BABII vs Mst. NIAZ BIBI

A revision petition (C. R. No. 1310/13;79) filed by the petitioner, Babu, against the respondent, Mst.

Niaz Bibi, was dismissed in default on 7th April, 1981, when none had appeared on behalf of the petitioner to pursue the petition. Mr. Laqa Haider Zaidi, learned counsel for the respondent, was, however, in attendance. On the same day, namely, 7th April, 1981, Mr. A. R. Shaukat, learned counsel for the petitioner, made an application for the restoration of civil revision which has been opposed by learned counsel for the respondent.

2. Learned counsel for the respondent contended that the petition for restoration of the civil revision was not competent. He relied on Messrs Ganisons Industries Ltd., Karachi v. Mirza Akhlaque Ahmed

(1) and A. Rama--murthi lyer and others v. T. A. Meenakshisundarammal and another (2) to support his contention. It was also urged by him that there was no sufficient cause for revival of the revision petition.

(1) P L-V 1974 Kar. 339(?) AIR 1945 Mad. 103 3., In reply, it was submitted by learned counsel for the petitioner that a revision petition dismissed in default could be restored if sufficient cause was shown for the non-appearance of the petitioner.

In this connection, he placed reliance on Municipal Committee Jhelum v. Maulvi Muhammad Shafi (1). Jan Muhammad v. Muhammad Asghar (2), Jiwani v. Bhagel Singh (3) and Syed Iqbal Hussain Shah v. Abdul Ghani and others (4). Reason given by learned counsel for the petitioner for his non- appearance before this Court, at the time when the civil revision was called on, was that he was busy before the Supreme Court. This, according to him, was sufficient cause for restora--tion of the civil revision.

4. As against this, it was submitted by learned counsel for the respon--dent that the cause shown by learned counsel for the petitioner did not justify restoration of the civil revision.

5. As for the authorities, cited at the Bar, on the question whether a civil revision dismissed in default can be restored in the case of Messrs Ghani--sons Industries Ltd., Karachi, relied upon by the learned counsel for the respon--dent it was held by the High Court of Sind that revision petition dismissed in default of appearance could not be restored by resorting to the provisions of section 151 of the Code of Civil .Procedure. Similar view was expressed in the case of A. Ramamurthi Iyer and others, which was also cited by learned counsel for the respondent. A contrary view was, however, taken in the authorities quoted by learned counsel for the petitioner. Out of these authorities, in the case of Municipal Committee Jhelum it was observed by the Supreme Court that when a revision application is dismissed, a fresh applica--tion as well as application for setting aside the dismissal order can be made. In the case of Jan Muhammad, it was held by the Supreme Court that a revision petition can be restored if sufficient cause is shown to justify its restoration. In Jiwani's case it was held by a Division Bench of the Punjab Chief Court that if a revision petition is dismissed in default, it can be restor--ed if sufficient cause is shown for setting aside the default. In the case of Syed 1qbal Hussain Shah, which related to the Displaced Persons (Compensation and Rehabilitation) Act, 1958, a revision petition was dismissed in default and it was held that the same could be restored. .The precise observations made in that case read as follows :-- "There are no provisions under the Act for the dismissal 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 what 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 appeals have been given power to restore a case dismissed in default when a 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. There was ample power for the review of the orders which were passed by aChief Settlement Commissioner according to the then existing provisions of section 21 of the Displaced Persons (Compensation anal Rehabilitation) Act, 1958."

6. In view of the precedent cases cited by learned counsel for the petitioner, especially the cases of Municipal Committee, Jhelum and Jan Muhammad, decided by the Supreme Court, it is not possible for me to follow the view expressed in the cases of Messrs Ghanisons Industries Ltd., Karachi and A. Ramamurthi Iyer and others, which were relied upon by learned counsel for the respondent. I am, therefore, in agreement with learned counsel fork petitioner that the revision petition dismissed in default can be restored if sufficient cause is shown for the default resulting in its dismissal.

(1) 1971 SCMR 740 (2) PLD 1981 SC 513

(3) 97 P R 1907(4) PLD 1967 Lah.633

7. Now I have to consider if the petitioner had sufficient cause for his absence from the Court on 7th April, 1981. It has been stated by his learned counsel that he was busy before the Supreme Court and, therefore, he could not enter appearance. There is affidavit of his clerk and that of an associate counsel to support his plea. There is no affidavit to the contrary. Petition for restoration of the revision petition was made on the same day when it was dismissed in default. Therefore, I accept the explanation offered by learned counsel for the petitioner and hold that he could not attend this Court due to his being busy before the Supreme Court. This, to my mind, is sufficient cause for his absence. '

8. Resultantly, I accept this petition and direct that the civil revision shall be restored to its original number. There shall be no order as to costs.