1978 PLC 207 (PLP)

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. There after, Muhammad Sherif 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 Sharif 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 i. e, 21‑10‑1976, 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 Injultrie8 Limited, petitioner has preferred 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 provision 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 ground for allowing the plaintiff to institute a fresh suit or the subject‑mattes of a suit or part of a claim, it may, on such terms as it think 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.

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 abandoned their claim in terms of Order XXIII, rule 1(3), C. P. C. .

9. In the case of Mohammad Khan and others v. Mist. Nekan and others (A I R 1926 Lah. 562) 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 Suraj Rattan Thirani and others v. Azamabad Tea Co. Ltd and others (A I R 1965 S G 295) 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 a the same or not, as the cause of action to 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 Khailil Khan and others v. Mahbub Alt Mean and others (PLD1948PC 131) 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 it 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. Phakkar Singh and others (I L R 15 All. 84), 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 tight to got 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 beets 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 sue afore mentioned 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 cue the petition under section 51 was for the computation of the 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 51 was 1n 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 hit contention he relied on the judgment in the case, Panna Lal v. Basdeo (AIR 1933 All. 118). 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 Collector 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. It was held: that such a decision could not be characterized as a decision on the merits. The order dismissing the suit therefore did not come within the purview of O. XVII, rule 3, but was one under O. IX, r. 8 of the Code, and could be set aside by the Assistant Collector under O. IX, rule 9 or under the inherent jurisdiction vested in Courts by S.

151. In either case the order was not appeal able 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 Relation 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 a to the correctness, legality, or propriety of such order, and may pan 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.