1989 PLP 608 (MLD)

The brief facts leading to the filing of the above revision are that the respondent No. 1 filed aforesaid Suit No. 1161 of 1987 for declaration and permanent injunction, whereby it had prayed for the following relief; Prayer: In the light of the above‑mentioned facts and grounds, it is prayed that this Hon'ble Court may be pleased to declare:‑ (a) that nomination of the alleged office‑bearers of plaintiff's union by defendant No. 1 and approved by defendant No. 2 vide letter dated 8‑8‑1987 (Annexure‑F) to the plaint is illegal, ultra vires, void ab initio, inoperative and not sustainable; to declare the letter dated 8‑8‑1987 (Annexure‑F) to the plaint issued by defendant Nos. 1 and 2 as illegal, issued without any lawful authority, null and void and to stay the operation of the said letter permanently. It is further prayed:‑ (b) That this Hon'ble Court may be pleased to restrain the defendant No. 5 to accept the letter dated 8‑8‑1987 (Annexure‑F) issued by respondent Nos. 1 and 2 and not to allow the alleged nominated office‑bearers as mentioned in letter dated 8‑8‑1987 (Annexure‑F) to represent the workers and members of the plaintiff's Union before respondent No. 5 and to decree the suit accordingly.

3. It seems that before filing of any written statement the present applicant filed an application under Order VII Rule 11, C.P.C. which was allowed by the learned Civil Judge, Karachi by his aforesaid order dated 10‑11‑1987, whereby he rejected the plaint of the suit on the ground that the Labour Court or Industrial Relations Commission has the jurisdiction in the matter. Against the above order respondent No. 1 filed aforesaid Civil Appeal, which was allowed by the learned IInd Additional District Judge East, Karachi by the aforesaid order dated 16‑12 1987. The applicant being aggrieved by the above order has filed the present revision.

4. In support of the above revision Mr. Mirza Muhammad Kazim, learned counsel for the applicant has vehemently urged that in terms of section 8(7) read with section 22‑B(4)(b), the subject‑matter of the suit was within the exclusive jurisdiction of the N.I.R.C. In furtherance of his above submission, he has referred to the case of Abdul Aziz Memon v. Registrar, Trade Unions (1984 PLC 67) in which a learned Single Judge allowed the revision application filed by the appellant and rejected the plaint under Order VII rule 11, C.P.C. on the ground that the dispute related to the office of Union. It was also contended by Mr. Mirza Muhammad Kazim that the respondent No. 1 has no locus standi to file the suit as they are not the office‑bearers of the Central body. On the other hand Mr. Suleman Habibullah, learned counsel for the respondent No. 1 has contended that the definition of the Trade Union given in clause (xxvi) of section' 2 of the Industrial Relations Ordinance does not include a regional or Divisional Union as they cannot enter into any settlement as to impose any restrictive condition on the conduct of the employers and the employees. In other words, neither the Labour Court nor the N.I.R.C. has any jurisdiction in the matter. In furtherance of his above submission he has referred to the case of Muhammad Soomar and others v. N.I.R.C. an I others (1987 PLC 782), in which incidently the learned counsel for the applicant Mr. Mirza Muhammad Kazim has according to him, urged contrary to what has been contended by him today. Be that as it may, he has submitted that in any case for the purpose of Order VII rule 11, C.P.C. the averments contained in the plaint are to be taken as correct and nothing mentioned in the application or affidavit filed by defendant can be looked into.

5. After having heard the learned counsel for the parties, I am of the tentative view that the question, whether the suit is barred by the provisions of the Industrial Relations Ordinance is not free from doubt and at this stage I would not like to decide the above question. In my view, since the learned Additional District Judge has remanded the case to the learned Senior Civil Judge for proceeding with the suit, it will suffice to observe that the question of jurisdiction is to be decided afresh by the learned Civil Judge after the filing of the written statement and in case of need after the recording of the evidence. With the above addition and modification, the order of the learned Additional District Judge is maintained. The revision stands disposed of in the above terms with no order as to costs. H.B.T./S-322/K Order accordingly.