The dismissal of an application for failure to lead evidence can operate as res judicata, rendering a subsequent application for the same relief not maintainable.

JUDGMENT :

CHAINANI, J.

1. In 1960 the petitioner had made an application for recovery of overtime wages, which he claimed were due to him on account of his working on Sundays from 1956 to 1960. After several adjournments the matter came up for hearing on August 20, 1962. On that date the petitioner's advocate, Sri Kamerkar, withdrew his appearance with the consent of the petitioner. The petitioner was called upon to proceed further with the matter, but he did not lead any evidence. The labour court, therefore, dismissed the application of the petitioner on August 20, 1962. The petitioner did not appeal against this order. On 5 March, 1963 the petitioner made a second application, in which he claimed the same relief which he had claimed in the previous application. The labour court held that the application was not maintainable as the decision in the previous application operated as res judicata. That order is being challenged before us.

2. Sri Chitale, who appears on behalf of the petitioner, has contended that the view taken by the labour court is erroneous. He has argued that a decision cannot operate as res judicata if it is not given on merits. He has relied on the decision of this Court in Laxmibai v. Ravji 31 Bom. L.R. 400, in which it was held that a dismissal of an application for execution of a decree on the ground of the absence of the applicant's pleader does not operate as res judicata in a subsequent application to execute the decree on merits. It has, however, been held that a matter will be said to have been heard and finally decided notwithstanding that the former suit was disposed of by dismissal owing to plaintiff's failure to adduce evidence at the hearing - see Mulla's Civil Procedure Code, 13th Edn., p. 97, and Kartick Chandra Pal v. Sridhar Mandal ILR 12 Cal. 563. In the present case the petitioner was present in Court on 20 August, 1962. He did not lead any evidence in support of the averments in his application. Before the labour court could have granted him any relief, it was necessary for the labour court to find whether the petitioner had worked on any Sundays and if so on which Sundays and during what period. No evidence on these points was led. The application was, therefore, dismissed. Such dismissal would operate as res judicata as held by the Calcutta High Court in Kartick Chandra Pal v. Sridhar Mandal ILR 12 Cal. 563 (vide supra). We cannot, therefore, say that the view taken by the labour court is wrong.

3. Rule discharged. No order as to costs.