P L D 1969 Lahore 1080 (PLP)

This is an appeal under‑ subsection (4) of section 12 of the Trade" Unions Ordinance, V of 1,968, against the judgment dated 21st September 1968, passed by the Chairman, West Pakistan Industrial Court, Central Zone, Lahore, whereby the appeal, against the order dated 18th May 1967, of the Registrar of Trade Unions, West Pakistan, Lahore (respondent) rejecting the application of the appellant in respect of its registration under the Trade Unions Act, 1926 was dismissed.

2. The facts, as stated by the learned counsel for the appellant at the Bar, are that the appellant Union was in existence when the 1962‑Constitution was promulgated. The subject of Trade Unions and Labour which, till then, was in the concurrent list under the 1956‑Constitution, was transferred to the Province. In April 1963, the respondent announced it, by a press‑note, that a fresh registration of the Trade Unions, coming under his jurisdiction, had become necessary because of the transfer of the subject to the Provinces. In pursuance of this press‑note, on 9th May 1963, the appellant made an application requesting the Registrar to recognize and continue the earlier registration of the Union and in case a fresh registration was necessary, to do the needful. On 18th May 1967, the respondent dismissed the application of the appellant referred to above, refusing to register the Union and at the same time showing inability to recognize its previous registration. It is claimed by the appellant that during the pendency of this application the appellant‑Union was recog nised as such, at least by conduct of the respondent; but that question is not relevant in the present appeal. The order passed by the Registrar on 18th May 1967, was conveyed to the Union through an endorsement thereof addressed to two persons, namely, Abdul Majid Khan and Abdul Ghafoor Sheikh As the latter was in jail, therefore, Mr. Hamid Hussain, claiming to be the President of the Union, filed an appeal before the Industrial Court of West Pakistan on 17th July 1967. It is stated at Bar that nothing was mentioned in the memo. of appeal as to whether it was being filed before the Court relating to Central Zone or Northern Zone; but it is admitted that it was, in fact, filed in the Northern Zone Court.

3. It is an admitted fact that the matters relating to railway were within the jurisdiction of the Central Zone Court by virtue of notification dated 27th January 1967. It was on 29th June 1968, that the appeal came up for hearing before the Industrial Court (Northern Zone). That Court held that it lacked jurisdiction. It was returned to the appellant on Ist July 1968, to be presented before the proper Court (Central Zone). It was on the same day that the appeal presented before the proper Court i.e. Central Zone Court. The learned Court after hearing the parties on some questions involved in the matter, dismissed the appeal as time‑barred.

4. It is agreed by both the learned counsel that if the time spent in filing and prosecuting the appeal before the Court of Northern Zone is excluded, the appeal before the Court of Central Zone will be within limitation. In this connection, the learned Chairman of the Court observed that the appeal being creation of a special statute, section 29 of the Limitation Act barred the application of section 5 thereof. He was at first under the impression that section 14 of the Limitation Act, which provided for exclusion of time of proceedings in a Court without jurisdiction, might be applicable; but he ultimately found that the said provision did not apply to appeals and, therefore, the appellant could not take benefit thereof and thus the appeal was dismissed as time‑barred. Reliance was placed on Brij Indar Singh v. Kanshi Ram (I L R 45 Cal. 94 (P C)) and M. M. Watkins and others v. N. Fox and others (I L R 21 Cal. 943). The learned Chairman has mentioned the report incorrectly as A I R 1915 Cal. 94 (P C) and A I R 1922 Cal.

247. In fact, they are not A I R reports. The correct reports. have already been mentioned above.

5. The learned counsel for the appellant has raised the following contentions:‑ (i) that section 14 of the Limitation Act was applicable to the appeal before the learned Court because under the Trade Unions Act the appeal was to be treated as a suit; (ii) that for the purpose of Trade Unions‑ Act there is no bifurcation of the West Pakistan Industrial Court into Northern and Central Zones ; and that it was only for the purpose of Industrial Disputes Ordinance, 1959, that the bifurcation was relevant; therefore, the pendency of the appeal before the Court of any Zone will be a pendency before the relevant Court under the Trade Unions Act; (iii) that though section 5 of Limitation Act is not applicable to the case yet the principles of that provisions are fully attracted ; (iv) that at one time, the appeal was pending before the Court of Central Zone because the work of both the Zones was entrusted to that Court alone. It was on a subsequent stage that the appeal was sent to the Court of Northern Zone without any initiative of or request by the appellant. There fore, the appellant cannot be penalized for the act of the Court ; and lastly, (v) that the order passed by the Registrar was a nullity. Therefore, no period of limitation will run against the appel lant, who could, in the circumstances, ignore that order.

6. The appeal before the Industrial Court was filed under section 11 of the Trade Unions Act, 1926 which reads as follows:‑‑ "Appeal 11.‑(1) Any person aggrieved by any refusal of the Registrar to register a Trade Union or by withdrawal or cancellation of a certificate of Registration may appeal to such Industrial Court, constituted under the Industrial Disputes Ordinance, 1959, hereafter in this section referred to as "Appellate Court", within such period, as may be prescribed. (2) (3) For the purpose of an appeal under subsection (1) ale appellate Court shall so far as may be, follow the same procedure and have the same powers as it follows and has when trying suit under the Code of Civil Procedure, 1908 (V of 1908); and may direct by whom the whole or any part the costs of the appeal shall be paid, and such costs shall be recovered as if they had been awarded in a suit under the said Code. (4) .. It is evident from subsection (3) of section 11 that while dealing with an appeal under subsection (1), the Court shall, so far as may be, follow the same procedure and shall have the powers as if it was trying a suit under the Code of Civil Procedure; and that the costs awarded in appeal shall be paid and shall be recovered as if they have been awarded in a suit. It means, that the hearing of an appeal under subsection (3), for all practical purposes is like the trial of a civil suit. 'Therefore, in respect of such an appeal it cannot be held that it is an appeal in the ordinary sense of the word. One of the reasons, why the appeal was to be treated as a suit is; that the order of the Registrar, against which the appeal was provided, by its very nature, was to be an executive/administrative order. It was for the first time, after that order, before the appellate Court that the parties as could pursue the case in accordance with the ordinary procedure laid down for determination of disputes of civil nature. Therefore, the Court was empowered to treat the matter a suit and follow the procedure Mil down in Civil Procedure Code as if it was a suit. It follows from the above reasoning that the appeal under section 11 before the Court will also have to be treated as a suit.

7. Subsections (1) and (2) of section 14 of the Limitation Act read as follows:‑‑ "(1) In computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prose

Court of first instance or in a Court of Appeal, against the defendant, shall be excluded, where the proceedings is founded upon the same cause of action and is prosecuted in good faith in a Court which, from defect of jurisdiction, or other cause of alike nature, is unable to entertain it. (2) In computing the period of limitation prescribed for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court of Appeal, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a Court which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it." Subsection (1), evidently applies to suits. The word "suit" mentioned in subsection (1) of section 14 is, to my mind, not used in any restricted sense, and will include the proceedings which are appeals in form, but are either deemed to be, or are C to be treated as suits. In this connection, the learned Assistant Advocate‑General appearing on behalf of the respondent, brought to my notice the definition of suit in section 2 (10) of the Act. It provides that suit does not include an appeal or an application. But that definition has to be read in the context of the particular subject under discussion. In this case, as already held, the controversy cannot be resolved without reference to section 11(3) of the Trade Unions Act. It is clear that by virtue of that provision, in this case, the appeal is to be treated as a suit under the Civil Procedure Code; and is thus covered by section 14 (1) of the Limitation Act.

8. In the light of above discussion, subsection (1) o section 14 of Limitation Act being applicable to the case the time spent before the Industrial Court of Northern Zone will have to be excluded. It is noted that both the learned counsel agreed that the other conditions mentioned in section 14 have been fulfilled in this case.

9. There is another aspect of the matter. Subsection (2) of section 14 applies to applications: There is ample authority for the proposition that this subsection is applicable to the revision petitions also: In Abdur Rashid and another v. Muhammad Hafeez and another (P L D 1963 Lah. 414) an appeal was treated as revision and provisions of subsection (2) of section 14 were made applicable. The learned counsel for the appellant also cited Ghulam Muhammad v. Ali Siraj (P L D 1964 Lah. 15) wherein the provisions of section 14 were invoked in a second appeal before the High Court.

10. It may be noted (with appreciation of fairness) that Mr. Dilawar Mahmood, the learned Assistant Advocate‑General, cited the cases for and against the proposition that section 14 was applicable to appeals also. The cases cited in support of the proposition are Rahat Ullah Khan and others v. Ibadullah Khan (18 I C 92), Purna Chandra Chattopadhya v. Mabub Bakhsh and others (A I R 1923 Cal. 291 (1)), Maula Bakhsh v. Udham Singh (A I R 1928 Lah. 136), Raja Jagdambika Pratap Narain Singh v. Sitla Bux Singh (A I R 1943 Oudh 52) and the case of Ghulam Muhammad v. Ali Siraj already noticed. The cases cited against the proposition are Beni Singh v. Barhamdeo Singh (28 I C 211), Balwant Singh and another v Gumani Ram (I L R 5 All. 591), Sudama Rai and others v. Bisheshar Prasad and others (A I R 1935 All. 92); M. M. Watkins and others (I L R 22 Cal. 943) and Brij Indar Singh v. Kanshi Ram (I L R 45 Cal. 94). It is to be noticed that in most of the cases where it was held that section 14 was not applicable to appeals, the principles therein were made applicable by invoking the provision of section 5 of Limitation Act. For further reasons, which hereinafter follow, I would prefer the rule laid down in the rulings cited for the proposition and hold that section 14, by its own force, is applic able to appeals also.

11. The above conclusion is also reached by another line of reasoning. The word "appeal" has not been defined in the Limitation Act. The question as what is meant by "appeal" came up for consideration before the Privy Council in Nagendra Nath Dey and others v. Suresh Chandra Dey and others (59 I A 283). While explaining the expression "an appeal" as used in Article 182 (2) of imitation Act, their Lordships of the Judicial Committee were pleased to observe as follows:‑ There is no definition of appeals in the Code of Civil Procedure, but their Lordships have no doubt that any application by a party to an appellate Court, asking it to set aside or revise a decision of a subordinate Court, is an appeal within the ordinary acceptation of the term . . . . . Putting it in other words, the principle, enunciated in the above observation, is that an appeal in reality is an application to the appellate authority for seeking a redress against the decision T appealed against. When looked at from the above angle, the word "application" as used in section 14 (2) of the Limitation Act, it seems, also includes an application by way of appeal. This undoubtedly is a broad way of construction. But such in approach for the interpretation of the statute of limitation, ands support from the ruling of their Lordships of the Supreme Court in the case of Tahir Ali and others v. Chief Judge, Karachi Small Causes Court and another (P L D 1963 S C 147). This was a case under the Karachi Rent Restriction Act, 1953, which provided for a remedy in revision instead of an appeal against certain orders. While considering the use and application of word "appeal" in section 12 (2) of the Limitation Act, it was held that this word will have to be construed in a broad sense so as to include a revision application also. It is of advantage to quote here some of the observations of their Lordships:‑ " Upon construction of the word `appeal' used in section 12 (2) there has been divergence of judicial opinion. Some of the Courts in India adopted a restricted construction of the word `appeal' and laid down emphatically that it does not include revision. On the other hand some of the Courts construed the expression in a broader sense. There is however, plainly no such preponderance in either direction so as to render it clear that there is any settled course of decisions on this question. The word `appeal' has not been defined in the Code of Civil Procedure. In Wharton's Law Lexicon `appeal' has been defined as "The Judicial examination of the decision by a higher Court of the decision of an inferior Court". In The Attorney‑General v. H. J. Sillem and others 11 E R 10 H L C 703 Lord Westbury described an appeal in these terms "An appeal is the right of entering a Superior Court and invoking its aid and interposition to redress the error of the Court below." Story in his work on the Constitution (Vol. II) has pointed out that the characteristic of an appeal is a revision of a judicial proceeding of an inferior Court so that the mode in which the power is exercised is wholly immaterial." After discussing some peculiar features of the case before their Lordships, it was held as follows:‑ "For the reasons stated above, we are of the opinion that the word `appeal' occurring in section 12 (2) should be construed in a broad sense so as to include a revision under the Karachi Rent Restriction Act, 1953." As stated earlier, if a broad construction is placed on the word `appeal', this case would be covered by section 14 (2) of Limitation Act.

12. In the light of the above discussion, I am of the view that the provisions contained in subsection (1) as well as sub section (2) of section 14 of the Limitation Act are attracted to the present case. Therefore, the appeal before the learned Industrial Court, Central Zone, was not barred by limitation. In view of this decision on the first contention, it is not necessary to discuss the others.

13. Before closing the judgment in this case, it may be noted that when this appeal was fixed for regular hearing, one Mr. Aftab Rabbani, claiming (at present) to be the President of the appellant‑Union, made an application stating that he should be allowed to be made a party and the appeal be adjourned. The learned counsel appearing for the appellant opposed this application and filed a reply. On asking from Mr. Aftab Rabbani whether he opposed the appeal or he wanted the appeal to proceed, his reply was that he wanted this appeal to proceed and also that, according to him, it should be accepted. In view of the fact that the application was made at a very late stage and also for the reasons that he also wanted the appeal to succeed, I did not think it necessary to implead him as a party but allowed him to state what he wanted to say. He then made a lengthy statement; which, in nutshell, meant that Mr. Abdul Gbafoor Sheikh who till this time had pursued this appeal, was not the Secretary of the Union and that he could prove this by documentary evidence. On the contrary, Mr. Abdul Ghafoor Sheikh, who was present in Court, contested this assertion and further alleged that Mr. Aftab Rabbani was not the President of the Union. This controversy, to my mind, essentially relates to something internal to the appellant‑Union and has no effect on this appeal. This is particularly so when the respondent has not objected to the form and manner of filing of this appeal. Therefore, I refrain from making any comment on the issue raised by Mr. Aftab Rabbani. Any interested person, or for that matter any aggrieved party, qua the above internal issue, if so advised, may have his recourse, under the law, to proper forum for redress. With the above remarks and the findings given earlier, I accept the appeal and remand the case to the Court concerned for fresh decision, treating the appeal before it as within time. There shall be no order as to costs. S. A. H. Appeal accepted.