Employees State Insurance Corporation Jabalpur vs Harcharan Singh and another

K. L. Pandey, J.

This is a miscellaneous first appeal u/s 82(2) of the Employees'' State Insurance Act, 1948. which, for brevity, would hereinafter be called the Act.

The circumstances under which this appeal has been filed are these. On 26th November 1903, the Employees'' State Insurance Corporation (appellant) had made to the Employees'' State Insurance Court. Jabalpur, an application u/s 75 of the Act for recovery from the respondents, who were said to be employers, the contribution amounting to Rs. 567.74 which was payable by them under the provisions of the Act. The case was fixed "for filing documents and framing issues" on 2nd September 1965. On that date, the appellant remained absent and the case was dismissed in default under rule 24 (8) of the Madhya Pradesh Employees'' Insurance Courts Rules, 1953, framed u/s 96 of the Act. Thereupon, on 26th September 1965, the Corporation applied under rule 24 (5) of these Rules for restoration of the application. It was, however, dismissed on 16th March 1966 on the ground that the Corporation had not shown that it was prevented by any sufficient cause from appearing on 2nd September 1965. This appeal is directed against that order.

The learned counsel for the respondents raised a preliminary objection that the appeal, which sought to challenge an interlocutory order dated 16th March 1966 and not the final order dated 2nd September 1965, was incompetent. In support of the point, the counsel relied upon Jiwajirao Cotton Mills Ltd. Vs. Employees'' State Insurance Corporation, . Even apart from the consideration that section 82(2) of the Act, which provides for appeals, is in terms not so limited, the order challenged in this appeal, unlike the one in the case just mentioned, is a final order in the sense that it had finally disposed of the application dated 26th November 1963 made u/s 75 of the Act. That being so, there is no substance in this preliminary objection.

Since an appeal lies u/s 82(2) of the Act against an order of an Employees'' Insurance Court only when it involves a substantial question of law, the appellant''s counsel argued that the application u/s 75 of the Act could not at all be dismissed in default under rule 24 (3) of the Rules because such a provision which defeated the purpose of the Act, must be regarded as ultra vires. In the first place, this contention could be raised only in a direct appeal against the order of dismissal for default dated 2nd September 1965 filed within sixty days thereof. Secondly, it is Act open to one who has taken advantage of rule 24, applied for restoration and then appealed against the restoration application Finally as I will show immediately, the provisions of rule 24 do not really defeat the purpose of the Act.

Rule 24 reads as follower

24 (1) On the day fixed in the summons for the opposite party to appear and answer, the parties shall be in attendance at the Court in person or by their respective legal practitioners or any other person authorised u/s 79 and the application shall then be heard unless the hearing is adjourned by the Court.

(2) When neither party appears when the application is called on for hearing, the Court may make an order that the application be dismissed

(3) When the opposite party appears and the applicant does not appear when the application is called on for bearing, the Court shall make an order that the application be dismissed unless the opposite party admits the claim or part thereof in which case the Court shall make an order against the opposite party upon such admission and where part only of the claim has been admitted, it shall dismiss the case so far as it relates to the remainder.

(4) Where the applicant appears and the opposite party after receiving the summons fails to appear when the application is called on for hearing, the Court may proceed ex parte.

(5) Where the application is wholly or partly dismissed under sub rule ''2) or (St. the applicant may within thirty days of such dismissal apply in Form 6 for an order to set the dismissal aside and the Court shall, if it is satisfied that he was prevented from appearing when the proceeding was called on for hearing due to any sufficient cause, make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit and may proceed with the case or appoint a day for proceeding with the same:

Provided that no order under this sub-rule shall be made in respect of an application which is dismissed under sub-rule (3) unless notice of the application has been served in Form 7 on the opposite party.

(6) In any application in which an ex parte order has been passed against the opposite party, be may within thirty days from the date of such order apply in Form 6 to the Court which passed the order, to set it aside and, if the Court is satisfied that he was prevented from appearing when the proceeding was called on for hearing due to any sufficient cause, it may after serving notice thereof to the applicant in Form 7 make an order setting aside the order upon such terms as to costs or otherwise as it thinks fit and may proceed with the hearing of the case or appoint a day for proceeding with the same.

It will be readily seen that these provisions are a substantial reproduction of the provisions of Order 9 of the CPC There is. however, one important difference. Order 9, rule 9 of the Code provides that, when a suit is dismissed in default of the plaintiff under rule 8, the plaintiff is precluded from bringing a fresh suit in respect of the same cause of action and his only remedy is an application for restoration of the suit. Rule 24 (5) of the Bales does not, however, provide that a fresh application for the same purpose would not lie. The principle of res judicata has no application to the dismissal of a suit or other proceeding for default: Uttamchand v. Sheolal 1954 NLJ 215 : AIR 1954 Nag, 234 : I L R 1954 Nag. 447. The specific provision of Order 9, rule 9, however, creates a special disability which, in such a case, precludes the plaintiff from bringing a fresh suit in respect of the same cause of Action. When there is no such rule, a fresh suit on the same cause of action is not incompetent. So, in Shailbala v. Gobardhandas AIR 1955 Cal. 212. Lord Williams J- observed:

And of course, where special rules have been mode by or for the Court, which forbid the bringing of a fresh suit, the plaintiff''s are bound by them so long as these rules are intra vires of the rule-making authority; such for example are to be found in Order 9, Civil Procedure Code. But there is no similar provision in rule 36 or elsewhere in the Rules of this Court or in the CPC which is relevant to the present discussion.............. Inferentially it seems to follow that where no Bach rules exist, no such preclusion is intended to apply. In the absence of such rules, I know of nothing to prevent a plaintiff, whose suit has been dismissed under the pro. visions of rule 36 from bringing a fresh suit upon the same cause of action, except the law of limitation.

As pointed out by this Court in Employees'' State Insurance v. Madhya Pradesh Government 1963 M P L J 444. the provisions of the Act do not contemplate that the right of the Corporation to recover any contribution should be extinguished by lapse of time. It follows that the Corporation is not precluded from making a fresh application to recover the same contribution, That I think is a complete answer to the contention that any provision or rule 24 is ultra vires,

The appellant''s counsel has not challenged on merits the conclusion that the Corporation had not shown any sufficient cause for not appearing on 2nd September 1965. Even so, it is urged that since the application was fixed for framing issues and filing documents, it was not a date of hearing and, there-fore, neither the presence of the Corporation was necessary on that date nor could it be dismissed in default of its appearance. The consensus of judicial opinion, however, is that a date fixed for framing issues is a date of hearing on which, if the plaintiff does not appear, the suit is liable to be dismissed: Firm of Har Chand Rai-Anand Ram and Others Vs. Raja Ram Bahadur Singh and Another, , Velayatha Mudiliar v. Sundaram Pillai A I R 1922 Mad. 416, AIR 1925 682 (Oudh) . and Khadau v. Lakahn Sao 1967 M P L J 892. In view of these decisions, I am, at present advised, not persuaded to accept the contrary contention of the appellant''s counsel.

The result is that the appeal fails and is dismissed. Costs shall follow that event. Hearing fee Rs. 25.