Law:

Section:

(a) Civil Procedure Code (V of 1908)-----0. IX, R. 4---Interpretation.The plain reading of the rule 4 of O.IX, C.P.C., 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. Had it been he 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 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 fairplay as well as the decision of lis after due trial, has to be adopted. (b) Civil Procedure Code (V of 1908)-- ----0. IX, R.4---Plaintiff-respondent is not barred to file a fresh suit after the dismissal of his application for restoration of the revision. Aziz Din v. Qadir Bakhsh PLD 1987 Lah. 119; Tulshi Singh and another v. Sheosaran Rai and others AIR 1926 All. 678 and Bhudeo v. Mst. Baikunthi 63 IC 239 ref. (c) Civil Procedure Code (V of 1908)-- ----0. IX, R. 4---Limitation Act (IX of 1908), S. 14---Period spent on seeking remedy for restoration of the revision as governed by S. 14, Limitation Act, 1908 would be excluded., If, 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 pf a fresh suit. The intention in this situation cannot be otherwise than bona fide. Accordingly, the period spent on seeking remedy for restoration of the Revision as governed by section 14 of the Limitation Act and the-same thus…

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