' This is a revision against the order dated 6-6-1977 of Punjab Labour Court, No, 1, Lahore.
2. Mohammad Sharif and five others, respondents, who were represent.. Atives of workmen of Sartaj Industries Limited, raised an industrial dispute by giving a strike notice on 7-9-1963. Failure certificate was issued on 20-9-1963 by the Conciliator. Thereafter, a petition under section 5(5) of Industrial Disputes Ordinance, 1959 was filed on 11-10-1963. An award was given on 16.12-1964, which was valid for one year.
3. On 9-10-1974 Mohammad Sharif filed a petition under section 51 of Industrial Relations Ordinance, 1969, praying that the amount due under the Award be computed in terms of money and the amount at which such benefits shall be computed be determined and the recovery be made under section 51(1) of Industrial Relations Ordinance, 1969 as arrears of land revenue or as a public demand.
4. The above petition was dismissed in default on 15-7-1975. Thereafter, Muhammad Shard filed another petition under section 51 of Industrial Relations Ordinance, 1969 on 9-9-1975. This petition was also dismissed in default on 24-2-1976. On 3-3-1976 Mohammad Sharif filed an application for restoration of the petition, which was dismissed in default on 24-2-1976. On 14-9-1976 Mr. Abdul Majid Qureshi, representative, of Mohammad Shari! And five other respondents made a statement that he did not wish to produce any evidence in support of his application for restoration. The counsel for the petitioner also made a similar statement. The case was then fixed for arguments and kept on being adjourned on three dates 1. e. 2(-10-1976. 30-11-1976 and 13-1-1977. On 13-1-1977 the counsel for Mohammad Sharif and five other respondents filed an application, praying that they be allowed to produce evidence in support of the restoration application. The Labour Court allowed that request and finally restored the second petition, which was dismissed in default on 24-2-1976.
5. Aggrieved by the above order, Managing Director, Sartaj Industries Limited, petitioner has prefer red this revision.
6. The learned counsel for the petitioner contended that when a petition has already been dismissed in default, the second petition on the same subject was barred in view of the prevision of Order IX, rule 9 and section 10, C. P. C.
7. Under .Order XXIII, rule 1, if the Court is satisfied that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of a claim. l
8. In the instant case since the respondents did not file any application for the restoration of the first petition under section 51, which was dismissed in default on 15-7-1975, it means that they had ahandoned their clam si in terms of Order XXIII, rule 1(3), C. P. C.
9. In the case of Mohammad Khan and others v. Ms:, Nekan and others it was observed that a subsequent suit, if effect the same as previous suit but claiming a relief different from the previous suit dismissed for default under Order IX, rule 8 is barred by Order IX, rule 9, C. P. C.
10. In the case of Surat Rattan Thiranl and others v. Azamabad Tea Co. Ltd. And others it was observed :- "Order IX, rule 9 of Civil P. C. Precludes a second suit in respect of "the same cause of action" where the first suit is dismissed for default of appearance of the plaintiff. In considering whether the cause of action in the subsequent suit is the same or not, as the cause of action in the previous suit, the test to be applied is, "are the causes of action in the two suits in substance and not technically identical. Thus, the term "cause of action" is to be construed with reference rather to the substance than to the form of action."
11. In the case of Mohammad Khalil Khan and others v. Mahbub All Mlan and others it was held that when the causes of action in the two suits are the same and evidence supporting the two claims is the same, the new suit is barred under Order II, rule 2, C. P. C.
12. The learned counsel for the respondents, on the other hand, contended that a petition under section 51 of Industrial Relations Ordinance, 1969 was in the nature of execution proceedings and if the execution application is dismissed in default, then a decree-holder may either file an application for the restoration of the proceedings or a fresh application. In support of his contention he relied on the judgment in the case of Dhonkal Singh v. Fakkar Singh and others, wherein it was observed - "When an order is made striking an execution case off the file of pending cases, or dismissing it on grounds other than a distinct finding that the decree is incapable of execution, that the decree- holder's right to get the decree executed is barred by limitation, or by any other rule of law, or on some similar ground on which the application has clearly been dismissed on the merits, whether the word "dismissed" or the words "struck off the file", or any other similar words have been used in the order, the decree-holder is not barred by the force of any such order from presenting and prosecuting a fresh application for the execution of his decree." .
13. There is no dispute about the proposition laid down in the aforementioned ruling cited by the learned counsel for the respondents, but the point for determination is as to whether a petition under section 51 of Industrial Relations Ordinance, 1969 is in the nature of execution proceedings. In the execution proceedings under the Code of Civil Procedure, the executing Court has not to determine the amount of the decree,, which has already been determined by the Court, which had passed the decree. In the instant case the petition under section 51 was for the computation of the1 2 3 4 benefits given under the Award in terms of money and their recovery as arrears of land revenue.
This shows that the amount had to be determined by the Labour Court and as such it cannot be said that a petition under section 511 was in the nature of execution proceedings.
14. The learned counsel for the respondents also contended that no revision lies against the order passed under Order IX, rule 9, C. P. C. In support of his contention he relied on the judgment in the case, Pannz Lal v. Basdeo. The facts of the above case were that a suit for profits against the Lambardar was adjourned on several occasions. On one of such adjourned hearings the Assistant Collet for dismissed the suit for "want of prosecution". The Assistant Collector did not make any reference in that order to the evidence that had already been produced in the case, nor did he deal with the validity or otherwise of the defence raised by the contesting defendant's. It was held: that such a decision could not be characterized as a decision on the merits. The suit therefore did not come within the purview of 0. XVII, rule 3, but was one under O. IX, r. 8 of the Code, and could be set aside by the Assistant Collector under 0. IX, rule 9 or under the inherent jurisdiction vested in Courts by S.
151. In either case the order was not appealable to the District Judge and therefore section 253, Tenancy Act, had no application to the case. No revision, therefore, lay to the High Court.
15. The above ruling cited by the learned counsel is not applicable to the instant case, because in view of section 38 (3-a) of Industrial Relations Ordinance, 1969. The Tribunal, may, on its own motion at any time, call for the record of any case or proceedings under this Ordinance in which a Labour Court within its jurisdiction has passed an order, for the purpose of satisfying itself as to the correctness, legality, or propriety of such order, and may pass such order in relation thereto as it thinks fit.
16. In view of the above section the Tribunal has an inherent right to revise any order passed by a Labour Court. The contention of the learned counsel, therefore, has no force.
17. In view of the above discussion I hold that the second petition under section 51, filed on 9-9-1975, which was restored by the Labour Court vide order in revision was barred in view of Order X, rule 9 and section 10, C. P. C.
18. I, accordingly, accept the revision, set aside the order of the Labour Court and dismiss the second petition under section 51 of Industrial Relations Ordinance, 1969 filed by the respondents. AIR 1926 Lah. 562 AIR 1965 SC 295 PLD 1948 P C 131 I L R 15 All. 84 AIR 1933 All, 118