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Appeal No. KAR‑696 of 1981, heard on 9th February, 1982.

‑‑‑ S. 25‑A read with Civil Procedure Code (V of 1908), O. XVII, rt. I and 3‑‑Grievance Petition‑Adjudication by Labour Court‑Procedure and practice‑Adjournment‑Discretion of Court‑ Discretion to be exercised in judicious and reasonable manner Request of adjournment by representative of petitioner on grounds that petitioner had gone on Tablighi Programme‑Rejected and main petition dismissed due to failure of petitioner to appear for cross -examination‑Previously adjournments granted 4 times to respon dent and previous adjournment made not on request of petitioner for his appearance for cross‑examination‑Case in circumstances, held, governed by rule 1 of Order XVII of Civil Procedure Code, 1908 and provisions of r. 3 thereof not attracted‑Extreme penalty of dismissal of grievance petition, held, uncalled for‑Labour Court, in circumstances; held, should have granted adjournment on payment of costs‑Certain Muslims consider that active participation in TABLIGH is a part of their religious duty hence Labour Court should have given due consideration to this factor of prayer for adjournment‑Impugned decision of Labour Court set aside by Appellate Tribunal and case remanded for decision on merits.

Farid Sons and others v. Muhammad Ishaq Qureshi P L D 1967 Azad J & K 56 and Dalel Khan v. Province of West Pakistan and others P L D 1970 Quetta 79 rel.

M. M. Jeelani for Appellant.

Syed Hasan Zafar for Respondents.

Date of hearing: 9th February, 1982.

This appeal is directed against the order, dated 19th November, 1981, of the learned‑ IVth Labour Court, dismissing the grievance petition of the appellant for want of evidence. The said order was made on the application for adjournment filed by the learned representa tive of the appellant. The application and the order passed thereon read as follows:‑

"BEFORE THE HON'BLE IVth SIND LABOUR COURT AT KARACHI

S. WALIUR RAHMAN ‑Applicant

Versus

Messrs N. C. C.‑ Respondent

It is respectfully submitted on behalf of the applicant that the applicant has gone to participate in 'Tablighi Programme alongwith "Tablighi Jamaat" and he is expected to come back by the last week of November, 1981. It is therefore humbly prayed that in the interest of justice the instant matter may please be adjourned to some other suitable date in the firs week of December, 1981.

Sd/‑

Representative of the Appellant

Karachi, dated 19th November 1981

Order on Order Sheet. Dated 19th November. 1981

Mr. M. M. Jeelani for applicant Mr. S. A. Majeed for respondent. Applicant is absent. His cross‑examination cannot be conducted. The application for adjournment moved by Mr. Jeelani does not disclose a sufficient and valid cause. It is refused. Main applica tion is dismissed for want of evidence.

Sd/‑ 19th November, 1981. Presiding Officer.

IV Sind Labour Court.

Karachi".

2. The above application and the order passed thereon were made in proceedings arising out of Application No. 146/81, filed by the appellant under section 25‑A, I.R.O., challenging the termination of his services by the respondent company, by its order dated 18th March, 1981. The said grievance petition was filed on 31st May, 1981 and notice was issued to the respondent company for 6th July, 1981. On the latter date the respondent company was absent and unrepresented but submitted an application for adjournment, which was granted and .the matter was adjourned to 8th August, 1981 for its reply statement. On 8th August, 1981, the learned Advocate for the respondent‑Company submitted an application for adjournment and the matter was adjourned to 13th August, 1981 for filing of reply statement. On 13th August, 1981 the reply statement was filed by the respondent and the matter was adjourned to 27th September, 1981 for the affidavit of the appellant. On the latter date an application for adjournment was submitted by the learned representative of the appellant and the matter was adjourned to 9th September, 1981. It appears that in the meanwhile the case was transferred from the Vth Labour Court where it had been pending to the learned Fourth Labour Court, which fixed the hearing of the case for 27th September, 1981. On the latter date, the affidavit of the appellant was filed and the case was adjourned to 15th October, 1981 for cross examination of the appellant and the hearing of the applica tion filed by him for production of certain record by tae respondent company. On 15th October, 1981, an application was submitted on behalf of the respondent company requesting for time to produce the record required by the appellant and the matter was adjourned to 29th November, 1981 for the same purpose. On this date also it appears that the record required to be produced by the respondent company was not produced and accordingly the matter was adjourned to 19th November, 1981 for the cross‑examination of the appellant, after an order was passed on the application of the appellant directing the respondent company to produce the record mentioned in the said application It is not clear from the record whether on 19th November, 1981 the record required to be produced by the respondent‑Company was in fact produced by it. However, on the said date, an application was submitted by the learned representative for the appellant requesting for adjournment. The said application and the order passed thereon by the learned Labour Court have been repro duced in extenso in the earlier part of this judgment. From the above recital of facts it would appear that the respondent company had sought and been granted two adjournments for filing of written statement and bad been granted two adjournments for the production of the record mentioned in the application of the appellant, dated 19th November, 1981. On the other hand, one adjournment, on 27th August, 1981 was granted to the appellant for filing of his affidavit. The question. therefore, that has to be considered is whether in the circumstances of the case, the order of the learned Labour Court, refusing adjournment to the appellant and dismissing his case for want of evidence, was proper and justified.

3. Although the hearing for, 19th November, 1981 was fixed for the cross‑examination of the appellant, the earlier hearing fixed on 29th October, 1981 does not appear to have been adjourned at the instance of the appellant, but was adjourned for the production of the record by the respondent. As such it does not appear that on 29th October, 1981, time was given to the appellant, at his request, to appear for the purposes of cross‑examination. The provisions of Order XVII, rule 3, C. P. C., would, therefore, not appear to be attracted in the instant case and the case would be governed by the provision of rule 1 of the said Order. The principles governing the grant of an adjournment are well established. The Azad Jammu and Kashmir High Court in the case of Farid Sons and others v. Muhammad Ishaq Qureshi (P L D 1967 Azad J & K 56), has expressed itself in this behalf as follows:-

"The granting of an adjournment to a party to a suit is left to the discretion of the Court. This discretion is not subject to any definite rule but is required to be exercised in a judicious and reasonable manner. The settled rule in an adjournment is that it should be exercised after taking into consideration the conduct of a party in the suit and the opportunity he has had of getting ready and the truth and the sufficiency of reason alleged by him. The main object of investing the discretion in the Court is to enable it to prevent a party from improperly delaying proceedings."

I would also like to refer on this point to a Division Bench judgment of the defunct High Court of West Pakistan at Quetta reported as Dalel Khan v. Province of West Pakistan and others (P L D 1970 Quetta 79). In that case the suit brought by the plaintiff claiming exclusive right to running water in the River Hun within particular limits was dismissed for non‑prosecu tion but was again restored. After the issues were framed the case was adjourned and was ordered to be put up on 15th August, 1968 for filing the list of witnesses. On that date, an application teas submitted by the learned counsel of the appellants requesting for adjournment on the ground that he had been unable to contact his client in order to receive instructions and, accordingly, the case was adjourned for filing the list of witnesses by the parties to 13th September, 1968. Again, on 13th September, 1968, the plaintiff's counsel was unable to file the list of witnesses but pro mised that he would produce the witnesses before the Court without putting in the list. The case was thereupon adjourned to 22nd October, 1968. On the latter date the plaintiff being absent the suit was dismissed by the trial Judge under Order XVII, rule 3, C. P. C. The High Court while holding that dismissal of the suit under Order XVII, rule 3, was illegal and remanding the case to the trial Court for proper orders obser ved a follows:‑

"Ordinarily the Court should have granted an adjournment on payment of costs. The dismissal of the suit under Order XVII, rule 3, C. P. C. was hardly called for and is illegal. We are in agreement with the submission made by the learned counsel for the appellants that dismissal under Order XVII, rule 3, C. P. C. is untenable. It is desirable that litigants should get decision on merits in their cause. If the plaintiffs fail to comply with the order of the Court repeatedly then an action can be taken against them under the relevant provision of law. We should make it clear that extreme measures should only be taken if the Court comes to the conclu sion that the plaintiffs by their conduct had made it impossible for the Court to proceed with the trial of the suit and the con tinuation of the proceedings was only intended to cause harass ment to the defendants."

4. The extreme penalty of dismissal of the grievance application by the learned IVth Labour Court appears to me to have been un‑called for in the circumstances of the case. As observed by the learned Judges of the West Pakistan High Court ordinarily the Court should have granted adjournment on the payment of costs. Furthermore, as appears from the record of the case, while as many as four adjournments had been granted to the respondent company only one adjournment had been given to the appellant. There are certain Muslims who consider that active participation in Tablighi' is a part of their religious duties. The learned Labour Court ought, therefore, to have given due consideration to this factor. Moreover it would not have benefited the appellant to delay the proceedings for he was admittedly out of service and nothing was to be gained by him by prolonging the proceedings.

5. For the reasons discussed by me above, I would set aside the decision of the learned Labour Court and would remand the case to it to be dealt with on merits.

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