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Madan Kumar and ors. Vs. Surendra Kumar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Regular Second Appeal No. 358 of 1964
Judge
Reported in1970WLN617
AppellantMadan Kumar and ors.
RespondentSurendra Kumar and ors.
DispositionAppeal dismissed
Excerpt:
.....application under section 15. hence, in the present case it must be held that the jurisdiction of the civil court is barred under section 22 of the act and the suit is also barred by it inasmuch as the remedy available to the plaintiff was to make an application under section 15 of the act. 9. in view of my decision on the first point that the suit was barred under section 22 of the act, it is not necessary to decide the question whether the voucher amounted to a promissory note and was inadmissible in evidence for having not been stamped in view of the provisions of the negotiable instruments act and, at any rate, learned counsel for the appellant failed to convince me how the finding of the trial court in this respect was incorrect?.....subject matter of issues no. 2 and 4 which, being issues of law only, were taken up first aud the learned civil judge, bhilwara by his order dated 26th october, 1963 decided both the issues against the plaintiff and dismissed the plaintiff's suit.3. aggrieved by the decision of the trial court, the plaintiff filed appeal in the court of district judge, bhilwara, but was unsuccessful and has consequently come in second appeal to this court.4. learned counsel for the appellant has urged in the first instance that the suit was not for recovery of wages, but was based on the voucher signed by defendant no.2 premsingh and therefore, the civil court had jurisdiction to entertain and decide the suit.5. in order to ascertain the nature of the claim submitted by the plaintiff, it would be proper.....
Judgment:

C.M. Lodha, J.

1. The suit out of which this appeal arises was instituted by the plaintiff- appellant in the court of Civil Judge, Bhilwara on 9.8.1952 alleging the defendant- respondent used to quarry mica-mines in partnesship under the name and style of Messrs. S.K. Jain and appointed the plaintiff as an Assistant Manager on 25.11.1958 on a salary of Rs. 100/- per mensem. It was further alleged that the plaintiff served the defendants for eight monthe commencing from December, 1958 to July, 1959 and was consequently entitled to get Rs. 800/- on account of his salary . It was stated that a voucher for his salary was prepared by one of the partners named Surendra Kumar on 15.8.1959 promising that the arrears of salary due to the plaintiff would be paid by 31st August, 1959 and this voucher is alleged to have been signed by another partner, defenndant No. 2 Premsingh. Thus he claimed Rs. 800/- as arrears of salary and Rs.290/-as interest thereon.

2. Separate written-statements were filed by defendant No. 1 Suredra Kumar and defendant No.2 Premsingh who took two preliminary objections to the maintainability of the suit. It was pleaded in the first instance that since the suit was for the recovery of wages, it could have been recovered by an application under Section 15 of the Payment of Wages Act, 1936 (Act No. IV of 1936), which will hereinafter be called the Act), the suit was barred under Section 22 of the Act. The second odjection taken by them was that the voucher relied upon by the plaintiff was a promissory note and the same being unstamped was inadmissible in evidence. These objections formed the subject matter of issues No. 2 and 4 which, being issues of law only, were taken up first aud the learned Civil Judge, Bhilwara by his order dated 26th October, 1963 decided both the issues against the plaintiff and dismissed the plaintiff's suit.

3. Aggrieved by the decision of the trial Court, the plaintiff filed appeal in the court of District Judge, Bhilwara, but was unsuccessful and has consequently come in second appeal to this Court.

4. Learned Counsel for the appellant has urged in the first instance that the suit was not for recovery of wages, but was based on the voucher signed by defendant No.2 Premsingh and therefore, the Civil Court had jurisdiction to entertain and decide the suit.

5. In order to ascertain the nature of the claim submitted by the plaintiff, it would be proper to examine the contents of the plaint itself It is crystal clear from the allegations made in the plaint that the plaintiff claimed Rs.800/-on account of his salary for a period of eight months during which he had served the defendants.

6. He has not based his suit on the voucher to which no doubt a passing reference has been made in the plaint. Admittedly the voucher was signed by defendant No. 2 Premisingh only and if the plaintiff had based his claim on the voucher, he would not have impleaded the other partners of the firm Messrs. S.K. Jain, that is, defendants No. 1 Surendra Kumar and defendant No. 3 Ghisudas as defendants in the suit. He has nowhere stated that his claim for salary was extinguished on execution of the voucher by defendant Prem Singh or that there was novation of contract. It is further clear from the plaint that the plaintiff had not discharged the other partners of the firm S.K. Jain who had emyloyed him, of the liability to pay the arrears of salary. Even in the voucher itself it is abundantly clear that the amount of Rs. 800/- admitted to be due by Premsingh for which he had taken the personal liability was on account of 8 months salary of the plaintiff. As a matter of fact, the plaintiff himself did not rely on the voucher as the sole basis for claim nor did he urge this point either before the trial court or before the first appellate court. It appears that he referred to the voucher in the plaint with a view to furnish evidence in support of his claim for arrears of salary. I am, therefore, of the opinion that the claim made by the plaintiff was definitely one for the recovery of wages alleged to be due to him from the defendants. Consequently Section 22 of the Act operates as a complete bar to the enter-tainability of the present suit.

7. Learned Counsel for the appellant has then submitted that since the learned Civil Judge, Bhilwara had no jurisdiction to entertain the suit, it ought to have been returned to him for presentation to the proper court and in support of his contention, he has relied upon Jiwajirao Sugar Company Ltd., v. Benarji 1963 Iah I. J. (I) 611 wherein after holding that the civil court had no jurisdiction to entertain the plaint should be returned by the trail court to the employee-non-applicant for being presented before the appropriate tribunal.

8. It may be useful here to point out that Order 7 Rule 10 of the Code of Civil Procedure provides for return of plaint in case the court in which the plaint was presented comes to the conclusion that it ought to have been presented to the court in which the suit should have been instituted. However, Order 7 Rule 11 of the Code of Civil Procedure provides inter alia that the plaint shall be rejected in case the suit appears from the statement in the plaint to be barred by any law. Section 22 of the Act clearly provides that no Court shall entertain any suit for the recovery of wages in so far as the sum so claimed could have been recovered by an application under Section 15. Hence, in the present case it must be held that the jurisdiction of the civil court is barred under Section 22 of the Act and the suit is also barred by it inasmuch as the remedy available to the plaintiff was to make an application under Section 15 of the Act. In these circumstances, it is not Order 7 Rule 10 but it is Order 7 Rule 11(d) which will apply and the plaint must be rejected. With atmost respect, the provisions of Order 7 Rule 11 C.P.C do not seem to have been brought to the notice of the Court in Jiwajirao. Sugar Company's case 1963 Iah I. J. (I) 611 and consequently, the order for return of the plaint was passed. I am, therefore, unable to accede to the second contention of the learned Counsel that the plaint should have been returned for presentation to the proper court.

9. In view of my decision on the first point that the suit was barred under Section 22 of the Act, it is not necessary to decide the question whether the voucher amounted to a promissory note and was inadmissible in evidence for having not been stamped in view of the provisions of the Negotiable Instruments Act and, at any rate, learned Counsel for the appellant failed to convince me how the finding of the trial court in this respect was incorrect? Be that as it may, the suit did not lie to the Civil Court and was rightly rejected.

10. The result is that I do not see any force in this appeal and hereby dismiss it. But in the circumstances of the case, the parties are left to bear their own costs.


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