'ABDUL GHIAS NOUSHERWANI (MEMBER).--- The applicants/appellants assailed the order dated 14- 4-2014 wherein the application under section 41 of BIRA, 2010 was dismissed for nonappearance of applicants/counsel whereof an application under Order IX, Rule 9 was filed for recalling of order dated 14-4-2014 which was dismissed on 3-7-2014.
2. For disposal of instant appeal the short facts are that the appellants/ applicants filed application under section 41 of BIRA, 2010 for regularization of their services which was contested by the respondents on factual and as well as on legal grounds raised an objection with regard to jurisdiction which was rejected by the learned Labour Court. Against which an appeal was filed before this Tribunal resultantly the decision/order of learned Labour Court was upheld. The judgment of this Tribunal has been challenged before honorable High Court of Balochistan according to learned counsel of the parties the same is still pending. However after keeping the matter in pending the Trial Court started proceedings. The appellants and respondents were directed to produce the order of honorable High Court of Balochistan and this proceeding has been carried out for a long period and ultimately on the statement of counsel for respondent regular proceedings started on 19-6-2013. On 14-4-2014 the application of appellants/applicants was dismissed for non-appearance and for recalling of the order an application under Order IX, Rule 9 of C.P.C. Was brought before learned Labour Court and after hearing the counsel of the parties the same was dismissed. Hence this appeal.
3. The learned counsel for appellants/applicants submitted that case was kept in pending on the statement of learned counsel for respondent though not produce any stay/suspension order of honorable High Court of Balochistan. Again after considerable time the regular proceedings were started also on the statement of learned counsel for respondent. Secondly contended that Order VII, Rule 11, C.P.C. Is not applicable in Labour matterrs, Thirdly contended that the Learned Labour Court wrongly assumed that grievance petition was dismissed under Order XVII, Rule 3, C.P.C.
Finally contended that on the relevant day the counsel for appellants/applicants was very much present in the court however during the pendency of matter he was summon in another court.
Therefore the absence of appellants/applicants was not intentional. The learned counsel for respondents while supported the orders impugned contended that since filing of grievance petition the applicants and their counsel remained absent and not produced evidence which shows lack of interest to proceed with the matter. Next contended that since filing of grievance petition the same was dismissed for three times. Lastly contended that the grievance petition was dismissed under Order VII, Rule 3 which is not appealable. In support of his above contention he referred a reported judgment 2013 M LD 782.
4. The Learned Labour court dismiss grievance petition with the following observation, "The request of counsel for respondents is in accordance with law, because the case file is showing the facts in this regard. I therefore without any hesitation do dismissed the petition filed by petitioners under section 41 of Balochistan Industrial Relation Act, 2010, in non interest at 1:40 PM"
5. The appellants/applicants submitted an application under Order IX, Rule 9, C.P.C. For recalling of aforesaid order on the ground that the counsel was present in the court but at the relevant time he went to attend another court but Learned Labour Court dismissed the said application with the following observation at Para No,14, "In the aforementioned situation and keeping in view the definition of Order XVII, Rule 3 and Order IX, Rule 9 of C.P.C., it has become crystal clear that the petition was not dismissed simply in default and it has been dismissed in non interest, which is provided under Order XVII, Rule 3 of C . P. C."
' While concluded the order it has been observed as under at Para No,16.
"The result which comes out of all the discussion, position and facts is that the application filed by the applicants-petitioners through their counsel under Order IX, Rule 9 of C.P.C. Is not maintainable, therefore, dismissed accordingly."
6. Now it is to be seen whether Order XVII, Rule 3 of C.P.C. Was applied in correct sense or otherwise.
7. The honorable Apex courts given guidelines to invoke provisions of Rule 3, Order XVII of C.P.C. And laid down the following condition, "(i) adjournment must have been granted to the party at his request;
(ii) it must have been granted to it for the purpose mentioned in the rule;
(iii) the party who has taken the time, defaulted in doing the act for which he took the time from the Court;
(iv) the party must be present or deemed to be present before the Court;
(v) that there must be some material on record for decision of the case on merits; and
(vi) that the Court must decide the suit forthwith that is within a reasonable time."
The honorable Supreme Court of Pakistan in a reported judgment 1969 Supreme Court 670 discuss the same as under, "There is a distinction between Rr.2 and 3 of O.XVII and it lies in this that R.2 would be attracted to a case where the adjournment has been granted generally for one of the purposes mentioned in that rules but where the entire evidence has been recorded and the case is posted only for the hearing of arguments, the more appropriate rule to follow would be R.3 and not R.2."
' Again in another judgment PLD 1986 Supreme Court 129 held, "To sum up, R.3 of O.XVII of the Code applies to a case where time has been granted to a party at his instance to produce evidence, or to cause the attendance of witnesses or to perform any other act necessary for the progress of the suit and will not apply unless default has been committed by such party in doing the act for which the time is granted."
' In another reported judgment 2009 CLC 343 it is a held, "Penal action can be taken against a party for non-production of evidence, when time was sought by him on previous date for such purpose and then failed to do so on next date of hearing."
8. Admittedly the proceedings of matter were kept in pending from 17-10-2012 on the ground that the order of this Tribunal has been challenged before honorable High Court of Balochistan. The operative portion of order sheet dated 17-10-2012 is reproduced, "In view of aforesaid averments the case is being kept pending till decision of the Hon'ble High Court."
9. Record reveals that after above mentioned order proceedings were started on 19-6-2013 and the counsel for the parties were directed to produce the copy of the order of honorable High Court of Balochistan for the guideline of the court. The order sheets further revealed that this proceeding was continued till 12-9-2013 and on said date the case was next fixed for framing of issues for 7-10- 2013. It will be worthwhile to mention here that issues were already framed on 8-3-2012 and list of witnesses of appellants/applicants was submitted along with an affidavit of attorney of appellants/applicants and the representative of TCS was summoned by the Court and both witnesses according to order sheets of learned Labour Court were present but their statement could not be recorded on one pretext or other.
10. On 7-10-2013 the grievance petition was dismissed in default which was restored by means of order dated 25-2-2014. On 19-3-2014 the matter was fixed for evidence of appellants/applicants and arguments, for 3-4-2014 the order reads as under, "Counsel for petitioners Mr. Hayat Mengal Advocate and counsel for respondents Mr. Ulas Yar Advocate present. The petitioner is directed to bring the evidence on next date of hearing, while the counsel for respondents is directed to produce the progress of the petition pending before the honorable. High Court of Balochistan on next date of hearing. To come for evidence and arguments on 3-4-2014."
11. Record further reveals that on 3-4-2014 no proceedings initiated due to strike of lawyers and case was fixed for 14-4-2014. On that date due to absence of counsel and evidence of the appellants/applicants the grievance petition was dismissed in aforementioned manner.
12. Now in view of observations and guidelines of honorable apex Courts mentioned herein above the orders dated 14-4-2014 and 3-7-2014 impugned here in has been passed contrary to above mentioned guidelines of the apex Courts for the reasons Firstly, the time has not been sought by the appellants/applicants nor the Court granted him last and final opportunity and the time was not granted against a cost, secondly no evidence was recorded. Meaning thereby no material was available before the learned Trial Court. It is evident from the above-mentioned record that after starting proceedings in the matter that was the first chance for producing the evidence because on next date no proceedings initiated due to strike of lawyers and on that date the case was dismissed under Order XVII, Rule 3, C.P.C. Which according to guidelines of apex Courts with regard to application/action under Order XVII, Rule 3 is not attracted.
13. In view of the guidelines of apex Court, order sheets and orders impugned dated 14-4-2014 fall under Order IX, Rule 8 of C.P.C. And the remedy was available under Order IX, Rule 9, C.P.C.
14. The learned counsel for respondents referred a reported judgment 2013 M LD 782 which is not useful to him for the reason that firstly in referred authority the suit was dismissed on 6-9-2009 but restoration application was filed an 3-10-2011 almost after two years along with an application under section 5 of Limitation Act wherein sufficient cause has not been mentioned. Therefore restoration of suit was declined. Secondly the referred matter was a suit under Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001) therefore not attractive in the matter. The learned counsel for appellants/applicants referred 1998 PLC 464, underreported judgment of honorable High Court of Balochistan NLR 2012 Civil 663 and an order of honorable High Court of Balochistan in Civil Revision No,174/2012. All above cited orders/judgments pertained to applicability of Order IX, Rule 9 of C.P.C. For restoration of suit.
15. What has been discussed and referred hereinabove clearly indicate that the order impugned wrongly passed under Order XVII, Rule 3 of C.P.C. While it was a case of Order IX, Rule 8 and remedy was very much available under Order IX, Rule 9. Particularly when neither time for producing evidence was sought by appellants/applicants nor it was granted as last and final opportunity and mainly on one hearing of the matter the impugned order passed.
16. In view of above discussion impugned orders dated 14-4-2014 and 3-7-2014 passed by 1st Labour Court Balochistan Quetta are set aside. Appeal is partly allowed matter is remanded to the Trial Court for proceedings and decision on merit strictly according to law and procedure. Under the circumstances of the case the parties are left to bear their own cost.
17. The copy of order along with original record of trail Court be sent to trial Court. Case after completion be consigned to record.