LAWS(RAJ)-1987-11-28

MOHAMMED AND SONS Vs. MOHAMMED AYUB

Decided On November 25, 1987
MOHAMMED AND SONS Appellant
V/S
MOHAMMED AYUB Respondents

JUDGEMENT

(1.) THE two revisions involve common questions and therefore, they are being disposed by common order.

(2.) BRIEFLY stated, the facts giving rise to these revisions are that there was a firm styed as M/s Mohammed and Sons, which was started somewhere in the year 1951 by Mohammed and his sons. It carried on the business of gypsum. Non -petitioner Mohd. Ayub claims to be an employee of this firm. He filed several claims against the firm Mohammed and Sons before the Payment of Wages Authority, one claim being No. PWA 65/80 was for wages for February, 1979 to December, 1979 and other claims 11 in number in all, and all these claims were consolidated. In some of them, the names of various partners of the firm Mohd. and Sons were stated and in some others only the name of the firm Mohd. and Sons was stated as the person responsible for payment of wages to the claimants. In the other claim No. PWA 65/80, name of the firm alone was mentioned in Col. 3 -C of the application. It appears that on 24 -4 -1981, all these claims were dismissed in default. Shri Mohd. Ayub filed application for restoration of these claims, on 20 -5 -81, but the same also were dismissed in default. Thereafter, other applications for restoration of the said applications were filed on 4 -12 -1981 and after contesting these application were also dismissed on 31 -12 -1983. Mohd. Ayub thereupon filed two appeals before the learned Additional District Judge, Nagaur and in these two appeals he only impleaded one Yusuf as respondent. He neither impleaded the firm M/s Mohd. and Sons nor any other partner thereof. Before the learned Additional District Judge, two applications were filed by Abdul Waheed and the other by some of other partners of the firm praying that they may be impleaded as respondents in the appeals since their interests were vitally effected. So far as Abdul Waheed is concerned, it was further stated that in a suit for rendition of accounts pending between the partners of the firm, Shri Abdul Waheed bad been appointed as interim receiver by this Court on 5 -1 -1982 in Civil Misc. Appeal No. 86/86 and as a Receiver of the firm, he is interested in the disposal of the appeals. It was also stated that the only respondent, who had been impleaded in these appeals, viz. Shri Yusuf, was father -in -law of the appellant and there was collusion between the two and Shri Yusuf was bent upon harming the partners and helping his son -in law. This application appears to have been opposed by the appellant before the learned Additional District Judge and the learned Additional District Judge, by his order dated 30 -7 -1987, dismissed these applications on the ground that there had been a change in the constitution of the firm and that original firm Mohd. and Sons did not continue and had been dissolved. Therefore its partners or the Receiver cannot be deemed to be necessary parties to the appeals. He was also of the opinion that the applications were belated. Aggrieved by the dismissal of these applications, these two revisions have been filed by the alleged partners as well as Abdul Waheed.

(3.) A preliminaty objection has been raised by Shri Mohd. Ayub to the effect that revision under Section 115, CPC is not maintainable against the order of the learned Additional District Judge as he is persona designate under the Payment of Wages Act and not court subordinate to this Court. In this connection, he has placed reliance on Kaliash Chandra Sharma v. Union of India and Ors. 1984 RLR 740. Learned Counsel for the petitioners submits that the District Judge hearing appeals against the orders of the authority under the Payment of Wages Act is not persona designate but is a court subordinate to this Court within the meaning of Section 115, CPC and therefore, the revision is maintainable. He has placed reliance upon Bhonwari Singh v. Dy CEM Loco Shops W. Rly 1958 RLW 420. I have carefully considered the rival contentions of the parties. The Division Bench of Court in Bhonwari Singh's case (supra), has clearly laid down that the District Judge hearing the appeals under Section 17 of the Payment of Wages Act is not persons designate but is a court subordinate to the High Court and revision aga:nst his order lies to the High Court, I am bound by this Division Bench decision and in this view of the matter, the preliminary objection deservea to be rejected. It may however, be added that so far as the authority relied upon by Shri Mohd. Ayub i.e. Kailash Chandra's case (supra) is concerned, it does not lay down that the revision against the order passed by the District Judge in exercise of his powers under Section 17 of the Payment of Wages Act, is not maintainable. What the learned Judge has observed is - -