearance. He has relied on Privy Council decision in Thakur Prasad v.
6. Fakirullah on a Full Bench decision of Madras High Court in Arunach--alam v. P. K. A. C. T. Veerappa Chittlar AIR 1931 Mad. 656, and on a Single Bench decision of this Court In Ganlvons Industries Ltd., Karachi v. Mirza Akhlaque Ahmad PLD 1974 Kar. 339.
7. "But the whole of Chapter XIX of the Code, consisting of 121 sections. Is devoted to the procedure in execution and it would be surprising if the framers of the Code had intended to apply another procedure, mostly unsuitable by saying in general terms that the procedure for suit should be followed as far as applicable. Their Lordships think that the proceedings spoken of in section 647 include original matters in the nature of suits such as proceedings in probates, guardianships, and so forth, and do not include executions". Thus the main reason for holding that the provisions of section 373 of the old Code did not apply to execution applications was that special procedure for execution application was provided in the Code for the conduct of the execution proceedings.
8. It will be seen that the decision in this case is consistent with the decision of the Privy Council in Thakur Prasad v. Fakirullah that the revision proceedings under section 115, C. P. C. Are not the original proceedings and since the provisions have been made in respect of appeal, and absence of provisions in respect of revision indicated that the other provisions of the Code are not made applicable to the revision application.
9. Now, the question before me is that if an application under Order XXXIX, rules 1 and 2, C. P. C. Is dismissed in default of appearance of the applicant whether the provisions of Order IX, rule 9, C. P.
10. C. Can be pressed into service to set aside such an order. No doubt, Order IX,rule 9, C. P. C. Applies to suits, but by virtue of the provisions of section 141, C. P. C. The procedure provided in the Code in regard to suits has to be followed as far as it can be made applicable in all proceedings in any Court of Civil jurisdiction. I am of the view that to an application of present nature the procedure provided in the Code can be applied as such applications though interlocutory. Are original in nature and would fall within the dictum of their Lordships of the Privy Council in Thakur Prasad v.
11. Fakirullah. In any case such applications form part of suits and the provisions of Order IX, C. P. C.
12. Have been applied to applications made under other provisions of the Code and dismissed in default. On the other hand Mr. Kaikobad referred to the decision in Premomal Daomal v. Khudabux and others AIR 1937 Sind 273. In this case an application under Order XXXIV. Rule 5. C. P. C. Made by the plaintiff was dismissed as the plaintiff had not paid the costs. Therefore, second application for the same relief was filed by the plaintiff. An objection was raised that the second application which was filed more than 3 years from the date the decretal amount was ordered to be paid by the preliminary decree was barred by limitation. It was held by Davis, C. J. Who have his opinion on difference between two Judges of the Court on the question whether the application made under Order XXXIV, rule 5, C. P. C. To have the preliminary decree made final could be dismissed on failure of the plaintiff to pay costs of process fee, that "the question then nest to be considered is whether it was competent to the Court on an application under Order XXXIV, rule 5 Civil P. C., to direct notice to be issued on the defendants. It is argued that if effective payment had been made; it would have had to be certified to the Court. And that, therefore, no notice was necessary, but in India particularly, where the danger of fraud is so great, it appears to me that justice and prudence both require that on an application made under Order XXXIV, rule 5, Civil P. C., notice to the opposite- party should usually issue, and it appears, to me that the learned Judge was right when he found that the Court had power to issue notice, that the order made was within jurisdiction and failure to comply with it entailed so far as the application was concerned, the consequences determined by the appropriate provisions of rule 4 of Order IX, Civil P. C. Reference may be made to AIR 1931 Mad.
795. Therefore, it appears to me the order of the Judge requiring notice to issue and the cost to be paid by the plaintiff was within the jurisdiction and that on failure to comply with its order the provisions of Order IX, rules 2 and 4, Civil P. C., read with section 141, Civil Procedure Code became applicable.
13. I bear in mind the words of limitation in section 141, Civil P. C. "As far as it can be made applicable", and have considered whether it would be proper to hold that the words exclude the application of LIZ provisions of Order XVII, and Order IX, to application made under Order XXXIV, rule 5, Civil P. C., because the rights and liabilities are fixed. But I do not think that justice or equity requires that I should do so. Once it is held that "a dismissal of an application under Order XXXIV, rule 5, Civil P. C., is not a dismissal of the suit, the plaintiff has three years to apply to the Court. Under Order IX, rule 4, Civil P. C., the plaintiff can bring a fresh application or apply to have the dismissal of his application set aside".
14. The second case which I would refer to is the decision of a Division Bench of this Court consisting of Noorul Arifin and Dorab Patel, JJ. Namely, Ahmad A.I v. Registrar. Cooperative Societies PLD 1971 Kar.
182. In this case an application for setting aside an order dismissing the suit itself was dismissed in default and application under Order IX, read with section 141, C. P. C. Was made for restoration of the previously made application. It was observed as follows :- "The cases we have referred to above and the cases which have been discussed in Muhammad Rab Nawaz v. Muhammad Sadiq show judicial consensus in favour of the view 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 under section 151, C. P. C. And absence in the Limitation Act of express provision for period of limitation for such applications should not stand as a bar to deprive a party of its remedy which is not expressly prohibited by the Code of Civil Procedure or by any other statute."
15. Thus the provisions of Order IX or section 151. C. P. C. Were applied to application made under other provisions of the Code.