DECISION This is a revision application against the order of the learned Presiding Officer, Sindh Labour Court No, IV at Karachi, dated 1-10-1989, whereby he dismissed the application of the applicant for restoration of his grievance petition, which was dismissed on 7-1-1989 for default.
2. I have heard Mr. Sohail Hameed, Advocate for the applicant and Mr. M. Shaiq Usmani, Advocate for the respondent and have gone through the record and proceedings of the case.
3. The admitted facts appear to be, that the grievance petition filed by the applicant was dismissed on 7-1-1989. He filed application for restoration on 8-8-1989. The reason given by him for non- appearance as well as for the making application after such a long time was, that he had gone to his home town, where he stayed to repair the house, which was damaged due to floods. In first week of February, 1989 he came to Karachi, but he was attending his sick mother, who expired on 28-4-1989.
4. The contention of the learned counsel for the applicant is that the learned trial Court instead of dismissing the grievance petition, should have pronounced judgment as required under Order 17, Rule 3 of C.P.C. It appears that on the date of hearing, the learned counsel for the respondent was present whereas, the counsel for the applicant and the applicant were not present. The matter was fixed for evidence of applicant on various dates of hearing and lastly it was fixed on 2-1-1989, when it was adjourned at the request of the Counsel for applicant to 7-1-1989, It may be pointed out that under Order 17, Rule 3, C.P.C., the Court 'may' proceed with the case to decide the matter when plaintiff fails to appear. The word 'may' used therein confers discretion on the learned Court either to proceed with the case to pronounce the judgment, or may adjourn the case. However, under Order 9, Rule 8, C.P.C. where the plaintiff does not appear but the defendant appears when the suit is called for hearing, the Court shall make an order that suit may be dismissed. The learned trial Court has chosen to pass order under Order 9, Rule 8 and there appears to be no illegality in passing such order.
5. For restoration of such dismissed suit an application under Orders VIII and IX has to be made within 30 days under Article 163 of Limitation Act. The contention of the learned Counsel for the applicant, that Article 181 would apply is not tenable as Article 163 specifically deals with applications of this nature.
6. It is submitted by the learned counsel for the applicant that the applicant has shown sufficient cause for non-appearance on 7-1-1989, as well as for his making application for restoration after the period of 30 days had expired. The applicant's contention that in January he went to his home town to repair the house which was damaged due to floods does not appeal to reason. In Pakistan floods occur in summer season and not in winter season. However, even if the contention of the applicant is accepted, that flood did come and he had to stay to repair his house, still admittedly he came to Karachi in the first week of February, which means that he had come to Karachi within 30 days of the passing of the order of the dismissal. He contends that he could not contact his Advocate due to illness of his mother who subsequently died on 28-4-1989. It does not satisfactorily explain why the applicant could not have taken time to find about the case either from the Court or from the Advocate at Karachi. Even if this contention of the applicant is accepted, then also it can explain delay in making application upto 28-4-1989, but the application has been filed after 3-1/2 months of this date for which there is no explanation. The application for restoration was hopelessly time-barred. It is always duty of the litigant to pursue his case diligently.
7. It is contended by the learned counsel for the applicant that I.R.O. does not provide any limitation for filing restoration application. In fact there is no provision in I.R.O. even for moving restoration application. However, in practice the aid of Civil Procedure Code is taken for moving such application, therefore, the period prescribed for moving such application would be applicable to the application for restoration of the grievance petition. It may also be pointed out that the provisions of section 5 of Limitation Act have been specifically mention applicable under section 65-B of I.R.O., 1969. However, even application under section 5 of Limitation Act has not been moved for condoning delay in moving restoration application. I find no merit in this application. The application is accordingly dismissed.