- (1.) THIS is an application by Bhanwri Singh under Arts. 226/227 of the Constitution against the appellate order of a District Judge in a matter under the Payment of Wages Act.
(2.) A preliminary objection has been taken that no writ application lies as the applicant could apply in revision against the appellate order of the District Judge and had actually applied in revision to the Judicial Commissioner, Ajmer (from where this case has come to us under the States Re-organization Act of 1956 ). That revision came up for hearing on the. 9th of September, 1956 and was not pressed and consequently dismissed. It was thereafter that the present application was made and the contention on behalf of the opposite parties is that the applicant had the remedy of going in revision and had availed of it and the order in revision had gone against him and it is, therefore, no longer open to him to file a writ application in the High Court because that would amount to the High Court sitting in judgment in its extraordinary jurisdiction over its order in its ordinary jurisdiction. The first question, therefore, that arises is whether a revision lies against the order passed by a District Court on appeal under sec. 17 of the Payment of Wages Act. Sec. 17 provides for an appeal to the District Court and as the appeal lies to the District Court, any order passed by the District Court in appeal becomes revisable under sec. 115 of the Civil Procedure Code by the High Court. This position of the law cannot be disputed unless it be held that the District Court acting under sec. 17 of the Payment of Wages Act is a persona designate. This matter whether the District Court, when it acts under sec. 17 of the Payment of Wages Act, is a Persona designate or a court has come up for decision before a number of High Courts and the unanimous opinion of the High Courts is that the District Court, when it acts under sec. 17, is not a persona designate and, therefore, a revision lies to the High Court under sec. 115 of the Code of the Civil Procedure. Reference in this connection may be made to the following cases : - Debidutt Dube vs. Central India Electrical Supply Co. Ltd , Lahore (1) Jogendra Nath Chatterjee & Sons vs. Chandreswar Singh (2), Rajkumar Mills Ltd. vs. Inspector, Payment of Wages, Madhya Bharat, Indore (3 ). No case of any High Court holding a contrary view has been shown to us. We are, therefore, of opinion that a revision lies against the order of the District Judge on appeal under sec. 17 of the Payment of Wages Act. In this case the applicant had filed a revision before the Judicial Commissioner of Ajmer. When it came for hearing, he did not press it and it was dismissed on the ground that it was not being pressed. In these circumstances, we must hold that the applicant had availed himself of the remedy to come to the High Court and when the case came for hearing, allowed the revision application to be dismissed. In these circumstances, it was not open to him to file a writ application in the same court when he did not pursue the remedy open to him by way of revision and voluntarily allowed the revision to be dismissed. Learned counsel for the applicant has drawn our attention to Abdul Majid vs. Jawahir Lal (4 ). That is a decision of their Lordships of the Privy Council in which they held that where an appeal was dismissed for non-prosecution, it amounted as if there was no appeal at all. On the analogy of this case, learned counsel argued that as the revision was dismissed because it was not pressed, we should take it that there was no revision at all. We are of opinion that there is a great difference between a case being dismissed for non-prosecution and a case being dismissed because the party is present and says that he does not want to press the case. In the present case, the revision was not dismissed for non-prosecution. It was dismissed because the applicant did not want to press it, presumably because he felt that there was nothing on the merits. In these circumstances, we are of opinion that the applicant having gone to the Judicial Commissioner's court in revision and having failed to press that remedy, cannot come again to that very court in writ in its extraordinary Jurisdiction. We, therefore, uphold the preliminary objection and dismiss the application on this preliminary ground. In the circumstances, we pass no order as to costs. .;