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Appeal No. Lhr-1068 of 1978, decided on 28th February, 1982.

---S. 25-A--Civil Procedure Code (V of 1908), O. VIII, rr. 1 & 10- Grievance petition against dismissal from service--Notice issued by Labour Court to defendant for specific date--Defendant's request for adjournment enabling him to file written reply, refused by Court and judgment pronounced against him--Order challenged before Tribunal--Held: No direction having been issued by Court to file written statement, there was no justification to pronounce judgment--Case remanded for decision on merits.

Riaz Haider Zaidi for Respondent.

Date of hearing: 2nd February, 1982.

The facts giving rise to this appeal are that during the duty-hours of the respondent as Chowkidar two batteries of the appellant were stolen. He was, therefore, charge-sheeted and his services were terminated. He brought a grievance petition to the Labour Court in which notice was issued to the appellant for 18th of November, 1978. On the said date, the case was called thrice with intermitent, but nobody appeared on behalf of the appellant. Again the case was called. Sikandar Hayat, Labour Officer, appeared and requested for adjournment for filing written reply for the reason that he had prepared the draft which was to be got signed. The learned lower Court refused to adjourn the case and pronounced the judgment against the appellant. The said order has been challenged in this appeal.

2. There is no provision in the Industrial Relations Ordinance for pronouncing judgment if written reply is not filed and the learned lower Court appears to have acted under Order VIII, rule 10 of Civil Procedure Code. The relevant Rule reads as under:-

"Where any party from whom a written statement is so required fails to present the same within the time fixed by the Court, the Court may pronounce judgment against him or make such order in relation to the suit as it thinks fit."

3. Examination of rule 1 of Order VIII also appears to be necessary.

It reads as under:-

"The defendant may, and, if so required by the Court, shall at or before the first hearing or within such time as the Court may permit present a written statement of his defence."

4. It is apparent from rule 1 that a defendant has option to file a written statement but he is bound to file the written statement if he has been required by the Court to do so. In the present case, there was no direction to the appellant by the Court to file a written statement. The order-dated 12-10-1978 is to the effect that "notice to the respondent for 18th November, 1978". It is manifest that there is no direction in the order for filing a written statement. Rule 10 applies, when the Court has required a party to file a written statement and has failed to do so. Since there was no direction to the appellant to file written statement, there was no justification for the learned lower Court to pronounce the judgment. So rule 10 was not applicable. If the Court had adjourned the case on the request of the appellant directing him to file a written reply and he had failed to do so of course rule 10 would have been attracted. Even otherwise there was no justification to pronounce judgment and at least one adjournment should have been granted if not unconditionally on the condition of payment of costs.

5. As a result of the observations made above, I accept the appeal and setting aside the impugned order remand the case with the direction that the last opportunity be given to the appellant to file written reply and the case be decided on merits.

M. I.

Appeal accepted. Case remanded.

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