(1.) THIS is a miscellaneous first appeal under section 62 (2) of the Employees State Insurance Act, 1948, which, for brevity, would hereinafter be called the Act.
(2.) THE circumstances under which this appeal has been filed are these. On 26 November 1963 the Employees' State Insurance Corporation (appellant) had made to the Employees' State Insurance Court, Jabalpur, an application under section 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 2 September 1965. On that date, the appellant remained absent and the case was dismissed in default under Rule 24 (3) of the Madhya Pradesh Employees' Insurance Courts Rules, 1963, framed under section 96 of the Act. Thereupon, on 26 September 1965, the Corporation applied under Rule 24 (5) of these rules for restoration of the application. It was however, dismissed on 16 March 1966 on the ground that the Corporation had not shown that it was prevented by any sufficient cause from appearing on 2 September 1965. This appeal is directed against that order.
1960 JLJ 259 = AIR 1960 MP 256. 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 26 November 1963 made under section 75 of the Act. That being so, there is no substance in this preliminary objection.
Since an appeal lies under section 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 under section 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 2 September 1965 filed within sixty days thereof. Secondly, it is not 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.
(3.) RULE 24 reads as follows:
"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 under section 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 hearing, 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 for 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 (3), 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, he 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 as substantial reproduction of the provisions of Order 9 of the Code of Civil Procedure. 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 Rules 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 Va. Sheolal ILR 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 Vs. Gobardhandas AIR 1955 Cal 212, Lord Williams, J. observed:
"And of course, where special rules have been made by or for the Court, which forbid the bringing of a fresh suit, the plaintiffs are bound by them so long as these rules are intra vires of the rulemaking authority; such for example are to be found in Order 9, Civil P.C. But there is no similar provision in Rule 36 or elsewhere in the Rules of this Court or in the Code of Civil Procedure which is relevant to the present discussion............ unfortunately it seems to follow that where no such 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 provisions of Rule 36 from bringing a fresh suit upon the same cause of action, except the law of limitation." (Page 217)
As pointed out by this Court in Employees' State Insurance Vs. Madhya Pradesh Government 1963 JLJ 310 = 1963 MPLJ 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.
1968 JLJ 266 = 1967 MPLJ 692. In view of these decisions, I am, at present advised, not persuaded to accept the contrary contention of the appellant's counsel. ;