1991 PLP 551 (PLC(CS))

Bashir Awan for Respondent. Date of hearing: 4th October, 1989. This is an application requesting this Court to suo motu revise the order, dated 12-9-1989, passed by the learned Presiding Officer, Sindh Labour Court No. VI at Hyderabad by calling for R & Ps of Application No.19 of 1989 to examine the legality of the said order.

2. I have heard Mr. S.P. Lodhi, representative for the applicant.

3. It appears that Mr. Bashir Awan was appearing for-the respondent in the aforesaid grievance application but the later on informed the learned Labour Court that he had returned the brief to respondent for engaging another Advocate. A fresh notice was issued to the respondent on 27-5-1989 for appearing before the Court on 29-5-1989 but the respondent failed to appear. Consequently grievance petition proceeded ex parte and was allowed.

4. The main question raised by the learned representative for the applicant is that ex parte judgment was passed on 30-5-1989 whereas the application for setting it aside was moved on 31-7-1989 and that it was time-barred. On the point of limitation, the learned trial Court has relied upon the cases reported as P L D 1985 Karachi 691 (S. Mehmood Hyder v. Alliance Enterprises) and P L D 1986 Peshawar 81 (Water and Power Development Authority v. Mohammad Hayat Khan and others). In the peshawar case it was held that `in cases of applications for setting aside of the ex parte decrees other than those passed under Order IX, Rules 6(1)(a) C.P.C. the law of limitation shall be Article 181 of the Limitation Act which prescribes period of three years for filing such application. Ex parte order passed by learned trial Court was executable order and was passed due to the absence of the respondent therefore Article 181 would be applicable in the case.

5. In the Karachi case it was held that `setting aside of ex parte decree, not being a case of non-service of summons but of non-service of notice of an adjourned hearing, would fall to be disposed of under Order XVII, Rule 2, C.P.C. and provision of Article 181 and not 164, of the Limitation Act, 1908 would be relevant. Period of limitation, therefore, would be three years for setting aside such ex parte decree.' In this case also notice of adjourned hearing was sent to the respondent and only two days time was given for appearance. The learned trial Court held that the notice had not been served therefore the application would be deemed to have been moved within time. Prima facie there is no illegality in the order to call for exercise of suo motu revised power by this Tribunal. However, it will be open to the applicant to show by way of evidence during the course of the trial, that the notice had been served upon the respondent and raise the question of limitation.

6. With these observations this Revision Application is rejected in limine M.Y.H./1552/Lb.S Revision application rejected