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Appeal No. HYD-475 of 1971, decided on 29th September 1971.

S. 37 ‑Appeal‑Limitation‑Condonation of delay‑Party having know ledge of ex parte order of Labour Court passed against him in his absence‑Cannot take advantage of principle of absence of know ledge, laid down by Supreme Court in Syed Mahmood Alam v. Syed Mehdi Hussain and 2 others P L D 1970 Leh. 6.

Sysd Mahmood Alam v. Syed Mehdi Hussain sand 2 others P L D 1970 Lah. 6 ref.

Nooruddin Sheikh for Appellant.

Wasiullah Qureshi for Respondent.

Date of hearing: 29th September. 1971.

This is an appeal against an award dated November 28.1970 of the First Labour Court, Karachi. The first question that requires consideration is as to whether the appeal is within time. Cinder section 37 of the Industrial Relations Ordinance, 1969, (hereinafter called the Ordinance), the appeal has to be filed within 30 days of the delivery of the award. The appeal, however, was filed on 1st June 1971.

2. The facts, necessary for disposal of the preliminary point, briefly put are these.

3. An application was made on 1st July 1970 by the respondent under section 34 of the Ordinance for re‑instatement and other reliefs. The learned Chairman of the Court ordered on 1st September 1970, to issue notice to the parties for 24th October 1970 to appear at Hyderabad. The Order Sheet of the Court dated 24th October 1970 reads as under :‑

"The respondent Paris Art Dry Cleaners have refused to accept summons of this application sent by pest as the postal endorsement shows, hence they are placed ex-parte. Call up on 23‑11‑70 at Hyderabad."

4. An affidavit was filed by the respondent on 24th November 1970. Under the orders of the Court an additional affidavit was filed on 25th November 1970. The Court on 28th November 1970, in the presence of Mr. Wasiullah Qureshi, the learned Representative for the respondent, pronounced its award fn Court, and accepted the application under section 34 of the Ordinance.

5. Mr. Nooruddin Shaikh, the learned Advocate for the appellant, relied on the case of Syed Mahmud Alam v. Syed Mehdi Hussain and 2 where (P L D 1970 Lah. 6), in support of his contention that even where section 5 of the Limitation Act has not been made applicable under any enactment of law, the Court is not precluded from applying section 18 of the Limitation Act, if the party concerned has no knowledge of the order Massed against him. In that case, the question for consideration was as to whether the authority in an appeal under section 18 of the Land Settlement Act could condone the delay in the filing of the appeal in the absence of any provision for applying section 5 of the Limitation Act. The learned Judges of the High Court came to the conclusion that where an order was a nullity having been passed in the absence of the party concerned, the Court could compute the running of the limitation from the date that the party concerned came to know of the order affecting his interest. The, relevant observation reads as under:-

"If, in a given case, a person is able to establish that he had the right of hearing; and in spite of that the order was passed or action was taken against him without his knowledge, he will be entitled to plead, while filing an appeal which, prima facie is time‑barred, that the time will start running against him only from the date of his knowledge about the order."

6. Accepting the principle laid down by their Lordships in the case of Syed Mahmud Alam, Mr. Wasiullah Qureshi, the learned Representative for the respondent, relied on the follow ing paragraph of an application, which purports to be for condonation of delay and is signed by Haji Mohammad Ibrahim, the appellant before me :‑

"That the delay in submitting this appeal in time was due to the fatal accident as stated above with which all of us met on 17‑4‑1971 while we were going to present this appeal before this Honourable Court for adjudication.

7. It would be necessary to mention at this stage that the only persons who met with an accident were Mr. Shamsuddin, Advocate for the appellant and his Representative Mr. Ghulam Rasool. This fact is mentioned earlier in the application. It, therefore, follows that Haji Mohammad Ibrahim, the appellant before me was free to file the appeal on the next day. If not, on the next day within a reasonable time. The appeal was, however, filed on 1st June 1971, much beyond 30 days.

8. Another fact which Mr. Wasiullah Qureshi brought to my notice was that the appellant had a copy of the award, as would appear from paragraph 4 of the Memorandum of‑ Appeal, on 3rd April 1971. The relevant portion of the paragraph reads as under :‑

" . . . . The appellant was, however, supplied with a simple copy of the award on 3‑4‑1971 by the said Court as such the appellant having come to know with the contents of the award for the first time on 3‑4‑1971 has preferred this petition of appeal."

9. It is clear that the appellant knew of the existence of the award on 3‑4-1971. He could, therefore, file the appeal on the same date or the next day. But he waited till 1st June 1971. In these circumstances, the appellant having come to know of the existence of the award on 3rd April 1971, cannot take advantage of the case of Syed Mahmud Alam. The appeal is dismissed as time‑barred.

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