Gokal Chand Mital, J - (1.) Adresh Kumar was working as a Fireman Grade-C in the Northern Railway. Some adverse orders were passed against him and he filed a civil suit for declaration that he continues to be in active duty as fireman, grade-C in the Northern Railway for the period from 24.12.1980 till 7.4.1982 and should be deemed to be on duty for all intents and purposes with consequential relief regarding pay, allowances etc.
(2.) His suit was decreed ex - parte on 8.11.1982. On 11.3.1983 the Union of India through the General Manager, Northern Rail - way filed an application under Order 9 Rule 13 of the Code of Civil Procedure ('for short the Code'), for setting aside the ex-parte decree. By order dated 2nd Aug., 1983, the trial Court dismissed the application. On appeal by the Union of India, the matter was remitted to the trial Court for deciding the application afresh after affording further opportunity to the Union of India to substantiate the application. While the matter was still pending before the trial Court to consider the application of the Union of India under Order 9 Rule 13 of the Code, the Administrative Tribunal Act, 1985 (for short 'the Act'), come into force with effect from 2.9.1985 and the Central Administrative Tribunal (for short 'the Tribunal'), was co nstituted. On 18.12.1985, an application was moved on behalf of the Union of India for transferring the proceedings to the Central Administrative Tribunal in view of section 29 of the Act. The application was opposed by the employee. By order dated 11.2.1986, the trial Court ordered that the proceedings should be transferred to the Central Administrative Tribunal. This is revision by the employee.
(3.) Shri S.K. Jain, Advocate, appearing for the employee has; argued that after the decree was passed by the trial Court no suit or proceedings were pending, which could be transferred to the Tribunal under section 29 of the Act. In high lighting the argument, it is urged that the proceedings taken on an application under Order 9 Rule 13 of the Code, are independent of the main suit and cannot be considered as proceedings in the suit and therefore, the matter under Order 9 Rule 13 of the Code can be decided by the Court which passed the decree. However, in fairness he submitted, that in case the application under Order 9 Rule 13 of the Code is allowed by the trial Court, and after setting aside the ex-parte decree, the suit is revived, the suit will have to be transferred to the Tribunal, but in case the application under Order 9 Rule 13 of the Code is dismissed, there would be no proceedings, which would require determination by the Tribunal. In support of the argument that the proceedings under Order 9 Rule 13 of the Code are independent, he has relied on Hari Singh Vs. Mohammad Said, AIR 1927 Lahore, 200 and Paresh Chandra Chandra Vs. Krishna Chandra Ghosh, AIR 1984 (Notes of cases) 247, and the aforesaid decisions do support the argument.;